IN THE SUPREME COURT OF NORTH CAROLINA 2022

- NCSC

- 104 No. 488PA20 Filed 19 August 2022 MARY COOPER FALLS WING , et al.

v. GOLDMAN SACHS TRUST COMPANY, N.A., et al.

_________________________________ RALPH L. FALLS III, et al.

v. GOLDMAN SACHS TRUST COMPANY, N.A., et al.
On discretionary review pursuant to N.C.G.S. § 7A

- 31 of a unanimous decision of the Court of Appeals, 274 N.C. App. 144 (20 20 ), reversing an order entered on
20 May 201 9 by Judge Edwin G. Wilson Jr. in Superior Court, Wa ke County , and remanding the case to the trial court

. Heard in the Supreme Court on 22 March 202 2

. Womble Bond Dickinson (US) LLP, by Johnny M. Loper , Elizabeth K. Arias, and Jesse A. Schaefer, for plaintiff

- appellee Mary Cooper Falls Wing ; and James, McElroy & Diehl, P.A., by Fred B. Monroe, for plaintiff

- appellees Ralph L. Falls III; M.E.F., by her next friend and parent, Ralph L. Falls III; L.C.F., by her next friend and parent, Ralph L. Falls III; and J.B.F., by his next friend and parent, Ralph L. Falls III. J. Mitchell Armbruster, James K. Dorsett III, and Eva Gullick Frongello for defendant

- appellant Goldman Sachs Trust Company, N.A. Alan W. Duncan, Allis on O. Mullins, and Hillary M. Kies for defendant

appellant Dianne C. Sellers ; and Leslie C. Packer, Alex J. Hagan, and Michelle A. Liguori for defendant

- appell ants Louise Falls Cone, Toby Cone, Gillian Falls Cone, and Katherine Lenox Cone.W ING V
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John V. Orth, p ro se, amicus curiae.

BARRINGER , Justice

. ¶ 1 In this matter, we address the extent of a trustee’s duties and powers concerning litigation challenging trust amendments. We ultimately hold that the
trustee in this case had the power to defend the litigation

. We need not and cannot resolve the separate issue of whether the trustee also had a duty to defend the litigation in this matter

. A trustee’s duty to defend is more limited than its power s . It is confined to actions which may res ult in a loss to the trust estate. We also hold that the Court of Appeals erred by applying N.C.G.S. § 31

- 36, a statute applicable to will caveats, to this trust proceeding. Although both wills and trusts may be used to dispose of property at death, a trus t is not a will. The law applicable to each is often different. Given our holding on th e s e issue s and others, we vacate in part and reverse in part the Court of Appeals’ decision. I. Background ¶ 2 In May 2018, Mary Cooper Falls Wing (Wing) and Ralph L. Fall s III (Falls) (collectively, plaintiffs) commenced litigation to set aside certain amendments to the Ralph Falls Revocable Declaration of Trust (Trust) created by their father Ralph L. Falls Jr. ( d ecedent). Through t he challenged amendments , decedent remov ed Wing and Falls as beneficiaries of the Trust

. In his last amendment to the Trust (FifthW ING V
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Amendment), decedent named as the Trust’s beneficiaries Dian n e C. Sellers (Sellers) , Louis e Falls Cone, Toby Cone, Gillian Falls Cone, and Kath a rine Lenox Cone 1 (col lectively, defendant beneficiaries)

. Decedent married Sell e rs in 2014 , and Louis e Fall s Cone i s d ecedent ’ s daughter. Louis e is married to Toby , and Gillian and Kath a rine are Louis e and Toby ’s children. ¶ 3 In their complaints, Wing and Falls both allege that decedent lacked the capacity to amend the Trust and that Sell e rs, Louis e Falls Cone, and others unduly influence d decedent . They also both seek relief , whether injunctive or by judgment , against the trustee, Goldman Sachs Trust Co., N.A. (Goldman Sac hs) , for distributions to defendant beneficiaries, which they claim were invalid given that there were pending judicial proceedings challenging the T rust amendments ’ validity

. Wing and Falls name d defendant beneficiaries and Goldman Sachs as defendants in the ir respective actions. ¶ 4 After commencing this litigation , Wing filed a “Motion to Freeze Administration of Revocable Trust Until Beneficiaries A re Determined

. ” In each of the proceedings, d efendant b eneficiaries then filed a “ Joint Motion to Pay Defense Cost s , ” seeking an “order directing Goldman Sachs, as trustee, to pay [defendant

1 We have used the spelling of Katharine as reflected in the complaint but note that the Fifth Amendment uses a different spelling.W ING V
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beneficiaries] the cost s of defending the trust in this case .” Defendant beneficiaries stated in the ir m otions that :

13. Goldman Sachs prefers that [defendant beneficiaries]

— the beneficiaries of the revocable trust

— be the parties that defend the trust, rather than Goldman Sachs. Thus, [defendant] beneficiaries are and have been in the role of defending the trust. In light of Ms. Wing’s motion to freeze , it would be appropriate for the [trial c] ourt to enter an order denying th at request and to also enter an order allowing Goldman Sachs to make distributions from the trust for the costs of defending the trust so the trust can be defended.
14. To ensure that the d uties of the trustee are discharged, [defendant beneficiaries] seek distributions from the trust administered by Goldman Sachs sufficient to cover the costs and expenses of defending the trust in this litigation. WHEREFORE, [defendant beneficiaries] respe ctfully request that the [trial c] ourt enter an order directing Goldman Sachs as trustee to make regular reimbursements to [defendant beneficiaries] for the life of this lawsuit sufficient to cover the costs and expenses of defending the trust. ¶ 5 Wing then filed an “Amended Motion to Freeze Administration of Revocable Trust Until Beneficiaries Are Determined o r i n t he Alternative, to Pay Defense Costs for All Purported Beneficiaries. ” ¶ 6 Goldman Sachs , as trustee , filed a brief support ing defendant beneficiaries’ motions to pay and opposing Wing’s motion to freeze

