In re Trust of Jennie Shire, deceased

Summary

The Nebraska Supreme Court affirmed the denial of a petition to modify the Trust of Jennie Shire to increase distributions to the surviving lifetime beneficiary. The court held that modification under Neb. Rev. Stat. § 30-3837(b) requires affirmative consent by all beneficiaries, and that the interests of nonconsenting beneficiaries were not adequately protected under § 30-3837(e).

Holdings

1. A party seeking modification under § 30-3837(b) must affirmatively demonstrate that all beneficiaries have consented. Mere lack of objection by known beneficiaries does not satisfy the statutory consent requirement. Issues involving unknown beneficiaries are governed by the representation and court-appointed-representative provisions of §§ 30-3825 and 30-3826.
2. For nonconsenting beneficiaries to be adequately protected under § 30-3837(e), the court must determine that the modification will not affect their interests and must impose safeguards to prevent their interests from being affected when necessary. An increase in payments to one beneficiary that directly reduces the interests or future growth of other beneficiaries does not satisfy this requirement.
3. An appellate court will not consider whether trust modification is warranted under the common-law doctrine of deviation when that issue was not presented to or decided by the trial court.

Questions Presented

1. Whether Neb. Rev. Stat. § 30-3837(b) permits modification of an irrevocable trust without affirmative consent from all beneficiaries, including unknown beneficiaries.
2. How the interests of nonconsenting beneficiaries must be protected under Neb. Rev. Stat. § 30-3837(e).
3. Whether the appellate court could consider modification under the common-law doctrine of deviation when that issue was not presented to or decided by the county court.

Disposition

affirmed