April 23, 2012
Authored by: Luke Lantta
Effective May 1, 2012, new amendments to the Delaware Chancery Court Rules will materially change the required content of consent petitions to modify trusts. The official website of the Delaware judiciary describes the amendments as “help[ing] the Court protect trust assets of minor and unborn beneficiaries and ensur[ing] the integrity of the Court in the process of modifying trusts.”
So what’s the big deal? Let’s see . . .
For starters, the petition must specifically cover a lot of ground, including a lot of facts about the history of the trust, and nine separate points that must be pleaded “with particularity” (e.g., how the relief requested will affect current, vested future, and contingent beneficiaries; whether the relief requested will result in releases or indemnification of the fiduciary; and so on . . .).
Here are some other highlights:
- A whole bunch of exhibits must accompany the petition, including the consent of the trustor of the trust, if living; a redlined version of the trust instrument; and a family tree;
- A set of specific requirements as to the form and content of each consent; and
- Detailed requirements regarding virtual representation, including a certification that no material conflict of interest exists between the consenting party and the person represented; and a detailed certification of the attorneys filing the petition.
While these new amendments will certainly make consent petitions to modify trusts longer, the sheer volume of information and exhibits that must now accompany a petition may, as a practical matter, make trust modification in Delaware cost prohibitive in a number of situations.