. In its brief, Goldman Sachs argued that because Goldman Sachs , as trustee , had “ a duty to defend the trust, theW ING V
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[trial c] ourt should allow [Goldman Sachs] to pay the legal expens es of [defendant b] eneficiaries which [Goldman Sachs] deems are being incurred to defend the Trust. ” Goldman Sachs “ request [ed] the [trial c] ourt’s instruction s and guidance as to the future payment of legal fees to [defendant b] eneficiaries’ counsel so th at their counsel can continue to appropriately carry out its duty to defend the Trust. ” ¶ 7 After a hearing on 20 March 2019 and the tendering of competing draft orders , t he trial court, using one of defendant beneficiaries’ proposed order s , granted the

m otion s to p ay and ordered that:

Defendant Goldman Sachs, as Trustee of the Revocable Trust

. . . shall , in the proper exercise of its business judgment, make distributions to [defendant beneficiaries] for payment for legal fees incurred by them in the above

captioned cases with respect to their defense of this matter. This Order is without prejudice to any party’s other remaining claims and defenses in these matters. ¶ 8 Plaintiffs appealed the trial court’s o rder gr anting the m otions to p ay (Pay Order)

. ¶ 9 On appeal, t he C ourt of Appeals concluded that plaintiffs had shown that the appealed interlocutory order , the Pay Order, affected “substantial right s . ” Wing v. Goldman Sachs Tr. Co. , 274 N.C. App. 144, 153 (2020 ). Thus, the Court of Appeals allow ed appellate review pursuant to N.C.G.S. § 1

- 277 (a)

. Id. at 147, 153. ¶ 10 The Court of Appeals next decided that a subsection of a statute addressing will caveats, N.C.G.S. § 31

- 36(a)(1), “provide[d] the framework for t he case.” Id. atW ING V
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153. Then, after concluding that “ the trustee ’ s duty of and liability for distrib ution to disputed beneficiaries during pending litigation [ was ] an issue of first impression in North Carolina , ” the Court of Appeals analyzed two decisions from the California Court s of Appeal

. Id. at 154

– 55 . Finding these decisions persuasive, the Court of Appeals held that:

The Trust does not need defending in the case before us because there is no contest to the validity of the Trust. This dispute is betwe en the rightful beneficiaries, and the Trust is not in peril. Goldman Sachs has breached their duty of neutrality by deciding who the rightful beneficiaries are before pending litigation has resolved that issue.

. . . .

. . . The trustee is not required to pay attorney fees or legal costs unless the res of the Trust is in peril

. Id. at 155

– 56

. ¶ 11 The Court of Appeals concluded that “ [t] he trial court erred by not freezing and by ordering distributions from the Trust to some putative beneficiaries but not others during pending litigation [,] ” and it reverse d the Pay Order and remand ed to the trial court for entry of an order allowing the m otion to f reeze . Id. at 156. ¶ 12 Defendant beneficiaries and Goldman Sachs petitioned this Court for discretionary review pursuant to N.C.G.S. § 7A

- 31. This Court allowed both petitions.W ING V
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II. Standard of Review ¶ 13 “ Review by th [ is]

. . . Court after a determination by the Court of Appeals, whether by appeal of right or by discreti onary review, is to determine whether there is error of law in the decision of the Court of Appeals. ” N.C. R. App. P. 16(a) ; see , e.g. , State v. Melton , 371 N.C. 750, 756 (2018)

. III. Appellate Jurisdiction ¶ 14 As defendant beneficiaries challenge the Court o f Appeals’ exercise of jurisdiction over plaintiffs’ interlocutory appeal, we address that issue first. ¶ 15 Unless the General Statutes of North Carolina provide an exception, “there is no right of immediate appeal from interlocutory orders.” Goldston v. Am. Motors Corp. , 326 N.C. 723, 725 (1990). Subsection 1

- 277(a) states as follows:

An appeal may be taken from every judicial order or determination of a judge of a superior or district court, upon or involving a matter of law or legal inference, whether made in or out of session, which affects a substantial right claimed in any action or proceeding; or which in effect determines the action, and prevents a judgment from which an appeal might be taken; or discontinues the action, or grants or refuses a new trial. N.C. G.S. § 1

- 277 (a) (2021) ; see also N.C.G.S. § 7A

- 27 (b)(3)(a) (2021)

. ¶ 16 “The ‘ substantial right ’ test for appealability of interlocutory orders is that the right itself must be substantial and the deprivation of that right must potentially

wor k injury if not corrected before appeal from final judgment.” Frost v. Mazda Motor of Am., Inc. , 353 N.C. 188, 192 (2000) (cleaned up). “If appellant’s rights would beW ING V
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fully and adequately protected by an exception to the order that could then be assigned as error on appeal after final judgment, there is no right to an immediate appeal.” Id. at 194 (cleaned up). ¶ 17 An assessment of whether an order impacts a substantial right often requires

“ consider ing the particular facts of that case and the procedura l context in which the order from which appeal is sought was entered. ” Waters v. Qualified Pers

. , Inc. , 294 N.C. 200, 208 (1978). “It is the appellant ’ s burden to present appropriate grounds for acceptance of an interlocutory appeal , and not the duty of this Court to construct arguments for or find support for appellant ’ s right to appeal.” Hanesbrands Inc. v. Fowler , 369 N.C. 216, 218 (2016) (cleaned up). A. Motion s to Pay ¶ 18 Defendant beneficiaries argue that the Court of Appeals erred by exercising jurisdiction over plaintiffs ’ appeal of an interlocutory order. Specifically, they assert that “the trial court’s order allowing [Goldman Sachs] to pay costs from the Revocable Trust to defend a presumptively valid amendment does not affect a substantial r ight because it only involves money in [the T] rust.” ¶ 19 According to plaintiffs, “the Court of Appeals properly exercised immediate jurisdiction over the Pay Order because it purported to determine both that [defendant beneficiaries] alone should benefi t from the Trust during the pendency of the litigation and that [plaintiffs] could not seek to be made whole even if they succeedW ING V
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on the merits. ” T he Court of Appeals held, in part, that the Pay Order was immediately appealable because “ no return of funds

