72-38-1008. Exculpation of trustee. (1) A term of a trust relieving a trustee of liability for breach of trust is unenforceable to the extent that it:
     (a) relieves the trustee of liability for breach of trust committed in bad faith or with reckless indifference to the fiduciary duties of the trustee, the terms or purposes of the trust, or the interests of the beneficiaries;
     (b) was inserted as the result of an abuse by the trustee of a fiduciary or confidential relationship to the settlor; or
     (c) relieves the trustee of accountability for profits derived from a breach of trust.
     (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 the trustee proves that the exculpatory term is fair under the circumstances, that its existence and contents were adequately communicated to the settlor, and that the settlor was represented by independent legal counsel before adopting the exculpatory term.

     History: En. Sec. 125, Ch. 264, L. 2013.