(1) A term of a trust relieving a trustee of liability for breach of trust is unenforceable to the extent that the term:

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(a) Relieves the trustee of liability for breach of trust committed in bad faith or with reckless indifference to the purposes of the trust or the interests of the beneficiaries; or

(b) Was inserted as the result of an abuse by the trustee of a fiduciary or confidential relationship to the settlor.

(2) An exculpatory term drafted or caused to be drafted by the trustee is invalid as an abuse of a fiduciary or confidential relationship unless:

(a) The settlor is represented by an independent counsel who reviewed the term; or

(b) The trustee proves that the exculpatory term is fair under the circumstances and that the term’s existence and contents were adequately communicated to the settlor. [2005 c.348 § 90]