Section 13.38.220. Judicial control of discretionary powers.

   (a) A court may not change a fiduciary's decision to exercise or not to exercise a discretionary power conferred by this chapter unless the court determines that the decision was an abuse of the fiduciary's discretion.
   (b) If a court determines that a fiduciary has abused the fiduciary's discretion regarding a discretionary power conferred by this chapter, the remedy is to restore the income and remainder beneficiaries to the positions they would have occupied if the fiduciary had not abused the fiduciary's discretion, according to the following rules:
        (1) to the extent that the abuse of discretion has not resulted in a distribution to a beneficiary or has resulted in a distribution that is too small, the court shall require the fiduciary to distribute from the trust an amount to the beneficiary that the court determines will restore the beneficiary, in whole or in part, to the beneficiary's appropriate position;
        (2) to the extent that the abuse of discretion has resulted in a distribution to a beneficiary that is too large, the court shall restore the beneficiaries, the trust, or both, in whole or in part, to their appropriate positions by requiring the fiduciary to withhold an amount from one or more future distributions to the beneficiary who received the distribution that was too large or by requiring that beneficiary or that beneficiary's estate to return some or all of the distribution to the trust, notwithstanding a spendthrift or similar provision;
        (3) if the abuse of discretion concerns the power to convert a trust into a unitrust, the court shall require the trustee either to convert into a unitrust or to reconvert from a unitrust;
        (4) to the extent that the court is unable, after applying (1) - (3) of this subsection, to restore the beneficiaries, the trust, or both to the positions they would have occupied if the fiduciary had not abused the fiduciary's discretion, the court may require the fiduciary to pay an appropriate amount from the fiduciary's own funds to one or more of the beneficiaries, the trust, or both.

Notes

History

(Sec. 2 ch 145 SLA 2003)