§ 2-3-832 — Judicial control of discretionary powers

(a) A court shall not change a fiduciary's decision to
exercise or not to exercise a discretionary power conferred by
this act unless it determines that the decision was an abuse of
the fiduciary's discretion. A court shall not determine that a
fiduciary abused its discretion merely because the court would
have exercised the discretion in a different manner or would not
have exercised the discretion.
(b) The decisions to which subsection (a) of this section
applies include:
(i) A determination under W.S. 2-3-804(a) of whether
and to what extent an amount should be transferred from
principal to income or from income to principal;
(ii) A determination of the factors that are relevant
to the trust and its beneficiaries, the extent to which they are
relevant, and the weight, if any, to be given to the relevant
factors, in deciding whether and to what extent to exercise the
power conferred by W.S. 2-3-804(a).
(c) If a court determines that a fiduciary has abused its
discretion, the remedy is to restore the income and remainder
beneficiaries to the positions they would have occupied if the
fiduciary had not abused its discretion, according to the
following rules:
(i) To the extent that the abuse of discretion has
resulted in no distribution to a beneficiary or a distribution
that is too small, the court shall require the fiduciary to
distribute from the trust to the beneficiary an amount that the
court determines will restore the beneficiary, in whole or in
part, to his appropriate position;
(ii) To the extent that the abuse of discretion has
resulted in a distribution to a beneficiary that is too large,
the court shall restore the beneficiaries, the trust, or both,
in whole or in part, to their appropriate positions by requiring
the fiduciary to withhold an amount from one (1) or more future
distributions to the beneficiary who received the distribution
that was too large or requiring that beneficiary to return some
or all of the distribution to the trust;
(iii) To the extent that the court is unable, after
applying paragraphs (i) and (ii) of this subsection, to restore
the beneficiaries, the trust, or both, to the positions they
would have occupied if the fiduciary had not abused its
discretion, the court may require the fiduciary to pay an
appropriate amount from its own funds to one (1) or more of the
beneficiaries or the trust or both.
(d) Upon a petition by the fiduciary, the court having
jurisdiction over the trust or estate shall determine whether a
proposed exercise or nonexercise by the fiduciary of a
discretionary power conferred by this act will result in an
abuse of the fiduciary's discretion. If the petition describes
the proposed exercise or nonexercise of the power and contains
sufficient information to inform the beneficiaries of the
reasons for the proposal, the facts upon which the fiduciary
relies, and an explanation of how the income and remainder
beneficiaries will be affected by the proposed exercise or
nonexercise of the power, a beneficiary who challenges the
proposed exercise or nonexercise has the burden of establishing
that it will result in an abuse of discretion.