. . . is guaranteed” on account of Goldman Sachs’ “claims [that] it has no liability from distributing funds ” pursuant to the Pay Order. Wing , 274 N.C. App. at 152

. Plaintiffs maintain that either : (1) the Pay Order impacts a substantial right because as Goldman Sachs contends, “ the

ex istence of the Pay Order prevents [plaintiffs] from recovering the payments made to [defendant beneficiaries] during the pendency of this case

— even if they are in violation of the true terms of the Trust and even if the Pay O rder was erroneous” or (2) the Pay Order does not affect a substantial right because it does not preclude plaintiffs from obtaining a judgment against Goldman Sachs for distributions made to defendant beneficiaries after the entry of the Pay Order. ¶ 20 O n the record before us, we agree that the Pay Order impact s a substantial right. T he trial court received draft orders addressing the trial court’s ruling on the

m otion s to p ay from both defendant beneficiaries and plaintiffs . Plaintiffs explained in their letter to the trial court that :

T he key disagreement between the parties [regarding the proposed order] is whether the [trial c]ourt intended to rule that [Goldman Sachs] :

 may make distributions for legal fees defending the most recent trust amendment, subject to potential liability if th at trust amendment is determined to be invalid; orW ING V
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 shall make distributions for legal fees, without apparent liability, regardless of how the merits of the underlying claims are ultimately decided

. ¶ 21 Plaintiffs’ proposed order used “may,” and defendant beneficiaries ’ proposed order used “shall.” Plaintiffs’ proposed order also state d : “ T his Order is without prejudice to any party’s remaini ng claims and defenses in th e s e matter s , including [Wing]’s claim for wrongful distribution s against D efendant Goldman Sachs .” ¶ 22 T he trial court u tilized defendant beneficiaries’ proposed order, which granted the m otions to p ay and ordered that:

Defendant Goldman Sachs, as Trustee of the Revocable Trust

. . . shall , in the proper exercise of its business judgment, make distributions to [defendant beneficiaries] for payment for legal fees incurred by them in the above

captioned cases with respect t o their defense of this matter. This Order is without prejudice to any party’s other remaining claims and defenses in these matters. ( E mphas e s added

. ) Notably, the trial court employed the word “ shall ” and d id not explicitly indicate that the order was wi thout prejudice to Wing’s claim for wrongful distribution against Goldman Sachs. ¶ 23 Given this procedural context and record , the Pay Order does not purport to simply “allow” Goldman Sachs to pay costs from the T rust as defendant beneficiaries contend. Rather, the record supports the Court of Appeals ’ conclusion that the “order affirmatively order[s] payment s by a trustee with distributions from a trust to some purported beneficiaries, and not others, when the rightful beneficiaries are disputed,”W ING V
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Wing , 274 N.C. App. at 151, and “ [i] f Wing prevails on her claims of wrongful distribution [against Goldman Sachs] , no return of funds or credit to offset future payments is guaranteed [,] ” id. at 1 5 2. ¶ 24 Before this Court , Goldman Sachs has argued that no c ourt can hold Goldman Sachs liable for pay ing defendant beneficiaries ’ litigation expense s pursuant to the Pay Order even if reversed on appeal

. Yet, s ubsection 36C

- 6

- 604(b) of the North Carolina Uniform Trust Code imposes liability on trustees for distrib utions of trust property when the trustee knows of a pending judicial proceeding contesting the validity of the trust. N.C.G.S. § 36C

- 6

- 604(b) (2021)

. Pursuant to this subsection, plaintiffs, as beneficiaries under the alleged last valid amendment to the Trust , could seek to hold Goldman Sachs liable for distributions if successful in this litigation . In other words, plaintiffs have a potential right under N.C.G.S. § 36C

- 6

- 604(b). ¶ 25 Nevertheless , the trial court ’ s order pursuant to its authorit y “ to determine any question arising in the administration or distribution of any trust,” N.C.G.S. § 36C

- 2

- 203(a) (9) (2021) , directed Goldman Sachs to make distributions to defendant beneficiaries for their litigation legal fees , which defendant beneficiar ies incurred after “[ t ] he trustee kn [ew] of a pending judicial proceeding contesting the validity of the trust , ” N.C.G.S. § 36C

- 6

- 604(b)(1). W hen a trial court has jurisdiction over both the parties and the subject matter, an order by the trial court enjoi ning or directing conduct binds the parties even if erroneous unless or until it is vacated or modifiedW ING V
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by the trial court or in the action on appeal. Elder v. Barnes , 219 N.C. 411, 415 (1941) ; Hearne v. Stanly Cnty. , 188 N.C. 45, 51 (1924)

. Thus, Goldman Sachs is bound to abide by the trial court’s order. Cf. Elder , 219 N.C. at 415

– 16 (affirming an order “adjudging the defendant in contempt of court for willful disobedience to an order lawfully issued”); Hearne , 188 N.C. at 51 (recognizing t hat an act in violation of an injunction “then alive and in force” is “ an unlawful act”). As Joh n V. Orth, an amicus in this matter and a Professor of Law at the University of North Carolina School of Law explained in his amicus brief:

Where instructions a re sought from a [trial] court, it is essential to the efficient administration of trusts that the trustee be able to rely on such instructions

. . . . P enalizing a trustee for obeying the order of a court of competent jurisdiction, even if ultimately found to be erroneous, would confound trust administration, unsettle expectations, and jeopardize the rule of law. ¶ 26 W e conclude herein that the trial court did have jurisdiction and th at the trial court direct ed distributions . Further, we agree that in the context of this case where instruction concerning trust distributions from the trial court has been sought and provided by lawful order, if not appealed before final judgment, plaintiffs might not have be en able to recover from Goldman Sachs for dis tributions made in accordance with the Pay Order pursuant to N.C.G.S. § 36C

- 6

- 604(b) even if they successfully establish ed themselves as the rightful beneficiaries under the T rust

. In other words,
t he Pay Order may determine Wing’s wrongful distribution cl aim under N.C.G.S.W ING V
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§ 36C

- 6

- 604(b) by foreclosing monetary recovery from Goldman Sachs from the date of entry of the Pay Order, 20 May 2019, until modified by the trial court or reversed in the action on appeal

