When I was reviewing New York’s rules on trust modification and revocation, I noticed that the rules would be clearer with better organization.
As the annotation below shows, EPTL 7-1.16 has two rules:
- The first rule sets a default: In New York, lifetime trusts are irrevocable by default. A trust creator can opt out of this rule by expressly stating that the trust is revocable.
- The second rule is procedural. It gives the requirements for amending or revoking a lifetime trust by a will.
A problem with EPTL 7-1.16 is that these rules don’t belong together:
- The first rule is a default rule that applies to every lifetime trust in New York. Knowing this rule is important when drafting a lifetime trust.
- The second rule is a procedural rule that applies only to revocable trusts. Knowing this rule is important when amending or revoking such a trust, or when drafting a will.
- The title of EPTL 7-1.16 references only the second rule.
Similarly, EPTL 7-1.17 has two rules. Although both rules are procedural, they still don’t belong together:
- Subsection (a) applies to all trusts (“Every lifetime trust”). It gives the rule for executing a lifetime trust. Knowing this rule is important when forming a lifetime trust.
- Subsection (b) applies to just revocable trusts (“Any amendment or revocation authorized by the trust”). Knowing this rule is important when amending or revoking such a trust.
New York’s law on trusts can be improved with these suggestions:
- One EPTL section should state the default rule as to the irrevocability of trusts that is currently the first sentence of EPTL 7-1.16.
- Another EPTL section should discuss the procedure for amending or revoking revocable trusts. The procedural rule in the second sentence of EPTL 7-1.16 would be combined with the procedural rule in EPTL 7-1.17(b). So, the EPTL section would give the procedure for amending a revocable trust by a document while alive and the procedure for amending such a trust by a will.
- A third EPTL section should give the rule for executing lifetime trusts that is currently in EPTL 7-1.17(a). This procedural rule should be in its own section because it applies to all lifetime trusts, whether revocable or irrevocable.
Have you noticed New York laws that can be improved through better writing or organization? Please let me know by commenting below.