(a) A noncharitable irrevocable trust may be modified or terminated upon consent of the settlor and all beneficiaries, even if the modification or termination is inconsistent with a material purpose of the trust. A settlor’s power to consent to a trust’s modification or termination may be exercised by:

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Terms Used In Hawaii Revised Statutes 554D-411

  • Conservator: means a person appointed by the court to administer the estate of a minor or adult individual. See Hawaii Revised Statutes 554D-103
  • Continuance: Putting off of a hearing ot trial until a later time.
  • Court: means the circuit court in this State having jurisdiction over all subject matter relating to trusts. See Hawaii Revised Statutes 554D-103
  • Irrevocable trust: A trust arrangement that cannot be revoked, rescinded, or repealed by the grantor.
  • Power of attorney: A written instrument which authorizes one person to act as another's agent or attorney. The power of attorney may be for a definite, specific act, or it may be general in nature. The terms of the written power of attorney may specify when it will expire. If not, the power of attorney usually expires when the person granting it dies. Source: OCC
  • Property: means anything that may be the subject of ownership, whether real or personal, legal or equitable, or any interest therein. See Hawaii Revised Statutes 554D-103
  • Settlor: means a person, including a testator, who creates, or contributes property to, a trust. See Hawaii Revised Statutes 554D-103
  • Spendthrift provision: means a term of a trust that restrains both voluntary and involuntary transfer of a beneficiary's interest. See Hawaii Revised Statutes 554D-103
(1) An agent under a power of attorney only to the extent expressly authorized by the power of attorney or the terms of the trust;
(2) The settlor’s conservator with the approval of the court supervising the conservatorship if an agent is not so authorized; or
(3) The settlor’s guardian with the approval of the court supervising the guardianship if an agent is not so authorized and a conservator has not been appointed.

This subsection does not apply to irrevocable trusts created before or to revocable trusts that become irrevocable before the effective date of this chapter.

(b) A noncharitable irrevocable trust may be terminated upon consent of all of the beneficiaries if the court concludes that continuance of the trust is not necessary to achieve any material purpose of the trust. A noncharitable irrevocable trust may be modified upon consent of all of the beneficiaries if the court concludes that modification is not inconsistent with a material purpose of the trust.
(c) It is a question of fact whether a spendthrift provision constitutes a material purpose of the trust.
(d) Upon termination of a trust under subsection (a) or (b), the trustee shall distribute the trust property as agreed to by the beneficiaries.
(e) If not all of the beneficiaries consent to a proposed modification or termination of the trust under subsection (a) or (b), the modification or termination may be approved by the court if the court is satisfied that:

(1) If all of the beneficiaries had consented, the trust could have been modified or terminated under this section; and
(2) The interests of a beneficiary who does not consent will be adequately protected.
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