§ 59-18-08 — (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 the term relieves the trustee of liability for breach of trust committed in bad
faith or with reckless indifference to the purposes of the trust or was inserted as the
result of an abuse by the trustee of a fiduciary or confidential relationship to the settlor.
2. Unless the settlor was represented by an attorney not employed by the trustee with
respect to the trust containing the exculpatory term, 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 and that its existence and contents were adequately communicated to
the settlor.