4-10-814. Discretionary powers; tax savings.

(a) Repealed By Laws 2007, Ch. 155, § 5.

(b) Subject to subsection (d) of this section, and unless the terms of the trust expressly indicate that a rule in this subsection does not apply:

(i) A person other than a settlor who is a beneficiary and trustee of a trust that confers on the trustee a power to make discretionary distributions to or for the trustee's personal benefit may exercise the power only in accordance with an ascertainable standard; and

(ii) A trustee may not exercise a power to make discretionary distributions to satisfy a legal obligation of support that the trustee personally owes another person.

(c) A power, the exercise of which is limited or prohibited by subsection (b) of this section may be exercised by a majority of the remaining trustees whose exercise of the power is not so limited or prohibited. If the power of all trustees is so limited or prohibited, the trustee may appoint a special fiduciary with authority to exercise the power.

(d) Subsection (b) of this section does not apply to:

(i) A power held by the settlor's spouse who is the trustee of a trust for which a marital deduction, as defined in Section 2056(b)(5) or 2523(e) of the Internal Revenue Code of 1986, as in effect on July 1, 2003, was previously allowed;

(ii) Any trust during any period that the trust may be revoked or amended by its settlor; or

(iii) Contributions to a trust that qualify for the annual exclusion under Section 2503(c) of the Internal Revenue Code of 1986, as in effect on July 1, 2003, or which are subject to an annual withdrawal right.

(e) A court may review a trustee's exercise of discretion concerning a discretionary distribution only if the trustee acts dishonestly, with improper motive or fails to use judgment.