Ark. Code Ann. » Title 28 Chapter 73
Arkansas Code Annotated

Ark. Code Ann. § 28-73-411 (2020)

Modification or termination of noncharitable irrevocable trust by consent

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    1. A noncharitable irrevocable trust may be modified or terminated upon consent of the settlor and all beneficiaries, even if the modification or termination is inconsistent with a material purpose of the trust.
    2. A settlor's power to consent to a trust's modification or termination may be exercised by:
      1. an agent under a power of attorney only to the extent expressly authorized by the power of attorney or the terms of the trust;
      2. the settlor's conservator with the approval of the court supervising the conservatorship if an agent is not so authorized; or
      3. the settlor's guardian with the approval of the court supervising the guardianship if an agent is not so authorized and a conservator has not been appointed.
  2. A noncharitable irrevocable trust may be:
    1. terminated upon consent of all of the beneficiaries if a court concludes that continuance of the trust is not necessary to achieve any material purpose of the trust; or
    2. modified upon consent of all of the beneficiaries if a court concludes that modification is not inconsistent with a material purpose of the trust.
  3. A spendthrift provision in the terms of the trust is presumed to constitute a material purpose of the trust.
  4. Upon termination of a trust under subsection (a) or (b), the trustee shall distribute the trust property as agreed by the beneficiaries.
  5. If not all of the beneficiaries consent to a proposed modification or termination of the trust under subsection (a) or (b), the modification or termination may be approved by a court if the court is satisfied that:
    1. if all of the beneficiaries had consented, the trust could have been modified or terminated under this section; and
    2. the interests of a beneficiary who does not consent will be adequately protected.

History. Acts 2005, No. 1031, § 1.

A.C.R.C. Notes. Section 411(c) of the Uniform Trust Code (ULA 2005) differs from the version of this section as enacted in Arkansas.

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).

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 §§ 28-69-401, 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).

Notes of Decisions
Cited in 1 case, 2013–2013 · leading case: Buckalew v. Arvest Trust Co., 425 S.W.3d 819 (Ark. Ct. App. 2013).
Sort: Relevance Newest Treatment
Buckalew v. Arvest Trust Co., 425 S.W.3d 819 (Ark. Ct. App. 2013). · cites it 18× “In her motion and accompanying brief, she argued that section 28-69-401 provided a separate procedure for modification or termination of a trust, making section 28-73-411 inapplicable. In response, Arvest argued that a trust containing a spendthrift provision could not be…”
Ark. Code Ann. § 28-73-411(a)(l): 1 case
Buckalew v. Arvest Trust Co., 425 S.W.3d 819 (Ark. Ct. App. 2013). “In her motion and accompanying brief, she argued that section 28-69-401 provided a separate procedure for modification or termination of a trust, making section 28-73-411 inapplicable. In response, Arvest argued that a trust containing a spendthrift provision could not be…”
Ark. Code Ann. § 28-73-411(b): 1 case
Buckalew v. Arvest Trust Co., 425 S.W.3d 819 (Ark. Ct. App. 2013). “In her motion and accompanying brief, she argued that section 28-69-401 provided a separate procedure for modification or termination of a trust, making section 28-73-411 inapplicable. In response, Arvest argued that a trust containing a spendthrift provision could not be…”
Ark. Code Ann. § 28-73-411(c): 1 case
Buckalew v. Arvest Trust Co., 425 S.W.3d 819 (Ark. Ct. App. 2013). “In her motion and accompanying brief, she argued that section 28-69-401 provided a separate procedure for modification or termination of a trust, making section 28-73-411 inapplicable. In response, Arvest argued that a trust containing a spendthrift provision could not be…”
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