Delaware Senate Bill 218 (Prior Session Legislation)

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Completed Legislative Action
Spectrum: Slight Partisan Bill (Democrat 7-3)
Status: Passed on June 28 2012 - 100% progression
Action: 2012-06-28 - Signed by Governor
Text: Latest bill text (Draft #1) [HTML]

This bill makes the following changes to Delaware Statutory Trust Act (the “Act”) to keep it current and to maintain its national preeminence. The following is a section-by-section review of the proposed amendments of the Act. Section 1. This section amends 3801(c) of the Act to confirm that the governing instrument of a statutory trust must be written but is not governed by any statute of frauds. Section 2. This section amends 3801(g) of the Act to confirm the broad power of a statutory trust to grant, hold or otherwise exercise a power of attorney. Section 3. This section amends 3804 of the Act to clarify the circumstances under which a statutory trust may be sued for the acts of its trustees or other authorized persons and agents acting on behalf of the foregoing in the performance of their duties under the governing instrument of the statutory trust. The amendments are not intended to alter the application of the common law doctrine of respondeat superior to statutory trusts. Section 4. This section amends 3806(b)(9) of the Act to adopt a rule different from the approach articulated in In re LJM2 Co-Investment, L.P. Limited Partners Litigation, 866 A.2d 762 (Del. Ch. 2004) with respect to the application of the type of amendment provision contained in the partnership agreement at issue in that case. This amendment provides that such amendment provisions only apply to provisions expressly included in the governing instrument of a statutory trust and do no apply to the default voting provision of the Act unless otherwise provided in the governing instrument. This amendment is not intended to affect the interpretation of such amendment provisions as applied to provisions expressly included in the governing instrument. Section 5. This section amends 3806(f)(1) of the Act to clarify the manner in which beneficial owners of a statutory trust may take action without a meeting. Section 6. This section amends 3806(g)(1) of the Act to clarify the manner in which trustees of a statutory trust may take action without a meeting. Section 7. This section amends 3808(f) of the Act by clarifying that the death, incapacity, dissolution, termination or bankruptcy of a trustee will not result in the termination or dissolution of a series of a statutory trust unless otherwise provided in the governing instrument. Section 8. This section amends 3810(d) of the Act by confirming that a certificate of correction may be filed to correct a certificate of cancellation that has been filed prior to the dissolution or completion of winding up of a statutory trust. Section 9. This section amends 3810 of the Act by establishing a method for any creditor, beneficial owner or trustee of a cancelled statutory trust and certain other persons to apply to the Court of Chancery for the appointment of a trustee or receiver to take charge of the statutory trust’s property, and prosecute or defend all suits and do all other acts which might be done by the statutory trust, if in being, that may be necessary for the final settlement of the unfinished business of the statutory trust. Section 10. This section amends 3811 of the Act to revise the section title. Section 11. This section amends 3811 of the Act to clarify, for purposes of the laws of the State of Delaware, when a power of attorney will be irrevocable, and the effects of such irrevocability. Section 12. This section amends 3815(a) of the Act to clarify the requirement for approval of an agreement of merger or consolidation by a statutory trust. Section 13. This section amends 3815(b)(1) of the Act by adding a new requirement to provide the type of business entity involved in a merger or consolidation. Section 14. This section amends 3815(f) of the Act to remove inconsistent language. Section 15. This section amends 3816(a) of the Act to expand the language regarding who has authority to bring an action to recover a judgment from “trustees with authority” to “persons with authority.” Section 16. This section amends 3816(c) of the Act to expand the language regarding who has authority to bring an action to recover a judgment from “trustees with authority” to “persons with authority.” Section 17. This section amends 3819(a) of the Act to expand the language regarding the persons from whom a beneficial owner may request certain information about the statutory trust to include “other persons who have authority to manage the business and affairs of the statutory trust.” Section 18. This section amends 3819(a) of the Act to expand the language regarding the persons from whom a beneficial owner may request certain information about the statutory trust and who may establish standards governing what information and documents are to be furnished at what time and location and at whose expense to include “other persons who have authority to manage the business and affairs of the statutory trust.” Section 19. This section amends 3820(b)(2) of the Act by adding a new requirement to provide the type of business entity converting to a Delaware statutory trust. Section 20. This section amends 3823(b)(7) of the Act to clarify that the address provided for service of process may not be that of the statutory trust’s registered agent, as applicable, without the written consent of such registered agent. Section 21. This section amends 3825 of the Act to provide that a governing instrument that provides for the application of Delaware law shall be governed and construed under the laws of the State of Delaware in accordance with its terms. This amendment is not intended to negate the application of Delaware law to the interpretation and enforcement of a governing instrument that does not explicitly provide for the application of Delaware law or to negate the application of the internal affairs doctrine to Delaware statutory trusts. Section 22. This section provides that the proposed amendments of the Act shall become effective August 1, 2012.

An Act To Amend Chapter 38, Title 12 Of The Delaware Code Relating To The Creation, Regulation, Operation And Dissolution Of Domestic Statutory Trusts.

Sen. Patricia Blevins [D]	Sen. Anthony DeLuca [D]	Sen. Margaret Henry [D]	Sen. Harris McDowell [D]
Rep. Bryon Short [D]	Sen. Gary Simpson [R]	Rep. Melanie Smith [D]	Sen. Liane Sorenson [R]
Rep. Rebecca Walker [D]	Rep. Lincoln Willis [R]

2012-06-21 - House - House Third Reading (Y: 40 N: 0 NV: 0 Abs: 1) [PASS]
2012-06-05 - Senate - Senate Third Reading (Y: 20 N: 0 NV: 0 Abs: 1) [PASS]

Date	Chamber	Action
2012-06-28		Signed by Governor
2012-06-21		Passed by House of Representatives. Votes: Passed 40 YES 0 NO 0 NOT VOTING 1 ABSENT 0 VACANT
2012-06-13		Reported Out of Committee (ECONOMIC DEVELOPMENT/BANKING/INSURANCE/COMMERCE) in House with 11 On Its Merits
2012-06-06		Introduced and Assigned to Economic Development/Banking/Insurance/Commerce Committee in House
2012-06-05		Passed by Senate. Votes: Passed 20 YES 0 NO 0 NOT VOTING 1 ABSENT 0 VACANT
2012-05-16		Reported Out of Committee (BANKING) in Senate with 6 On Its Merits
2012-05-09		Assigned to Banking Committee in Senate

Type	Source
Summary	http://legis.delaware.gov/LIS/lis146.nsf/2bede841c6272c888025698400433a04/f2ba70877362c4ca852579f2005ec51f?OpenDocument
Text	http://legis.delaware.gov/LIS/lis146.nsf/vwLegislation/SB+218/$file/legis.html?open
Roll Call	http://legis.delaware.gov/LIS/lis146.nsf/7712cf7cc0e9227a852568470077336f/3ef04b2bc2c5beb885257a1400686bf3?OpenDocument
Roll Call	http://legis.delaware.gov/LIS/lis146.nsf/7712cf7cc0e9227a852568470077336f/2a6b25f13958fe3785257a240074c2e5?OpenDocument