. See Frost , 353 N.C. at 192, 193 (“The denial of class certification has been held to affect a substantial right because it determines the action as to the unnamed plaintiffs.”). Moreover, it is also important to ensure that persons serving as trustees be able to obtain definitive instructions concer ning the manner in which a trust should be administered. Thus, in this case, t he right to collect from Goldman Sachs, as trustee, for the distributions during a pending judicial proceeding contesting the validity of the trust during that time period might be lost absent an appeal before final judgment of the Pay Order

. Cf. id. at 194 ( holding that an order imposing costs on a party was not immediately reviewable because it could be reviewed upon appeal from a final judgment and thus would not be “lost or ir remediably adversely affected”). Th us, for all of these reasons , we are convinced that, absent an appeal before final judgment, a substantial right of plaintiffs will potentially be impaired in the absence of an immediate appeal from the Pay Order

. B. Motion to Freeze ¶ 27 Defendant beneficiaries also argue that the Court of Appeals lacked jurisdiction to review the trial court’s ruling on Wing ’ s m otion to f reeze. Defendant beneficiaries contend that plaintiffs did not appeal th is ruling

. P laintiffs expressly indicated in their reply brief before the Court of Appeals that “no one has appealedW ING V
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that portion of the order,” and thus the Court of Appeals “ does not have jurisdiction to review it

. ” Before this Court, p laintiffs concede that they did not appe al the portion of the trial court’s order denying the m otion to f reeze and it wa s not before the Court of Appeals

. T hus, we conclude that the Court of Appeals erred by addressing the

m otion to f

reeze and by remanding to the trial court for entry of an orde r allowing the

m otion to f

reeze . Wing , 274 N.C. App. at 156

. Accordingly, we vacate the portions of the Court of Appeals ’ decision addressing the m otion to f reeze. IV. Analysis A. Trial Court’s Subject Matter Jurisdiction ¶ 28 W e first consider plaintiffs’ challenge to the trial court ’ s subject matter jurisdiction to grant the m otion s to p ay. W ithin the actions commenced by plaintiffs , d efendant beneficiaries filed the m otions to p ay, and Goldman Sachs , as trustee , filed a brief support ing the m o tions to p ay . Here, p laintiffs for the first time claim that Goldman Sachs or defendant beneficiaries had to file a pleading seeking instruction concerning the T rust for the trial court to have jurisdiction . However , plaintiffs acknowledge that trial courts have the authority to enter orders providing trust instructions

. ¶ 29 “ W hether or not a trial court possesses subject

- matter jurisdiction is a question of law that is reviewed de novo

. ” In re A.L.L. , 376 N.C. 99, 101 (2020)

. “ C hallenges to a trial court ’ s subject

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including for the first time before this Court

. ” Id. (cleaned up). However, “ [t] his Court presumes the trial court has properly exercised jurisdiction unless the party challengi ng jurisdiction meets its burden of showing otherwise.” In re L.T. , 374 N.C. 567, 569 (2020). ¶ 30 The legislature has established the subject matter jurisdiction of clerks of superior court and of the superior court division of the General Court of Justi ce in the North Carolina Uniform Trust Code. N.C.G.S. § 36C

- 2

- 203. Specifically, Article 2 of the North Carolina Uniform Trust Code, Judicial Proceedings , contains a statute entitled “Subject matter jurisdiction.” N.C.G.S. § 36C

- 2

- 203. Subsection 36C

- 2

- 203 (a) “make[s] clear that the clerk of court and the superior court division of the General Court of Justice have concurrent jurisdiction,” N.C.G.S. § 36C

- 2

- 203 supp. N.C. cmt.
2007 (2021) , over proceedings “ to determine any question arising in the administration or distribution of any trust,” N.C.G.S. § 36C

- 2

- 203(a) (9)

. ¶ 31 “In resolving issues of statutory construction, we look first to the language of the statute itself.” Hieb v. Lowery , 344 N.C. 403, 409 (1996).

When the language of a statute i s clear and without ambiguity, it is the duty of this Court to give effect to the plain meaning of the statute, and judicial construction of legislative intent is not required.

. . . An unambiguous word has a definite and well [

- ] known sense in the law. I n the event that the General Assembly uses an unambiguous word without providing an explicit statutory definition, that word will be accorded its plain meaning.W ING V
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Fid. Bank v. N.C. Dep’t of Revenue , 370 N.C. 10, 18

– 19 (2017) (cleaned up). “ To determine the plain meaning, this Court has looked to dictionaries as a guide. ” Raleigh Hous

. Auth

. v. Winston , 376 N.C. 790, 2021

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- 16, ¶ 8. ¶ 32 Notably, N.C.G.S. § 36C

- 2

- 203 (a) uses the term “ proceeding s ” when describing the concurrent jurisdiction. N.C.G.S. § 36C

- 2

- 203 (a)

. “Proceedings,” by itself, is not a specifically defined term in the North Carolina Uniform Trust Code. See N.C.G.S. §§ 36C

- 1

- 101 to

- 11

- 1106 (2021). 2 Definitions of “ proceeding ” include :

1. The regular and orderly progression of a lawsuit, including all acts and events between the time of commencement and the entry of judgment. 2. Any procedural means for seeking redress from a tribunal or agency. 3. An act or step that is part of a larger ac tion. 4. The business conducted by a court or other official body; a hearing. Proceeding , Black’s Law Dictionary (11th ed. 2019) ( including all definitions of

“ proceeding ” by itself except for the definition specifically designated for bankruptcy ) ; Proceedings , New Oxford American Dictionary (3rd ed. 2010) (defining “ proceeding s ” to include an “action taken in a court to settle a dispute”)

.

