                                 CODE OF VIRGINIA

JUDICIAL REVIEW OF EXERCISE OF DISCRETIONARY POWER; REQUEST FOR INSTRUCTION (§
64.2-1037)

A. As used in this section, &#8220;fiduciary decision&#8221; means:

   1. A fiduciary&#8217;s allocation between income and principal or other
   determination regarding income and principal required or authorized by the
   terms of the trust or this chapter;

   2. The fiduciary&#8217;s exercise or nonexercise of a discretionary power
   regarding income and principal granted by the terms of the trust or this
   chapter, including the power to adjust under &#xA7; 64.2-1038, convert an
   income trust to a unitrust under subdivision A 1 of &#xA7; 64.2-1041, change
   the percentage or method used to calculate a unitrust amount under subdivision
   A 2 of &#xA7; 64.2-1041, or convert a unitrust to an income trust under
   subdivision A 3 of &#xA7; 64.2-1041; or

   3. The fiduciary&#8217;s implementation of a decision described in subdivision
   1 or 2.

B. The court may not order a fiduciary to change a fiduciary decision unless the
court determines that the fiduciary decision was an abuse of the
fiduciary&#8217;s discretion.

C. If the court determines that a fiduciary decision was an abuse of the
fiduciary&#8217;s discretion, the court may order a remedy authorized by law,
including § 64.2-792. To place the beneficiaries in the positions the
beneficiaries would have occupied if there had not been an abuse of the
fiduciary&#8217;s discretion, the court may order:

   1. The fiduciary to exercise or refrain from exercising the power to adjust
   under &#xA7; 64.2-1038;

   2. The fiduciary to exercise or refrain from exercising the power to convert
   an income trust to a unitrust under subdivision A 1 of &#xA7; 64.2-1041,
   change the percentage or method used to calculate a unitrust amount under
   subdivision A 2 of &#xA7; 64.2-1041, or convert a unitrust to an income trust
   under subdivision A 3 of &#xA7; 64.2-1041;

   3. The fiduciary to distribute an amount to a beneficiary;

   4. A beneficiary to return some or all of a distribution; or

   5. The fiduciary to withhold an amount from one or more future distributions
   to a beneficiary.

D. On petition by a fiduciary for instruction, the court may determine whether a
proposed fiduciary decision will result in an abuse of the fiduciary&#8217;s
discretion. If the petition describes the proposed decision, contains sufficient
information to inform the beneficiary of the reasons for making the proposed
decision and the facts on which the fiduciary relies, and explains how the
beneficiary will be affected by the proposed decision, a beneficiary that
opposes the proposed decision has the burden to establish that it will result in
an abuse of the fiduciary&#8217;s discretion.

HISTORY: 2022, c. 354.