uniform trust code - Kansas Judicial Branch

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to revoke is reserved in the trust instrument. K.S.A. 58-2417.
Subsection (b) is new.
Subsection (c)(1) arguably expands current law by allowing substantial compliance. Kansas
law requires specific provisions in a trust document to be followed. In re Estate of Sanders, 261
Kan. 176, Syl. 5 and 6, 929 P.2d 153 (1996) (if settlor reserves power to revoke trust only in a
particular manner and under particular circumstances, settlor can revoke trust only in that manner
or under those circumstances).
Subsection (c)(2) arguably expands current law. The Kansas Supreme Court has held that
the revocation of an inter vivos trust requires an express statement and cannot be accomplished
through implication. Sanders, 261 Kan. 176, Syl. 8. A settlor's general testamentary disposition of
his or her property is ineffective to exercise a general or unrestricted power to revoke or modify an
inter vivos trust. Sanders, 261 Kan. 176, Syl. 7.
Subsection (d) is new.
Subsection (e) conforms to Kansas law regarding amendment and revocation. See Muller
v. Bank of America, N.A., __ Kan. App. 2d __, __ P.3d __ (2000) (unless settlor expressly states
otherwise in trust document or power of attorney, right to amend or revoke a trust is personal to
settlor and nondelegable). Provision regarding distribution of trust property is new.
Subsections (f) and (g) are new.
In subsection (f), the Kansas drafting committee changed the UTC by striking the phrase,
“or, if no [conservator] has been appointed, a [guardian] of the settlor” and by striking the phrase
at the end of the subsection, “or [guardianship].”
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UTC Comment
Subsection (a), which provides that a settlor may revoke or modify a trust unless the terms
of the trust expressly state that the trust is irrevocable, changes the common law. Most States follow
the rule that a trust is presumed irrevocable absent evidence of contrary intent. See Restatement
(Second) of Trusts § 330 (1959). California , Iowa, Montana, Oklahoma, and Texas presume that
a trust is revocable. The Uniform Trust Code endorses this minority approach, but only for trusts
created after its effective date. This Code presumes revocability when the instrument is silent
because the instrument was likely drafted by a nonprofessional, who intended the trust as a will
substitute. The most recent revision of the Restatement of Trusts similarly reverses the former
approach. A trust is presumed revocable if the settlor has retained a beneficial interest. See
Restatement (Third) of Trusts § 63 cmt. c (Tentative Draft No. 3, 2001). Because professional
drafters habitually spell out whether or not a trust is revocable, subsection (a) will have limited
application.
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