Can I Ask a Judge to Modify a Trust and For Declaratory Relief at the Same Time?
It is possible for declaratory relief under IC 34-14-1-1 in the same action as a proceeding seeking a modification of a trust, when the same trust and common questions of law and fact. are involved. For the sake of judicial efficiency, the court prefers to hear related matters together. A declaratory act doesn’t ask the court to order anything to be done, unlike the other two statutes you cited, it merely seeks a determination of the status of something.
Please see the following IN statutes:
IC 30-4-3-24.4 (a) The court may modify the administrative or....
(a) The court may modify the administrative or dispositive terms of a trust if, because of circumstances not anticipated by the settlor, modification or termination will further the purposes of the trust. To the extent practicable, the modification must be made in accordance with the settlor's probable intention.
(b) The court may modify the administrative terms of a trust or terminate the trust if:
(1) the purpose of the trust has been fulfilled; or
(2) continuation of the trust on the trust's existing terms would:
(A) be illegal, impossible, impracticable, or wasteful; or
(B) impair the trust's administration.
(c) If the trust terminates under this section, the court shall direct the trustee to distribute the trust property in a manner consistent with the purposes of the trust.
(d) The court may modify the terms of a trust to give the settlor the power to revoke and modify the trust if the:
(1) settlor intended to reserve the power;
(2) settlor believed the power was reserved; and
(3) power was omitted from the terms of the trust by mistake.
[As added by P.L. 238-2005, SEC. 35.]
IC 30-4-3-26 (Power to Direct a Deviation from the Terms of the....
(Power to Direct a Deviation from the Terms of the Trust)
(a) Upon petition by the trustee or a beneficiary, the court shall direct or permit the trustee to deviate from a term of the trust if, owing to circumstances not known to the settlor and not anticipated by him, compliance would defeat or substantially impair the accomplishment of the purposes of the trust. In that case, if necessary to carry out the purposes of the trust, the court may direct or permit the trustee to do acts which are not authorized or are forbidden by the terms of the trust, or may prohibit the trustee from performing acts required by the terms of the trust.
(b) The trustee may deviate from the terms of the trust as provided in subsection (a) of this section, without first obtaining the permission of the court, if there is an emergency or if he reasonably believes that there is an emergency, and before deviating he has no opportunity to apply to the court for permission to deviate.
(c) The trustee is liable for any loss or damage which results if he fails to apply to the court for permission to deviate from the terms of the trust, when he knows or should know that, owing to circumstances not known to the settlor and not anticipated by him, compliance will defeat or substantially impair the accomplishment of the purposes of the trust.
IC 34-14-1-1 Courts of record within their respective jurisdictions have....
Courts of record within their respective jurisdictions have the power to declare rights, status, and other legal relations whether or not further relief is or could be claimed. No action or proceeding is open to objection on the ground that a declaratory judgment or decree is prayed for. The declaration may be either affirmative or negative in form and effect. The declaration has the force and effect of a final judgment or decree.
IC 34-14-1-11 When declaratory relief is sought, all persons shall be....
When declaratory relief is sought, all persons shall be made parties who have or claim any interest that would be affected by the declaration, and no declaration shall prejudice the rights of persons not parties to the proceeding. In any proceeding in which a statute, ordinance, or franchise is alleged to be unconstitutional, the court shall certify this fact to the attorney general, and the attorney general shall be permitted to intervene for presentation of evidence, if evidence is otherwise admissible in the case, and for arguments on the question of constitutionality. In any proceeding that involves the validity of a municipal ordinance or franchise, the municipality shall be made a party, and shall be entitled to be heard. If the statute, ordinance, or franchise is alleged to be unconstitutional, the attorney general of the state shall also be served with a copy of the proceeding and be entitled to be heard.
IC 34-14-1-4 Any person interested as or through an executor,....
Any person interested as or through an executor, administrator, trustee, guardian, or other fiduciary, creditor, devisee, legatee, heir, next of kin, or cestui que trust in the administration of a trust, or of the estate of a decedent, a person under eighteen (18) years of age, or a mentally incompetent person may have a declaration of rights or legal relations:
(1) to ascertain any class of creditors, devisee, legatees, heirs, next of kin, or others;
(2) to direct the executors, administrators, or trustees to do or abstain from doing any particular act in their fiduciary capacity; or
(3) to determine any question arising in the administration of the estate or trust, including questions of construction of wills and other writings.