Printable Format58a-411. Modification or termination of noncharitable irrevocable trust by consent. (a) A noncharitable irrevocable trust may be modified or terminated upon consent of the settlor and all qualified beneficiaries, even if the modification or termination is inconsistent with a material purpose of the trust. A settlor's power to consent to a trust's modification or termination may be exercised by an attorney in fact under a power of attorney only to the extent expressly authorized by the power of attorney or the terms of the trust; by the settlor's conservator with the approval of the court supervising the conservatorship if an agent is not so authorized; or by the settlor's guardian with the approval of the court supervising the guardianship if an agent is not so authorized and a conservator has not been appointed. This subsection does not apply to irrevocable trusts created before, or to revocable trusts that became irrevocable before, January 1, 2003.
(b) A noncharitable irrevocable trust may be terminated upon consent of all of the qualified beneficiaries if the court concludes that continuance of the trust is not necessary to achieve any material purpose of the trust. A noncharitable irrevocable trust may be modified upon consent of all of the qualified beneficiaries if the court concludes that modification is not inconsistent with a material purpose of the trust.
(c) (1) A spendthrift provision in the terms of the trust is not presumed to constitute a material purpose of the trust.
(2) Application of the rule against perpetuities 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 qualified beneficiaries.
(e) If not all of the qualified 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 qualified beneficiaries had consented, the trust could have been modified or terminated under this section; and
(2) the interests of a qualified beneficiary who does not consent will be adequately protected.
History: L. 2002, ch. 133, § 32; L. 2004, ch. 158, § 6; L. 2006, ch. 23, § 6; L. 2012, ch. 110, § 1; L. 2023, ch. 48, § 31; July 1.
Law Review and Bar Journal References:
"The Kansas Uniform Trust Code," David M. English, 51 K.L.R. 311 (2003).
CASE ANNOTATIONS
1. Kansas Uniform Trust Code applies to testamentary trust written before code was enacted; court can modify spendthrift trust to make partial distribution to remainder beneficiary. In re Estate of Somers, 277 Kan. 761, 89 P.3d 898 (2004).
2. Proposed modification to increase the first generation beneficiary's annual distribution cannot be validated as inconsistent with material purposes of the trust. In re Trust D of Darby, 290 Kan. 785, 234 P.3d 793 (2010).