ORS 129.220
UPIA 105. Judicial control of discretionary power


(1)

The court may not order a fiduciary to change a decision to exercise or not to exercise a discretionary power conferred by this chapter unless it determines that the decision was an abuse of the fiduciary’s discretion. A fiduciary’s decision is not an abuse of discretion merely because the court would have exercised the power in a different manner or would not have exercised the power.

(2)

The decisions to which subsection (1) of this section applies include:

(a)

A decision under ORS 129.215 (UPIA 104. Trustee’s power to adjust) (1) as to whether and to what extent an amount should be transferred from principal to income or from income to principal.

(b)

A decision regarding the factors that are relevant to the trust and its beneficiaries, the extent to which the factors are relevant and the weight, if any, to be given to those factors in deciding whether and to what extent to exercise the discretionary power conferred by ORS 129.215 (UPIA 104. Trustee’s power to adjust) (1).

(3)

If the court determines that a fiduciary has abused the fiduciary’s discretion, the court may place the income and remainder beneficiaries in the positions they would have occupied if the discretion had not been abused, according to the following rules:

(a)

To the extent that the abuse of discretion has resulted in no distribution to a beneficiary or in a distribution that is too small, the court shall order the fiduciary to distribute from the trust to the beneficiary an amount that the court determines will restore the beneficiary, in whole or in part, to the beneficiary’s appropriate position.

(b)

To the extent that the abuse of discretion has resulted in a distribution to a beneficiary that is too large, the court shall place the beneficiaries, the trust, or both, in whole or in part, in their appropriate positions by ordering the fiduciary to withhold an amount from one or more future distributions to the beneficiary who received the distribution that was too large or ordering that beneficiary to return some or all of the distribution to the trust.

(c)

To the extent that the court is unable, after applying paragraphs (a) and (b) of this subsection, to place the beneficiaries, the trust, or both, in the positions they would have occupied if the discretion had not been abused, the court may order the fiduciary to pay an appropriate amount from its own funds to one or more of the beneficiaries or the trust or both.

(4)

Upon petition by the fiduciary for instructions, the court having jurisdiction over a trust or estate may instruct the fiduciary on whether a proposed exercise or nonexercise by the fiduciary of a discretionary power conferred by this chapter will result in an abuse of the fiduciary’s discretion. If the petition describes the proposed exercise or nonexercise of the power and contains sufficient information to inform the beneficiaries of the reasons for the proposal, the facts upon which the fiduciary relies and an explanation of how the income and remainder beneficiaries will be affected by the proposed exercise or nonexercise of the power, a beneficiary who challenges the proposed exercise or nonexercise has the burden of establishing that it will result in an abuse of discretion. [2003 c.279 §4a; 2005 c.348 §119]

Source: Section 129.220 — UPIA 105. Judicial control of discretionary power, https://www.­oregonlegislature.­gov/bills_laws/ors/ors129.­html.

129.200
UPIA 101. Short title
129.205
UPIA 102. Definitions
129.210
UPIA 103. Fiduciary duties
129.215
UPIA 104. Trustee’s power to adjust
129.220
UPIA 105. Judicial control of discretionary power
129.225
Conversion to unitrust
129.250
UPIA 201. Determination and distribution of net income
129.255
UPIA 202. Distribution to residuary and remainder beneficiaries
129.270
UPIA 301. When right to income begins and ends
129.275
UPIA 302. Apportionment of receipts and disbursements when decedent dies or income interest begins
129.280
UPIA 303. Apportionment when income interest ends
129.300
UPIA 401. Character of receipts
129.305
UPIA 402. Distribution from trust or estate
129.308
UPIA 403. Business and other activities conducted by trustee
129.310
UPIA 404. Principal receipts
129.315
UPIA 405. Rental property
129.320
UPIA 406. Obligation to pay money
129.325
UPIA 407. Insurance policies and similar contracts
129.350
UPIA 408. Insubstantial allocations not required
129.355
UPIA 409. Deferred compensation, annuities and similar payments
129.360
UPIA 410. Liquidating asset
129.365
UPIA 411. Minerals, water and other natural resources
129.370
UPIA 412. Timber
129.375
UPIA 413. Property not productive of income
129.380
UPIA 414. Derivatives and options
129.385
UPIA 415. Asset-backed securities
129.400
UPIA 501. Disbursements from income
129.405
UPIA 502. Disbursements from principal
129.410
UPIA 503. Transfers from income to principal for depreciation
129.415
UPIA 504. Transfers from income to reimburse principal
129.420
UPIA 505. Income taxes
129.425
UPIA 506. Adjustments between principal and income because of taxes
129.450
UPIA 601. Uniformity of application and construction
Green check means up to date. Up to date