§ 11-2.3-A Judicial control with respect to fiduciary's power to adjust

(a) Judicial control of adjustment power.

A court shall not change a fiduciary's decision to exercise or not to
exercise an adjustment power conferred by subparagraph 11-2.3(b)(5)
unless it determines that the decision was an abuse of the fiduciary's
discretion. A court shall not determine that a fiduciary abused his, her
or its discretion merely because the court would have exercised the
discretion in a different manner or would not have exercised the
discretion.

(b) Applicable decisions.

The decisions to which paragraph (a) applies include:

(1) A determination under subparagraph 11-2.3(b)(5) of whether and to
what extent an amount should be transferred from principal to income or
from income to principal.

(2) A determination of the factors that are relevant to the trust and
its beneficiaries, the extent to which they are relevant, and the
weight, if any, to be given to the relevant factors, in deciding whether
and to what extent to exercise the power conferred by subparagraph
11-2.3(b)(5).

(c) Authorization for court to remedy abuse of discretion.

If a court determines that a fiduciary has abused his, her or its
discretion, the court may restore the income and remainder beneficiaries
to the positions they would have occupied if the fiduciary had not
abused his, her or its discretion, according to the following rules:

(1) To the extent that the abuse of discretion has resulted in no
distribution to a beneficiary or a distribution that is too small, the
court shall require 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 his or her appropriate position.

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

(3) To the extent that the court is unable, after applying
subparagraphs (1) and (2), to restore the beneficiaries, the trust, or
both, to the positions they would have occupied if the fiduciary had not
abused his, her or its discretion, and if the court finds that the
fiduciary was dishonest or arbitrary and capricious in the exercise of
his, her or its discretion, the court may require the fiduciary to pay
an appropriate amount from his, her or its own funds to one or more of
the beneficiaries or the trust or both.

(d) Petition by fiduciary.

Upon a petition by a fiduciary who is authorized to exercise an
adjustment power conferred by subparagraph 11-2.3 (b)(5), the court
having jurisdiction over the trust or estate may determine whether a
proposed exercise or nonexercise by the fiduciary of the adjustment
power 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.