On a cold, gray afternoon in November 1912, the Carlisle Indian Industrial School beat the U.S. Military Academy in a game of football. Led by Jim Thorpe, already a sports legend, and coached by Glenn Scoby “Pop” Warner, the game cemented Carlisle as the front-runner for being the best team in the country. It was also the debut of the double-wing formation, designed by Pop Warner specifically for the game against Army.

The Carlisle football team was, in both size and strength, a smaller team. The entire lineup consisted of only 12 members, none of whom weighed more than 170 pounds. What they lacked in size or number, however, they made up for with speed, skill, and an innovative playbook.

Army played football like a steamroller. Their players were larger; there were more of them. Their coach, Ernest “Pot” Graves, liked to encourage his team to “carry the fight to the opponent and keep it there all afternoon.”

The double-wing formation allowed Carlisle to increase their opportunity for trick plays. The way the offense approached the field was fresh and proved to be influential. The next day, the New York Times proclaimed that the Carlisle team had played “the most perfect brand of football ever seen in America.” The Carlisle team had a history of creative plays before 1912, including the single-wing formation developed by Pop Warner during the 1907 season. However, the win against Army helped drive the game from one that emphasized brute force into one that favored the intellectual capacity of the playbook. In short, the Carlisle Indian Industrial School rewrote the game of football.

The State of Florida similarly rewrote the trust law playbook with the state Supreme Court decision Phipps v. Palm Beach Trust Company, cementing the common law practice of trust decanting as a valid practice. However, decanting became a popular trust technique after a series of states began enacting decanting statutes. Decanting is a method by which a trustee can transfer assets from an existing trust to a new, substantially similar trust.

In November 2021, the State of Oklahoma enacted a decanting statute that rewrote our state’s trust law playbook. The statute now allows trustees to refresh trusts that have drafting language that prevents the trustee from accomplishing the goal of the person who created it. Some trusts have lived past the era in which they were drafted and are burdened by a lack of modern drafting language. A trustee may need to sell real property, but the trust may not have a provision that allows for the sale. The trust might contain tax language that has been rendered inefficient by a more recent tax law.

Before the law was enacted, if a trustee needed to change an irrevocable trust, they had to take the trust and the proposed changes to court. As of Nov. 1, 2021, a trustee is no longer required to change a trust through court action; instead, the trustee can utilize Oklahoma’s new decanting statute. 

This law requires that an authorized trustee give notice to the affected beneficiaries, and must include:

• A statement that the authorized trustee intends to exercise the power of distribution
• That the beneficiary has the right to object to the exercise of power,
• The beneficiary may petition a court to approve, modify, or deny the exercise of the trustee’s power to make a distribution under the act.

The notice must describe how the trustee intends to exercise the power and state the date by which the trustee intends to fund the new trust. The notice must include copies of both the old and proposed new trusts, and it must be sent to the beneficiaries at least 90 days before the creation of the new trust.

Jim Thorpe once said of football, “You have to use a lot of creativity out there.” Oklahoma’s new decanting statute allows trustees to exercise some creativity in the best interest of the beneficiaries they serve.