2 However, the North Carolina Uniform Trust Code delineates proceedings that fall within “proceedings concerning the internal affairs of trusts , ” N.C.G.S. § 36C

- 2

- 203(a) (2021) , and “ a proceeding to enforce a charitable trust,” N.C.G.S. § 36C

- 4

- 405.1(a) (20 21) ; s ee also N.C.G.S. § 36C

- 2

- 201(c) (2021) ( “ A judicial proceeding involving a trust may relate to any matter involving the trust ’ s administration, including a request for instructions and an action to declare rights

. ” )

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¶ 33 The term pleading is not used in N.C.G.S. § 36C

- 2

- 203. See N.C.G.S. § 36C

- 2

- 203. A “ pleading ” is “[a] for mal document in which a party to a legal proceeding (esp. a civil lawsuit) sets forth or responds to allegations, claims, denials, or defenses .” Pleading , Black’s Law Dictionary (11th ed. 2019) ; see also Complaint , Black’s Law Dictionary (11th ed

. 2019) (“ The initial pleading that starts a civil action and states the basis for the court ’ s jurisdiction, the basis for the plaintiff ’ s claim, and the demand for relief. In some states, this pleading is called a petition. ” (cleaned up) ). P laintiffs argue that Gol dman Sachs or defendant beneficiaries had to file a pleading for the trial court to have jurisdiction , instead of a motion within the actions commenced by plaintiffs ’ pleadings

. However, t he plain language of the term used in the statute on subject matter jurisdiction , “ proceeding s , ” is much broader and contains no such additional limiting language

. ¶ 34 Also, u nder Article 2, N.C.G.S. § 36C

- 2

- 201(a) provide s that : “ T he court may intervene in the administration of a trust to the extent its jurisdiction is invoked by a party or as provided by law

. ” N.C.G.S. § 36C

- 2

- 201(a) (emphasis added) . “ Invoked ” is not a defined term and is not used elsewhere in the North Carolina Uniform Trust Code. See N.C.G.S. §§ 36C

- 1

- 101 to

- 11

- 1106. While not defined in Black’s Law Dictionary, definitions of “invoke” from other dictionaries include “[t]o call on (a higher power) for assistance [and] support,” “[t]o call for earnestly; solicit,” Invoke , American Heritage Dictionary (5th ed. 2018), and “cite or appeal to (someone orW ING V
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s omething) as an authority for an action,” Invoke , New Oxford American Dictionary (3rd ed. 2010). Thus, the plain meaning of the word “ invoke ” encompasses conduct other than the filing of a pleading with the trial court. And d efendant beneficiaries’ filing of a motion within the actions commenced by plaintiffs ’ pleadings falls within the broad meaning of the term “ invoke

. ” ¶ 35 Plaintiffs also argue that another subsection of the North Carolina Uniform Trust Code, N.C.G.S § 36C

- 2

- 205(a), supports their posi tion in that it provides that parties shall commence trust proceedings before the clerk of superior court by filing a complaint as in civil actions. Given our adherence to the plain language of a statute, generally, the legislature has not shown an intent for a statutory requirement “to function as prerequisites for

. . . jurisdiction” w hen the legislature neither mentions jurisdiction in the statute nor references it in the statute entitled “jurisdiction

. ” In re D.S. , 364 N.C. 184, 193

– 94 (2010). On its face , N.C.G.S. § 36C

- 2

- 205(a) does not mention jurisdiction, and N.C.G.S. § 36C

- 2

- 205(a) is not mentioned in the s tatute dedicated to subject matter jurisdiction, N.C.G.S. § 36C

- 2

- 203. ¶ 36 Because the language employ ed by the legislature in § § 36C

- 2

- 201,

- 203, and

- 205 does not reflect a jurisdictional pleading requirement and defendant beneficiaries filed the m otions to p ay in the actions commenced by plaintiffs’ complaint , we reject plaintiffs’ contention that the trial court lacked subject matter jurisdiction to address the m otion s to p ay. “[I]t is our duty to give effect to the wordsW ING V
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actually used in a statute and not to delete words used or to insert words not used.” Lunsford v. Mills , 367 N.C. 618, 623 (2014). Plaintiffs have not met their burde n ; they have not shown that the language or the structure of the North Carolina Uniform Trust Code shows an intent by the legislature to require a subsequent pleading for subject matter jurisdiction in the procedural context presented to us in this case

. B. Dut y to Defend ¶ 37 Goldman Sachs and defendant beneficiaries submit that Goldman Sachs , as trustee , has the duty to pay defendant beneficiaries ’ litigation expenses arising from these proceedings and that the Court of Appeals erred by holding otherwise

. D efendant beneficiaries also maintain that the North Carolina Uniform Trust Code allows a trustee to exercise its business judgment to provide for the defense of the Fifth Amendment to the Trust , which the Court of Appeal s erroneously failed to recognize. They present several arguments in support of their position s . ¶ 38 First, Goldman Sachs contends that “ [a] party’s final trust document

. . . is presumed valid and the trustee must act according to the instructions set forth within that document .” For thi s proposition, Goldman Sachs relies on a Court of Appeals ’ decision , In re Estate of Phillips , 251 N.C. App. 99 (2016). Yet, Phillips does not address a trust, a trustee’s dut ies or actions, or a document ’ s presumption of validity. See id. at 1 10

– 11 , 11 3

– 14

. Rather, it states : “ T he presumption is that every individual has the requisite capacity to make a will, and those challenging the will bear theW ING V
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burden of proving, by the greater weight of the evidence, that such capacity was wanting. ” Id. at 110 (cle aned up). As presented to us by Goldman Sachs, we do not see the relevance of this case to the proposition that a trust document is presumed valid

. ¶ 39 Defendant beneficiaries make the same argument

— a revocable trust is presumptively valid upon a settlor ’ s death

. However, the caselaw relied on by defendant beneficiaries recognize s that “ the probate of a will by the Clerk of Superior Court is a judicial act, and his certificate is conclusive evidence of the validity of the will, until vacated on appeal, or declared void by a competent tribunal in a proceeding instituted for that purpose. ” Walters v. Baptist Child

. ’ s Home of N.C., Inc. , 251 N.C. 369, 377 (1959) ; In re Will of Neal , 227 N.C. 136, 138 (1947) (same)

