At present, the law of trusts in Maryland is largely a creature of the Common Law. Conceptually, rules regulating complex human relationships, like the fiduciary duties owed by a trustee to a trust beneficiary, may be more perfectly developed by the evolutionary process of the Common Law as opposed to the attempting to codify such rules: “What has been said [about the development of judge-made law] will explain the failure of all theories which consider the law only from its formal side; whether they attempt to deduce a corpus from a priori postulates, or fall into the humbler error of supposing the science of the law to reside in the elegantia juris, or logical cohesion of part with part. The truth is that the law is always approaching, and never reaching, consistency. It is forever adapting new principles from life at one end, and it always retains old ones from history at the other, which have not yet been absorbed or sloughed off. It will become entirely consistent only when it ceases to grow.”[1]
The Common Law of Maryland, and of most states, however, has a dearth of cases offering guidance in trust cases. In the 2012 General Assembly, the Maryland State Bar Association proffered a codification of the law of trusts modeled after the Uniform Trust Code.[2] This proposed codification (the “Maryland Trust Act”), as well as the Uniform Trust Code itself, does not purport to sweep away the Common Law but to augment it.[3] Although not yet governing the law of Maryland, this paper will address the treatment of a beneficiary’s right to information and to trust enforcement under, the Common Law, the Uniform Trust Act and the Maryland Trust Act.
[1] Oliver Wendell Holmes, Jr., The Common Law, Lecture I-Early Forms of Liability(Project Gutenberg 2000, www.gutenberg.org).
[2] HB 682. HB 750 was introduced, then withdrawn, in the 2011 Session of the Maryland General Assembly. The Uniform Trust Code was completed by the National Conference of Commissioners in 2000 with amendments in 2001, 2003, 2004 and 2005. It has been enacted, in some form, in 25 jurisdictions, including D.C., Virginia, and Pennsylvania. In 2012 forms of the UTC are being introduced in New Jersey and Massachusetts as well as in Maryland.
[3] The Reporter for the Uniform Trust Code addressed the relationship that the UTC was meant to have with the existing body of Common Law: “[E]fforts to reduce rules to writing will result in excess rigidity and insufficient discretion vested in the Courts to adapt to changing conditions. Even on issues that drafters have elected to codify, the UTC, in many cases, does not specify every detail, the drafters preferring flexibility and brevity to greater precision.” David M. English, The Uniform Trust Code (2000): Significant Provisions and Policy Issues, 67 Mo. L. Rev. 143-144 (2002).
