CHAPTER 82

FORMERLY

SENATE BILL NO. 124

AN ACT AMENDING TITLE 12 OF THE DELAWARE CODE RELATING TO TRUSTS.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE :

Section 1. Amend § 3303, Title 12 of the Delaware Code, by deleting such section in its entirety and substituting in lieu thereof the following:

"§ 3303. Effect of provisions of instrument.

(a) Notwithstanding any other provision of this Code or other law, the terms of a governing instrument may expand, restrict, eliminate, or otherwise vary the rights and interests of beneficiaries, including the right to be informed of the beneficiary's interest for a period of time, the grounds for removal of a fiduciary, and a fiduciary's powers, duties, standard of care, rights of indemnification, and liability to persons whose interests arise from that instrument; provided, however, that nothing contained in this section shall be construed to permit the exculpation or indemnification of a fiduciary for the fiduciary's own willful misconduct or preclude a court of competent jurisdiction from removing a fiduciary on account of the fiduciary's willful misconduct. The rule that statutes in derogation of the common law are to be strictly construed shall have no application to this section. It is the policy of this section to give maximum effect to the principle of freedom of disposition and to the enforceability of governing instruments.

(b) In furtherance of and not in limitation of the provisions of Subsection (a) of this Section, and notwithstanding any contrary provisions of § 3541 of this Title, the terms of a governing instrument of a trust established and existing for religious, charitable, scientific, literary or educational purposes shall not be modified by the court to change the trust's purpose unless the purposes of the trust have become unlawful under the constitution of this state or the United States or the trust would otherwise no longer serve any religious, charitable, scientific, literary, or educational purpose in which case the court shall proceed in the manner directed by § 3541 of this Title."

Section 2. Amend Section 3312, Title 12 of the Delaware Code, by deleting Paragraph (4) of Subsection (a) thereof and substituting a new paragraph (4) to read as follows:

"(4) 'Affiliated investment' means an investment for which the fiduciary or an affiliate of the fiduciary acts as adviser, administrator, distributor, placement agent, underwriter or in any other capacity for which it receives or has received a fee or commission from such investment or an investment or an investment acquired or disposed of in a transaction for which the fiduciary or an affiliate or the fiduciary receives or has received a fee or commission."

Section 3. Amend Chapter 33, Title 12 of the Delaware Code, by deleting Section 3313 in its entirety and substituting a new Section 3313 to read as follows:

"§ 3313. Advisers.

(a) Where one or more persons are given authority by the terms of a governing instrument to direct, consent to, or disapprove a fiduciary's actual or proposed investment decisions, distribution decisions, or other decision of the fiduciary, such persons shall be considered to be advisers and fiduciaries when exercising such authority unless the governing instrument otherwise provides.

(b) If a governing instrument provides that a fiduciary is to follow the direction of an adviser, and the fiduciary acts in accordance with such a direction, then except in cases of willful misconduct on the part of the fiduciary so directed, the fiduciary shall not be liable for any loss resulting directly or indirectly from any such act.

(c) If a governing instrument provides that a fiduciary is to make decisions with the consent of an adviser, then except in cases of willful misconduct or gross negligence on the part of the fiduciary, the fiduciary shall not be liable for any loss resulting directly or indirectly from any act taken or omitted as a result of such adviser's failure to provide such consent after having been requested to do so by the fiduciary.

(d) For purposes of this section, 'investment decision' means with respect to any investment, the retention, purchase, sale, exchange, tender or other transaction affecting the ownership thereof or rights therein, and an adviser with authority with respect to such decisions is an investment adviser."

Section 4. Amend Chapter 34, Title 12 of the Delaware Code, by adding the following new section:

"§ 3409. Effect of no-contest provision.

(a) A provision of a will or trust that if given effect would reduce or eliminate the interest of any beneficiary of such will or trust who initiates or participates in an action to contest the validity of such will or trust or to set aside or vary the terms of such will or trust shall be enforceable.

(b) The provisions of subsection (a) shall have no application to:

1. Any action brought by the trustee of a trust or the personal representative under a will;

2. Any action in which the beneficiary is determined by the court to have prevailed substantially;

3. Any agreement among beneficiaries of the will or trust in settlement of a dispute relating to such will or trust;

4. Any action to determine whether a proposed or pending motion, petition, or other proceeding constitutes a contest within the meaning of a no-contest provision described in subsection (a); or

5. Any action brought by a beneficiary under a will or trust instrument for a construction or interpretation of such will or trust instrument."

Section 5. Amend Chapter 34, Title 12 of the Delaware Code, by adding the following new section:

"§ 3410. Effect of survivorship requirement.

If, in the construction or interpretation of any will or trust instrument, the vesting in ownership, possession, or enjoyment of an interest in property of any person is dependent, whether as a matter of expression, implication or inference, in whole or in part upon (a) that person's survival of or for a period of time after the life of some other person, including but not limited to the transferor, who has interest in such property, whether vested or contingent, and (b) that person fails to so survive the life of such other person or for a period of time thereafter, then the probable or perceived intention of the transferor with respect to any person who would otherwise be entitled to the interest because of a gift, bequest, or devise made by the person who failed to so survive shall not be considered and shall not be admissible in any proceeding involving the construction or interpretation of such will or trust."

Section 6. Amend Chapter 34, Title 12 of the Delaware Code, by adding the following new section:

"§ 3411. Preference for Early Vesting.

In the construction or interpretation of any will or trust instrument, if a determination is to be made whether the beneficiaries entitled to receive a distribution from an estate or trust are to be determined at an earlier or later time, such beneficiaries are to be determined at the earlier time unless the will or trust instrument expressly provides that the determination shall be made at the later time."

Section 7. Amend Chapters 33 and 34, Title 12 of the Delaware Code, by redesignating Sections 3401 through 3411 as Sections 3321 through 3331 and retitling Chapter 33 to "Administrative Provisions."

Section 8. Sections 1, 2, 3, 4, 5 of this Act shall be effective upon enactment and shall apply to wills and trusts whenever created. Section 6 of the Act shall be effective upon enactment.

Approved June 30, 2003