. Thus, the presumption of validity in Walters and Neal arise s from the judicial act of probate taken by the c lerk of s uperior c ourt . A settlor’s death is not a judicial act , and none of the cases cited by defendant beneficiaries address a trust. Therefore, we do not find these cases persuasive. 3 ¶ 40 The North Carolina Uniform Trust Code also contradict s Goldman Sachs ’ and defendant beneficiaries’ proposition

. Sub s ection 36C

- 6

- 604 (b) states as follows :

3 The General Assembly has also provided by statute that “ [s] uch record and probate is conclusive in evidence of the validity of the will, until it is vacated on appeal or declared void by a competent tribunal.” N.C.G.S. § 28A

- 2A

- 12 (2021)

. The North Caroli na Uniform Trust Code contains n o such statute to this effect concerning the validity of a trust. See N.C.G.S. §§ 36C

- 1

- 101 to

- 11

- 1106 (2021)

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Upon the death of the settlor of a trust that was revocable at the settlor ’ s death, the trustee may proceed to distribute the trust property in accordance with the terms of the trust. The trustee is not subject to liability for doing so unless : (1) The trustee knows of a pending judicial proceeding contesting the validity of the trust ; or (2) A potentia l contestant has notified the trustee of a possible judicial proceeding to contest the trust, and a judicial proceeding is commenced within 60 days after the contestant sent the notification. N.C.G.S. § 36C

- 6

- 604 (b) (emphas e s added). Notably, “may” is used , not “shall.” “ The word ‘ may , ’ as used in statutes , in its ordinary sense , is permissive and not mandatory. ” Rector v. Rector , 186 N.C. 618 , 620 (1923) ; see also State v. Waycaster , 375 N.C. 232, 240 (2020) (“ This Court has repeatedly interpreted the General Assembly ’ s usage of the word ‘ may ’ as having a permissive

— as opposed to a mandatory

— effect. ”). ¶ 41 Further, i f “[a] party’s final trust document

. . . is presumed valid and the
trustee must act according to the instructions set forth within that document” as Goldman Sachs contends, then a trustee would always be required to distribute the trust proceeds and be subject to liability for doing so pursuant to N.C.G.S. § 36C

- 6

- 604(b). We are not convinced that th e legislature intend ed this result

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¶ 42 Therefore, based on the arguments before us, we are not persuaded that the Court of Appeals erred by “fail[ing] to acknowledge the presumptive validity of the Trust Document.” ¶ 43 However, we agree with Goldman Sachs ’ and defendant beneficiaries’ second argument that the Court of Appeals erred by applying N.C.G.S. § 31

- 36, a statute applicable to will caveats , to this trust proceeding. P laintiffs concur that the Court of Appeals erred by concluding that N.C.G.S. § 31

- 36 was controlling in this trus t proceeding but contend it is persuasive

. ¶ 44 Under the North Carolina Uniform Trust Code, N.C.G.S. § 36C

- 1

- 112 provides that : “ T he rules of construction that apply in this State to the interpretation of and disposition of property by will also apply as appropriate to the interpretation of the terms of a trust and the disposition of the trust property.” N.C.G.S. § 36C

- 1

- 112 (2021). Relying on this provision, the Court of Appeals stated:

N.C. [G.S.] § 31

- 36(a)(1) provides the framework for the case before us. Plaintiff [ s’ ] challenge of the purported amendments is comparable to a caveat to determine who the rightful beneficiaries should be. The plain text of the statute directs the clerk of the superior court to order the executor or administrator to freeze all distributions until the caveat is resolved. Wing , 274 N.C. App. at 153.W ING V
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¶ 45 The s ubsection cited by the Court of Appeals, N.C.G.S. § 31

- 36 (a)(1) , is in the

c hapter on “ Wills ,” Chapter 31, and entitled “Effect of caveat on estate administration

. ” N.C.G.S. § 31

- 36 (2021)

. It provides that :

W here a caveat is filed, the clerk of the superior court shall forthwith issue an order that shall apply during the pendency of the caveat to any personal representative , having the estate in charge,

. . . [t]hat there shall be no distributions of assets of the estate to any beneficiary [

. ] N.C.G.S. § 31

- 36(a). ¶ 46 Goldman Sachs argues that this is a procedural rule, and N.C.G.S. § 36C

- 1

- 112 “applies only to ‘ rules of construction

. ’ ” Goldman Sachs and d efendant beneficiaries cite the official comment to N.C.G.S. § 36C

- 1

- 112, which describes rules of construction as “specific in nature, providing guidance for resolving specific situations or construing specific terms.” N.C.G.S. § 36C

- 1

- 112 off. cmt. (20 21 ). The official comment further states that r ules of construction “ can involve the meaning to be given to particular language in the document, such as the meaning to be given to

‘ heirs ’ or ‘issue,’ ” and “address situations the donor failed to anticipate

. . . [ like] failure to anticipate the predecease of a beneficiary.” Id. ; see also Construction , Black’s Law Dictionary (11th ed. 2019) (defining construction as “ [ t ] he act or process of interpreting or explaining the meaning of a writing (usu. a constitution, statute, or other legal instrument); the ascertainment of a document’s sense in accordance with established judicial standards; INTERPRETATION ”). The North Carolina commentW ING V
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states : “ T his section is inten ded to make all rules of construction applicable to wills also applicable to trusts, including but not limited to the rules governing abatement.” N.C.G.S. § 36C

- 1

- 112 N

. C. cmt. (20 21 ). ¶ 47 Subsection 31

- 36 (a) (1) does not address the act or process of interpreting a will , whether a term or an unanticipated situation that impact s the disposition of property under the will . Therefore, N.C.G.S. § 31

- 36 (a)(1) is not applicable to trust proceedings pursuant to N.C.G.S. § 36C

- 1

- 112 of the North Carolina Uniform Trust Code. In other words, N.C.G.S. § 31

- 36 (a)(1) i s not a rule of construction. Additionally, N.C.G.S. § 31

- 36(a)(1), which requires a cessation of distributions upon the filing of a will caveat, is contrary to N.C.G.S. § 36C

- 6

- 604, which permits distributions by the trustee during a pending judicial proc eeding challenging a trust albeit subject to potential liability

