Equitable deviation available to create special needs trust

Parents created a trust to pay income to son and daughter-in-law, then income to their children until age 35 at which time the trust property would be distributed to them.  The son as trustee petitioned the court to reform the trust to create a special needs trust for his daughter who is disabled and under institutional care paid for by the state.

The court in In re Riddell, 157 P.3d 888 (Wash. Ct. App. 2007), determined that equitable deviation was applicable because of the existence of unanticipated circumstances.  It would be consistent with the settlors’ intention to create a trust for the general support of their grandchildren and not solely for the payment of extraordinary medical bills.  The court also noted that the state encourages the creation of special needs trusts and that the trial court erred in considering the potential loss to the state by the creation of the special needs trust.