Article on the Uniform Trust Code and Common Law

Christina Bogdanski recently published an Article entitled, The Uniform Trust Code and the Common Law: An Analysis of Three Sections of the Code that Deviate from the Common Law and Why the Drafters Changed the Law, 37 Cardozo L. Rev. 1907 (2016). Provided below is a summary of the Article:

This Note proceeds in four Parts. Part I reviews early attempts to codify the common law of trusts, as well as the drafting and enacting of the UTC. Part II analyzes the first change to the common law as embedded in UTC section 1002, which concerns remedies that courts may award when a trustee breaches his duty of loyalty. At least one court has interpreted this section as limiting courts’ ability to fashion equitable remedies. Part II also looks at the UTC’s treatment of the duty of loyalty, and explains how section 802(c) and (f) work together to dramatically diminish institutional trustees’ duty. Part III discusses the second change regarding creditors’ rights to attach trust assets, which occurs in section 504. This section materially undermines creditors’ ability to attach the beneficiary’s interest in support trusts. Both Parts II and III additionally consider why the drafters might have made the respective changes. Finally, in Part IV, this Note analyzes whether the changes are well founded, and concludes by proposing modifications to those sections.