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The 192nd General Court of the Commonwealth of Massachusetts

Section 814: Discretionary powers; tax savings

Section 814. Discretionary powers; tax savings

(a) Notwithstanding the broad discretion granted to a trustee in the terms of the trust, including the use of such terms as ''absolute'', ''sole'' or ''uncontrolled'', the trustee shall exercise a discretionary power in good faith and in accordance with the terms and purposes of the trust and the interests of the beneficiaries.

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

(1) 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

(2) a trustee shall 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 that is limited or prohibited by subsection (b) 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 court may appoint a special fiduciary with authority to exercise the power.

(d) Subsection (b) shall not apply to:

(1) a power held by the settlor's spouse who is the trustee of a trust for which a marital deduction was previously allowed; or

(2) any trust during any period that the trust may be revoked or amended by its settlor.