2014 West Virginia Code
CHAPTER 44D. UNIFORM TRUST CODE
ARTICLE 10. LIABILITY OF TRUSTEES AND RIGHTS OF PERSONS DEALING WITH TRUSTEE.
§44D-10-1008. Exculpation of trustee.
(a) A term of a trust instrument relieving a trustee of liability for breach of trust is unenforceable to the extent that it:
(1) Relieves the trustee of liability for breach of trust committed in bad faith or with reckless indifference to the purposes of the trust or the interests of the beneficiaries; or
(2) Was inserted as the result of an abuse by the trustee of a fiduciary or confidential relationship to the grantor.
(b) An exculpatory term drafted or caused to be drafted by the trustee is invalid as an abuse of a fiduciary or confidential relationship unless:
(1) The trustee proves that the exculpatory term is fair under the circumstances and that its existence and contents were adequately communicated to the grantor; or
(2) The grantor was represented by an attorney not employed by the trustee with respect to the trust and the attorney provided independent legal advice.
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