uniform trust code - Kansas Judicial Branch

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purpose of the trust.
(c) A spendthrift provision in the terms of the trust is not presumed to constitute a material
purpose of the trust.
(d) Upon termination of a trust under subsection (a) or (b), the trustee shall distribute the
trust property as agreed by the beneficiaries.
(e) If not all of the beneficiaries consent to a proposed modification or termination of the
trust under subsection (a) or (b), the modification or termination may be approved by the court if the
court is satisfied that:
(1) if all of the beneficiaries had consented, the trust could have been modified or
terminated under this section; and
(2) the interests of a beneficiary who does not consent will be adequately protected.
Kansas Comment
The first sentence of subsection (a) generally conforms to Kansas law. In Diller v. Kilgore,
135 Kan. 200, Syl. 6, 9 P.2d 643 (1932), the Kansas Supreme Court recognized that if no power of
revocation has been reserved, a trust cannot be revoked by the creator without consent of the
beneficiaries. See also Neeley v. Neeley, 26 Kan. App. 2d 924, Syl. 2, 996 P.2d 346 (2000) (court
recognized general rule that an irrevocable spendthrift trust can be modified if settlor and all
beneficiaries consent). The second sentence of subsection (a) is new, although the Kansas Court of
Appeals has held that a settlor’s right to revoke is personal to the settlor and nondelegable unless
the settlor expressly states otherwise in a power of attorney or the trust document. Muller v. Bank
of America, N.A., __ Kan. App. 2d __, __ P.3d __ (2000).
The first sentence of subsection (b) conforms to Kansas law. See McClary v. Harbaugh, 231
Kan. 564, 566, 646 P.2d 498 (1982) (beneficiaries may not compel termination of trust if
continuance is necessary to carry out a material purpose of trust). The second sentence clarifies
Kansas law regarding modification, which apparently has not been addressed by Kansas courts.
The Kansas drafting committee changed subsection (c) by striking the word “not,” thus
changing the UTC proposed language 180 degrees. As changed by the drafting committee,
subsection (c) is consistent with Kansas law. See Neeley, 26 Kan. App. 2d 924 (court held
spendthrift provision constitutes material purpose of trust).
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