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I hope the spread of this doctrine is halted in the US (it’s already popular offshore). The privacy and testamentary control of trusts is a vital bulwark of family power and therefore freedom. Giving courts power to “bless” is a camel’s nose under the tent.

In England, courts have held that they have discretion to bless a trustee’s momentous decisions before the trustee acts on them.

Importantly, the court’s blessing includes the process by which decisions are made, which essentially immunizes trustees from subsequent allegations that a decision amounts to a breach of trust. The application for such a blessing is conventionally known as a Public Trustee v. Cooper application.

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In recent years, there’s been movement towards allowing trustees to ask for instructions, even absent an actual dispute between the parties. The Uniform Trust Code has been adopted (with variations) by 32 U.S. jurisdictions as of the date of this article, which expressly provides that a “judicial proceeding involving a trust may relate to any matter involving the trust’s administration, including a request for instructions.” Beyond mentioning petitions for instructions, the UTC doesn’t list the types of judicial proceedings involving trust administration that might be brought by a trustee. However, the drafting committee’s comments on that section of the UTC note that it “makes clear that the court’s jurisdiction may be invoked even absent an actual dispute.”

The Minnesota version of the UTC goes further than the model statute, and specifically provides that a judicial proceeding involving a trust may relate to a number of different matters, including “to mortgage, lease, sell, or otherwise dispose of real property held by the trustee notwithstanding any contrary provision of the trust instrument.”

Further, California, a non-UTC state, also allows a trustee or beneficiary of a trust to petition the court concerning the “internal affairs of the trust,” including “instructing a trustee.”

Source: Can Courts Bless a Trustee’s Decision?

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