Memorandum
To: Commission
From: John JA Burke
Date: 10 March 2008
Re: Uniform Trust Code
At its February 2008 meeting, the Commission requested staff to contact New Jersey attorneys regarded as experts in the field of Trusts and Estates to solicit their opinion on the NCCUSL Uniform Trust Code. Staff learned that a group of New Jersey attorneys have formed an ad hoc Committee and have prepared a text entitled “The New Jersey Uniform Trust Code” inspired by the NCCUSL Uniform Trust Code. The members of the ad hoc Committee are: Richard Lert (Chair), Michael Backer, Andrew DeMaio, Glenn Henkel, Richard Kahn, Robert Pless, Warren Racusin, and Jordan Weitberg. The ad hoc Committee has prepared a draft text that has been submitted to the Office of Legislative Services for introduction to the Legislature.
Richard Lert sent me the existing New Jersey Uniform Trust Code and accompanying Prefatory Statement and Select Summary of Code Articles under a condition of confidentiality, as the Committee’s work is incomplete. I have compared the Official Text and the NJ Uniform Trust Code to identify where the latter deviates from the Official Text. The NJ Uniform Trust Code is based on the backbone of the NCCUSL Official Text but introduces substantial non-uniform amendments while retaining what were deemed the innovative and positive contributions of the NCCUSL product: (1) specification of the rules of trust law that are not subject to override in the trust’s terms (3B:31-5); (2) the inclusion of a comprehensive article on representation of beneficiaries (Article 3), (3) rules on trust modification and termination that will enhance flexibility (3B:31-31 through 3B:31-38), and (4) the inclusion of an article collecting the special rules on revocable trusts (Article 6). In addition, the Committee also found valuable the list of mandatory rules incapable of being overridden by the trust instrument.
The “ad hoc Committee” holds its next meeting on 29 September 2008 to which I have been invited and expect to attend. It is expected that the Committee likely will finalize its work at this meeting. I will report to the Commission the results of the meeting and the latest version of the New Jersey Uniform Trust Code.
Attached for your review is a track-changed document based on the NCUSL Official Text showing the non-uniform amendments made by the ad hoc Committee. The purpose of the document is to show the nature and extent of the changes and not to explore in detail the significance that will be prepared when the final product of the New Jersey Uniform Trust Code is approved.