Section 5.30 Modification Under § 456.590.2, RSMo

• Library: Trusts and Powers 2013 Supp

2. (§5.30) Modification Under § 456.590.2, RSMo

In 1983, the Missouri legislature departed from the Clafin rule, Clafin v. Clafin, 20 N.E. 454 (Mass. 1889), see §5.29, supra, when it enacted § 456.590, which provides in pertinent part:

When all of the adult beneficiaries who are not disabled consent, the court may, upon finding that such variation will benefit the disabled, minor, unborn and unascertained beneficiaries, vary the terms of a private trust so as to reduce or eliminate the interests of some beneficiaries and increase those of others, to change the times or amounts of payments and distributions to beneficiaries, or to provide for termination of the trust at a time earlier or later than that specified by the terms.

Section 456.590.2, RSMo Supp. 2005.

Now, the court does not need to determine whether the modification will impair the settlor’s purposes. Instead, the statute allows for modification if it benefits the “disabled, minor, unborn and unascertained beneficiaries.” Trust modifications include changes to the beneficiaries’ interests, payments, and distributions. Id.

There are only three reported cases interpreting § 456.590. In the first reported case, Hamerstrom v. Commerce Bank of Kansas City, N.A., 808 S.W.2d 434, 436 (Mo. App. W.D. 1991), the court of appeals stated that § 456.590.2:

provides a mechanism for “adult beneficiaries who are not disabled” to vary, extend or eliminate a trust under circumstances where the settlor’s purpose is not considered. However, deviation is precluded when certain classifications of protected beneficiaries exist and a court has not found that those variations desired by the qualified adult beneficiaries would benefit the protected beneficiaries.

The issue in Hamerstrom was whether the unnamed issue
of the trust’s remaindermen were protected beneficiaries
under § 456.590. The trial court denied a request to vary a testamentary trust’s terms to increase the monthly income paid to the life beneficiary from $150 to $2,000 per month. Even though Mrs. Hamerstrom, the life beneficiary, and her husband and two sons, the trust’s remaindermen, all consented to the deviation, the trial court denied the deviation because it determined that the sons’ unnamed issue were beneficiaries under § 456.590 and that the proposed deviation did not
benefit them. The specific terms of the will provided that,
upon termination, the trust’s corpus would be distributed to
Mrs. Hamerstrom’s two sons if her husband predeceased...