14-7404

14-7404. Judicial control of discretionary powers

A. A court shall not change a fiduciary's decision to exercise or not to
exercise a discretionary power conferred by this article unless it determines that the
decision was an abuse of the fiduciary's discretion. A court shall not determine that a
fiduciary abused its discretion merely because the court would have exercised the
discretion in a different manner or would not have exercised the discretion.

B. The decisions to which subsection A of this section applies include:

1. A determination under section 14-7403, subsection A of whether and to what
extent an amount should be transferred from principal to income or from income to
principal.

2. A determination of the factors that are relevant to the trust and its
beneficiaries, the extent to which they are relevant and the weight, if any, to be given
to the relevant factors in deciding whether and to what extent to exercise the power
conferred by section 14-7403, subsection A.

C. If a court determines that a fiduciary has abused its discretion, the remedy is
to restore the income and remainder beneficiaries to the positions they would have
occupied if the fiduciary had not abused its discretion as follows:

1. To the extent that the abuse of discretion has not resulted in a distribution to
a beneficiary or a distribution that is too small, the court shall require the fiduciary
to distribute from the trust to the beneficiary an amount that the court determines will
restore the beneficiary, in whole or in part, to that person'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 or 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 requiring that beneficiary to return some or all
of the distribution to the trust.

3. To the extent that the court is unable, after applying paragraphs 1 and 2 of
this subsection, to restore the beneficiaries or the trust, or both, to the positions
they would have occupied if the fiduciary had not abused its discretion, the court may
require the fiduciary to pay an appropriate amount from its own funds to one or more of
the beneficiaries or the trust, or both.

D. On a petition by the fiduciary, the court having jurisdiction over the trust or
estate shall determine whether a proposed exercise or nonexercise by the fiduciary of a
discretionary power conferred by this article will result in an abuse of the fiduciary's
discretion. If the petition describes the proposed exercise or nonexercise of the power
and contains sufficient information to inform the beneficiaries of the reasons for the
proposal, the facts on which the fiduciary relies and an explanation of how the income
and remainder beneficiaries will be affected by the proposed exercise or nonexercise of
the power, a beneficiary who challenges the proposed exercise or nonexercise has the
burden of establishing that it will result in an abuse of discretion.