. Thus, the Court of Appeals erred by relying on N.C.G.S. § 31

- 36 (a)(1) as the framework for its analysis in this trust proceeding. ¶ 48 Finally, we reach t he fundamental issue and alleged er ror by the Court of Appeals

— whether Goldman Sachs , as trustee, has a duty to pay defendant beneficiaries’ litigation expenses based on a duty to defend under the North Carolina Uniform Trust Code , specifically N.C.G.S. § 36C

- 8

- 811

. “ We review matters of statutory interpretation de novo because they present questions of law. ” In re Foreclosure of Vogler Realty, Inc. , 365 N.C. 389, 392 (2012)

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¶ 49 In this matter, the Court of Appeals concluded that Goldman Sachs, as trustee, did not “ha[ve] a duty to defe nd the purported amendments during pending litigation between purported beneficiaries , ” Wing , 274 N.C. App. at 154 , and reversed the Pay Order, id. at 1 56. Finding the reasoning of two California Court s of Appeal ’ s cases persuasive , the Court of Appeals applied the ir reasoning to this case to h o ld that because the trust was not in peril and, instead, this case involve s a dispute between rightful beneficiaries , the trustee was not required to pay attorney fees or legal costs. Id. at 15 4

– 5 5

. ¶ 50 Both Gold man Sachs and defendant beneficiaries insist that the Court of Appeals improperly relied on the two California cases. From our close analysis of the North Carolina Uniform Trust Code, its comments, and North Carolina common law, we are persuaded that t he C ourt of Appeals erred by looking to caselaw from other jurisdictions before the law of this S tate

. The Court of Appeals did not need to consider caselaw from other jurisdictions to resolve the appeal

. ¶ 51 Our legislature adopted verbatim section 811 of t he Uniform Trust Code and codified it as N.C.G.S. § 36C

- 8

- 81 1

. Compare Unif

. Tr

. Code § 811 (Unif. L. Comm’n
2000 ) ( amended 2003 ) , with N.C.G.S. § 36C

- 8

- 811. When enacting the North Carolina Uniform Trust Code in 2005, the legislature also directed that “all relevant portions of the Official Commentary to the Uniform Trust Code” be printed with the
enactments. An Act to Adopt a Revised Version of the Uniform Tr ust Code for NorthW ING V
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Carolina, S.L. 2005

- 192, § 6 , 2005 Sess. Laws 345 , 403

. The official comment to N.C.G.S. § 36C

- 8

- 811 reflects verbatim the comment to section 811 of the Uniform Trust Code. Compare Unif

. Tr

. Code § 811 cmt. , with N.C.G.S. § 36C

- 8

- 811 off. cmt. (20 21 ). ¶ 52 Specifically, N.C.G.S. § 36C

- 8

- 811 provides that : “ A trustee shall take reasonable steps to enforce claims of the trust and to defend claims against the trust .” N.C.G.S. § 3 6C

- 8

- 811 (emphas e s added). “ Trust ” is not a defined term in the North Carolina Uniform Trust Code , s ee N.C.G.S. §§ 36C

- 1

- 101 to

- 11

- 1106 , 4 and the definitions in Black’s Law Dictionary are varied as follows :

1. The right, enforceable solely in equity to the beneficial enjoyment of property to which another person holds the legal title ; a property interest held by one person (the trustee ) at the request of another (the settlor) for the benefit of a third party (the beneficiary ). • For a trust to be valid, it must involve specific property, reflect the settlor’s inte nt , and be created for a lawful purpose. The two primary types of trust are private trusts and charitable trusts (see below). 2. A fiduciary relationship regarding property and charging the person with title to the property with equitable duties to deal wi th i t for another’s benefit; the confidence placed in a trustee, together with the trustee’s obligations toward the property and the beneficiary. • A trust arises as the result of a manifestation of an intent to create it. See FIDUCIARY RELATIONSH IP
. 3. The property so held; CORPUS (1)

.

4 However, the North Carolina Uniform Trust C ode provides definitions for types of trusts. See, e.g. , N.C.G.S. § 36C

- 1

- 103(4) (defining “Charitable trust ” ).W ING V
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Trust , Black’s Law Dictionary (11th ed. 2019 ). Given these varied definitions, all of which could reasonably apply to N.C.G.S. § 36C

- 8

- 811 , the plain meaning of the term “trust” is not ascertainable by merely referencing the statutory language and a dictionary. ¶ 53 However, t he official comment to the statute states as follows: This section codifies the substance of Sections 177 and 178 of the Restatement (Second) of Trusts (1959). It may not be reasonable to enforce a claim depending upon the likelihood of recovery and the cost of suit and enforcement. It might also be reasonable to settle an action or suffer a default rather than to defend an action. See also Section 816(14) (power to pay, contest, settle, or release claims). N.C.G.S. § 36C

- 8

- 811 off. cmt. ¶ 54 Since “ trust ” is neither a defined term nor unambiguous and the comment
states that “[t]his section codifies the substance of Section [ ]

. . . 178 of the Restatement (Second) of Trusts (1959), ” we construe the trustee’s obligation “to defend claims against the trust” under N.C.G.S. § 36C

- 8

- 811 to be the equivalent to the Restatement (Second) of Trusts § 178

. T his Court routinely re ferences the official commentary to a statutory provision to discern the legislature’s intent when a statute is ambiguous

. Parsons v. Jefferson

- Pilot Corp. , 333 N.C. 420, 425 (1993); see also State v. Jones , 371 N.C. 548, 554 (2018) (“This seeming inconsistency between and among the statutory enactments at issue in the present case is readily resolved by the Official Commentary to Article 49 of the North Carolina General Statutes.”); State v.W ING V
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Capps , 374 N.C. 621, 626

– 27 (2020); Gyger v. Clement , 375 N.C. 80, 83

– 84 (2020 ). Whe n the legislature explicitly instructs the revisor of statutes to print the commentary with the statute, see § 6, 2005 Sess. Laws at 403, such reliance appears particularly appropriate. See Parsons , 333 N.C. at 425

