In between his various speaking engagements at the Heckerling conference, Trusts & Estates editorial advisory board member Turney P. Berry of Wyatt, Tarrant & Combs LLP, was kind enough to stop by our booth to speak to me about his experiences on the Uniform Law Commission (ULC). Turney was appointed to serve on the ULC in 2006. Since that time, he’s worked on a number of uniform laws related to estate planning, including the Directed Trust Act, the Fiduciary Income and Principal Act (which was just revised), the Powers of Appointment Act, the Marriage Agreements Act and, most recently, the Electronic Wills Act (E-Wills Act).
Two Acts in One
According to Turney, it’s sometimes difficult to create a uniform law that all states will be happy with. This was the case with the Marriage Agreements Act, which covers prenups and postnups. Some states, like Kentucky, will enforce an agreement so long as it meets a fairness test both at the time it was signed and at the time it’s being enforced. Other states, like Texas, view a contract as a contract, so it will enforce the prenup or postnup as long as it meets the fairness test at the time it was signed and won’t consider whether circumstances have changed to make it seem unfair at the time it’s enforced. In that situation, the ULC has to come up with two versions of the uniform act, so that each state could pick one that best suited its views.
When it came to drafting the E-Wills Act, the ULC faced a controversial question: whether the use of remote notaries and witnesses was permitted. To resolve this issue, the ULC included both options in the act. For more information on the E-Wills Act, see the article Turney and his co-author, Suzanne Walsh, wrote for wealthmanagement.com.
Another difficult question arose in drafting the Directed Trust Act: If a trustee follows the directions of a trust director, will that trustee be protected and, if so, under what circumstances. After much discussion, the ULC was able to reach a consensus on the answer to that question. It decided to follow Delaware’s willful misconduct standard. So as long as the direction that the trustee followed doesn’t constitute willful misconduct (a standard that could be subject to some debate), the trustee is protected.
Next on Turney’s agenda is the Economic Rights of Unmarried Cohabitants Act, which will standardize the rights of unmarried cohabitants. The couple may have children together and share economic responsibilities. For example, one individual may work outside the home, while the other stays home with the children. Right now, it’s unclear what happens if these couples decide to split up. Factors to consider are the length of time the couple was together and if they did things as a family.
Further down the line is the Conflicts of Law in Trusts Act, which Turney acknowledges is a very complicated issue, as trusts are more frequently moved from one state to another.