N.C. Gen. Stat. § 36C-8B-9

(4) subsection (a)(6) providing that the court may provide instructions to the trustee regarding the application of Section 22 of the Uniform Trust Decanting Act to a prior exercise of the decanting power; and

(5) subsection (a)(7) providing that the court may order other relief to carry out the purposes of the Uniform Trust Decanting Act.

History

(2017-121, s. 1.)

NORTH CAROLINA COMMENT

In general, the drafters substantially modified Section 9 of the Uniform Trust Decanting Act as described below to reduce the length and complexity of this Article and based on concerns that an enumeration of the actions that may be taken by the court could be construed to exclude actions not listed but otherwise authorized under other sections of this Article or applicable law.

Subdivision (a)(1) incorporates subsection (a)(3) of the Uniform Trust Decanting Act. The provision in subdivision (a)(1) that the court may disapprove a proposed exercise of the decanting power, while not a part of the Uniform Trust Decanting Act, is generally consistent with but less specific than several of the provisions of the Uniform Trust Decanting Act that the drafters chose to omit and which are described below. The drafters omitted the provision in subsection (a)(1) of the Uniform Trust Decanting Act that the court may provide instructions to the authorized fiduciary regarding whether a proposed exercise of the decanting power is permitted under the Uniform Trust Decanting Act and consistent with the fiduciary duties of the authorized fiduciary for the reasons stated in the preceding paragraph of this North Carolina Comment.

Subdivision (a)(1) is consistent with former G.S. 36C-8-816.1(h), which provided that a trustee or beneficiary may commence a proceeding to approve or disapprove a proposed exercise of the trustee's power to decant, but differs from former G.S. 36C-8-816.1(h) in that subdivision (a)(1) also permits such a proceeding to be brought by a person entitled to notice under G.S. 36C-8B-7, which is more expansive than former G.S. 36C-8-816.1(h). The drafters omitted the reference in subsection (a) of the Uniform Trust Decanting Act to the Attorney General or other person that has standing to enforce the charitable interest because the definition of and all references to a "charitable interest" contained in the Uniform Trust Decanting Act were omitted from this Article.

Subdivision (a)(2) incorporates the provision of subsection (a)(2) of the Uniform Trust Decanting Act that the court may appoint a special fiduciary to exercise the decanting power. The drafters omitted the provision of subsection (a)(2) of the Uniform Trust Decanting Act that the court may authorize the special fiduciary to determine whether the decanting power should be exercised under this Article as unnecessary because the exercise of the special fiduciary's discretion is implicit in the special fiduciary's authority to exercise (or not exercise) the decanting power.

The drafters deleted the following provisions of subsection (a) of the Uniform Trust Decanting Act for the reasons stated in the initial paragraph of this North Carolina Comment:

The provision in subsection (b) that this section does not affect the right of a person to file for declaratory relief is not a part of the Uniform Trust Decanting Act. The provision of subsection (b) following the final comma incorporates subsection (a)(5) of the Uniform Trust Decanting Act.

The drafters omitted as repetitive subsection (b) of the Uniform Trust Decanting Act, which provided that on application of the authorized fiduciary, the court may approve an increase in the fiduciary's compensation under Section 16 of the Uniform Trust Decanting Act or a modification under Section 18 of the Uniform Trust Decanting Act of a provision granting a person the right to remove or replace the fiduciary. This provision was omitted because provisions regarding court approval are set forth in G.S. 36C-8B-16 and G.S. 36C-8B-18.