Ark. Code Ann. § 28-69-401 (2026)
Consent
- By written consent of the settlor and all named beneficiaries of a trust or any part thereof, regardless of any spendthrift or similar protective provisions, the trust or part thereof may be revoked, modified, or terminated upon a finding by the court having jurisdiction over the trust, or otherwise being of competent jurisdiction, that the trust's purposes, as expressed in or implied by the circumstances surrounding the trust, as a result of circumstances not foreseen to the settlor are not effectively being fulfilled or are frustrated.
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- For purposes of this section, consent to the revocation, modification, or termination may be given by the court on behalf of unnamed, legally incapacitated, unascertained, or unborn beneficiaries after a hearing in which the interests of such beneficiaries are represented by a guardian ad litem.
- A guardian ad litem for any such beneficiaries may rely on general family benefit accruing to the living named beneficiaries and their families as a basis for approving, or not objecting to, any such revocation, modification, or termination and, in so doing, shall be immune from liability to future claims of any unnamed, legally incapacitated, unascertained, or unborn beneficiaries.
- In circumstances in which objection is made by a guardian ad litem for beneficiaries who are not, by name or category, mentioned in a trust that is sought to be terminated, modified, or revoked, upon a finding that there is general family benefit to the living named beneficiaries and their families, the court shall allow the termination, modification, or revocation sought.
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- For purposes of this section, consent may be given on behalf of the estate of a deceased settlor by the court on a finding that there is general family benefit to the living named beneficiaries and their families.
- A personal representative of a settlor's estate may rely on general family benefit accruing to the living named beneficiaries and their families as a basis for approving, or not objecting to, any such revocation, modification, or termination and, in so doing, shall be immune from liability to future claims of any unnamed, legally incapacitated, unascertained, or unborn beneficiaries.
History. Acts 1989, No. 841, § 1.
Research References
U. Ark. Little Rock L. Rev.
Lynn Foster, Arkansas’s Trust Code and Trust Planning: A Ten-Year Perspective, 38 U. Ark. Little Rock L. Rev. 301 (2016).
Case Notes
Applicability.
Consent of a secondary beneficiary to trust amendments was not required because the express terms of the trusts permitted the amendments at issue. Dawson v. Stoner-Sellers, 2019 Ark. 410, 591 S.W.3d 299 (2019).
Modification Denied.
Trial court considered case law from other jurisdictions that permitted the modification the trustee requested in this case, in order to qualify a beneficiary for public benefits, but the trial court did not find that the modification was permissible under public policy and Arkansas law; the court was not left with a firm conviction that a mistake was committed. In re Ruby G. Owen Trust, 2012 Ark. App. 381, 418 S.W.3d 421 (2012).
Trustee intended to modify the trust in order to qualify a beneficiary for public benefits; because impoverishing the beneficiary in order to qualify her would make the trust provisions void, the modified provisions would have been void on grounds of public policy, and the trial court's denial of the modification motion was that the purpose for modifying the trust would be defeated. In re Ruby G. Owen Trust, 2012 Ark. App. 381, 418 S.W.3d 421 (2012).
Termination.
Where the sole beneficiary of a trust and the trustee consented to a transfer of all of the trust assets to a new trust, the original trust was properly terminated, even though court approval of the termination was not obtained pursuant to subsection (a) of this section because, under § 28-69-403, subsection (a) did not preclude the termination of a trust pursuant to its terms or otherwise in accordance with applicable law. In re Schultz, 324 B.R. 712 (Bankr. E.D. Ark. 2005).
Termination Denied.
Circuit court did not err in granting a motion for directed verdict in an action to terminate a trust, because the beneficiary failed to meet her burden of proof under the statutory procedures set forth in this section and § 28-73-411; there was no evidence of a change in circumstances between the establishment of the trust and the settlor's death that would frustrate the purpose of the trust. Neither the timing of the settlor's death, nor the fact that the beneficiary had to disrupt her employment to care for her mother were unforeseen circumstances that frustrated the purpose of the trust. Buckalew v. Arvest Trust Co., N.A., 2013 Ark. App. 28, 425 S.W.3d 819 (2013).