3.1.3 “State of Mind Not Contemplated” Standard

In his treatise, Professor Scott distils the test to the “state of mind not contemplated” standard: “The real question is whether it appears that the trustee is acting in a state of mind in which it was contemplated by the settlor that he should act.”[1]   This shift away from “reasonableness” would appear to embrace subjective criteria which, by its nature, would be difficult for a court to second guess. It reduces the standard to a test of whether an abuse of discretion has occurred, in trusts providing for of extended trustee discretion, to whether the power was exercised or, for that matter not exercised, in bad faith or through some other showing of improper motive and not in the state of mind contemplated by the settler that he or she would act.