uniform trust code - Kansas Judicial Branch

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passes to the persons who would have taken the property had the power not been conferred.
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Kansas Comment
Subsection (a)(1) conforms to Kansas law. See Peterson v. Peterson, 10 Kan. App. 2d 437,
700 P.2d 585 (1985) (equity will set aside a trust where it is not the pure, voluntary, well understood
act of the grantor’s mind); 59-601 (person must be of sound mind to dispose of property by will).
Subsection (a)(2) conforms to Kansas law. See Taliaferro v. Taliaferro, 260 Kan. 573, Syl.
1, 921 P.2d 803 (1996) (express trust requires intention by settlor to create a trust).
Subsection (a)(3) conforms to Kansas law as to the requirement of a definite beneficiary.
See In re Freshours Estate, 185 Kan. 434, 440, 345 P.2d 689 (1959) (private trust requires a
beneficiary who is definitely ascertained at the time of the creation of the trust or definitely
ascertainable within the rule against perpetuities). See later sections regarding other types of trusts.
Subsection (a)(4) conforms to Kansas law. See generally Shumway v. Shumway, 141 Kan.
835, 44 P.2d 247 (1935) (requirement for valid trust is that trustee must accept and handle subject
matter of trust as a trust); K.S.A. 58-1201 et seq. (Uniform Trustees’ Powers Act).
Subsection (a)(5) conforms to Kansas law. See Matthews v. Salvage, 195 Kan. 501, 407 P.2d
559 (1965) (same person cannot at the same time be sole trustee and sole beneficiary of the same
identical interest and trust cannot exist where legal and sole beneficial interests are in the same
person).
Subsection (b) generally conforms to Kansas law. See parenthetical above for Freshours,
185 Kan. 434.
Subsection (c) is new.
UTC Comment
Subsection (a) codifies the basic requirements for the creation of a trust. To create a valid
trust, the settlor must indicate an intention to create a trust. See Restatement (Third) of Trusts § 13
(Tentative Draft No. 1, approved 1996); Restatement (Second) of Trusts § 23 (1959). But only such
manifestations of intent as are admissible as proof in a judicial proceeding may be considered. See
Section 103(17) (“terms of a trust” defined).
To create a trust, a settlor must have the requisite mental capacity. To create a revocable or
testamentary trust, the settlor must have the capacity to make a will. To create an irrevocable trust,
the settlor must have capacity during lifetime to transfer the property free of trust. See Section 601
(capacity of settlor to create revocable trust), and see generally Restatement (Third) of Trusts § 11
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