(6) The decanting power may be exercised before expiration of the notice period under sub. (1) if all persons entitled to receive notice waive the period in a signed record.

(7) The receipt of notice, waiver of the notice period, or expiration of the notice period does not affect the right of a person to file an application under s. 701.1309 asserting any of the following:

(a) That an attempted exercise of the decanting power is ineffective because it did not comply with this subchapter or was an abuse of discretion or breach of fiduciary duty.

(b) That s. 701.1322 applies to the exercise of the decanting power.

(8) An exercise of the decanting power is not ineffective because of the failure to give notice to one or more persons under sub. (3) if the authorized fiduciary acted with reasonable care to comply with sub. (3).

701.1309 Court involvement. (1) On application of an authorized fiduciary, a person entitled to notice under s. 701.1307 (3), a beneficiary, or with respect to a charitable interest the attorney general or other person that has standing to enforce the charitable interest, the court may do any of the following:

(a) Provide instructions to the authorized fiduciary regarding whether a proposed exercise of the decanting power is permitted under this subchapter and consistent with the fiduciary duties of the authorized fiduciary.

(b) Appoint a special fiduciary and authorize the special fiduciary to determine whether the decanting power should be exercised under this subchapter and to exercise the decanting power.

(d) Determine that a proposed or attempted exercise of the decanting power is ineffective for any of the following reasons:

1. After applying s. 701.1322, the proposed or attempted exercise does not or did not comply with this subchapter.

2. The proposed or attempted exercise would be or was an abuse of the fiduciary’s discretion or a breach of fiduciary duty.

3. The proposed or attempted exercise is expressly prohibited under the terms of the first trust.

(e) Determine the extent to which s. 701.1322 applies to a prior exercise of the decanting power.

(f) Provide instructions to the trustee regarding the application of s. 701.1322 to a prior exercise of the decanting power.

(g) Order other relief to carry out the purposes of this subchapter.

(2) On application of an authorized fiduciary, the court may approve any of the following:

(a) An increase in the fiduciary’s compensation under s. 701.1316.

(b) A modification under s. 701.1318 of a provision granting a person the right to remove or replace the fiduciary.

701.1310 Formalities. An exercise of the decanting power must be made in a record signed by an authorized fiduciary. The signed record must, directly or by reference to the notice required by s. 701.1307, identify the first trust and the 2nd trust or trusts and state the property of the first trust being distributed to each 2nd trust and the property, if any, that remains in the first trust.

701.1311 Decanting power under expanded distributive discretion. (1) In this section:

(a) “Noncontingent right” means a right that is not subject to the exercise of discretion or the occurrence of a specified event that is not certain to occur. The term does not include a right held by a beneficiary if any person has discretion to distribute property subject to the right to any person other than the beneficiary or the beneficiary’s estate.

(b) “Successor beneficiary” means a beneficiary that is not a qualified beneficiary on the date the beneficiary’s qualification is determined. The term does not include a person that is a beneficiary only because the person holds a nongeneral power of appointment.

1. A right to a mandatory distribution that is a noncontingent right as of the date of the exercise of the decanting power.

2. A current and noncontingent right, annually or more frequently, to a mandatory distribution of income, a specified dollar amount, or a percentage of value of some or all of the trust property.

3. A current and noncontingent right, annually or more frequently, to withdraw income, a specified dollar amount, or a percentage of value of some or all of the trust property.