. ¶ 55 Section 178 of the Restateme nt (Second) of Trusts states that : “ T he trustee is under a duty to the beneficiary to defend actions which may result in a loss to the
trust estate , unless under all the circumstances it is reasonable not to make such defense.” Restatement (Second) of Trus ts § 178 (Am. L. Inst. 1959) ( e mphasis added). The t rust estate is “[t] he property for which a trustee is responsible; the trust principal. ” Corpus , Black’s Law Dictionary (11th ed. 2019) ( noting “corpus” is also known as “res ; trust estate; trust fund; trust property; trust res; trust” ( emphasis omitted) ) ; see also Trust Estate , Black’s Law Dictionary (11th ed. 2019) (referring to first definition of corpus)

. ¶ 56 Another term for “trust estate” is “trust.” Corpus , Black’s Law Dictionary (11th ed. 2019)

. And one of the definitions of trust is “[t]he property so held; CORPUS (1) .” Trust , Black’s Law Dictionary (11th ed. 2019 ). Another definition of trust is “a property interest held by one person (the trustee ) at the request of another (the settlor ) for the benefit of a third party (the beneficiary ).” Trust , Black’s Law Dictionary (11th ed. 2019 ). Thus, the legislature ’ s use of the term “trust” in N.C.G.S. § 36C

- 8

- 811 isW ING V
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consistent with the substance of Restat ement (Second) of Trusts § 178 , and we construe N.C.G.S. § 36C

- 8

- 811 to maintain that consistency. ¶ 57 Restatement (Second) of Trusts § 178 is also consistent with the common law of this S tate. 5 In Belcher v. Cobb , 169 N.C. 689 (1915) , this Court, recognized the “ self

eviden t” “duty of the trustee to defend and protect the title to the trust estate and defend the action in good faith.” Id. at 693. Later, i n Chinnis v. Cobb , 210 N.C. 104 (1936) , this Court concluded that a trustee could appeal and argue the invalidity of an attachment levied on a beneficiary of a spendthrift trust

. Id. at 110. This Court stated as follows: But it is not only the right but the duty of a trustee

to protect and defend the title to the trust estate.

. . . H e holds the property under the will as trustee for the purposes expressed in the devise.

. . . In order to carry out the purposes of the trust and perform the duties imposed upon him, it is incumbent on him to preserve and protect the trust property, and f or that purpose may appear and defend the action for all purposes in this Court as well as the court below. Id. at 110

. ¶ 58 Notably, Goldman Sachs also concedes that whether a trustee has a duty to defend claims challenging the validity of a trust instrument that amends and restates a prior trust instrument is an issue of first impression in this S tate . Goldman Sach s

5 Cf. N.C.G.S. § 36C

- 1

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additionally indicates that it has “ not identified any jurisdiction applying the Uniform Trust Code, which governs North Carolina’s tr ust laws , that has addressed this precise question .” Nevertheless, Goldman Sachs asks this Court to hold that plaintiffs’ claims seeking to invalidate the Fifth Amendment to the Trust are “an attack on the validity of the trust itself” because “[n] o consul tation to other versions of that document is necessary in order to determine the parties’ rights and obligations .” Goldman Sachs cites in support of its position George Gleason Bogert’s treatise , The Law of Trusts and Trustees § 581 , as updated in November 2020

. Goldman Sachs also cites a reporter’s note to a section in the Restatement (Third) o f Trusts that relies on a Bogert h ornbook. Similarly, defendant beneficiaries contend that Goldman Sachs , as trustee , has a duty to defend the current terms of a tru st, in this case the Fifth Amendment, against all trust contests initiated pursuant to N.C.G.S. § 36C

- 6

- 604(a)

. ¶ 59 However , t he legislature stated that a trustee “ shall take reasonable steps

. . . to defend claims against the trust.” N.C.G.S. § 3 6C

- 8

- 811. It did not use the
term “trust instrument,” “terms of the trust,” “contest , ” or reference N.C.G.S. § 36C

6

- 604

. Id. “ T rust instrument” and “ [t] erms of a trust” are defined in N.C.G.S. § 36C

1

- 103. A “ [t] rust instrument” is “[a]n instrument that con tains the terms of a trust.” N.C.G.S. § 36C

- 1

- 103(21). “Terms of a trust” means “[t]he manifestation of the settlor’s intent regarding a trust’s provisions as expressed in the trust instrument orW ING V
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as established, determined, or amended by

. . . [a] judicial proceeding ” and other means set forth in the statute . N.C.G.S. § 36C

- 1

- 103(20). “ A ‘contest’ is an action to invalidate all or part of the terms of the trust or of property transfers to the trustee” according to the official comment to N.C.G.S. § 36C

- 6

- 60 4

. N.C.G.S. § 36C

- 6

- 604 off.
cmt. (2021). ¶ 60 In contrast, “trust estate” is not defined in the North Carolina Uniform Trust Code, s ee N.C.G.S. §§ 36C

- 1

- 101 to

- 11

- 1106 , and “trust” can mean “trust estate , ” Corpus , Black’s Law Dictionary (11th ed. 2019) ( identifying “trust” and “trust estate” as synonyms of “corpus” ) ; see also Trust , Black’s Law Dictionary (11th ed. 2019 ) (defining trust as the property held in trust or property and the property interest held by the trustee). T he official commentary to N.C.G.S. § 36C

- 8

- 811 also plainly restricts th e statute ’s meaning to a specific provision of the Restatement (Second) of Trust s , N.C.G.S. § 36C

- 8

- 811 off. cmt ., which limits the duty to defend to “actions which may result in a los s to the trust estate , ” Restatement (Second) of Trusts § 178 (Am. L. Inst. 1959). Not all trust contests or challenges to a trust ’s term s may result in a loss to the trust estate. ¶ 61 Moreover , since the first publication of Bogert’s t reatise , and in subsequent editions, section 581 has essentially stated as follows:

An effort to invalidate or prejudice a trust may be made in a number of different ways by one or more of several groups of parties. The settlor himself may seek to set aside the tr ust conveyance on the ground of fraud,W ING V
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undue influence, duress, or similar reason, or his successors in interest may seek a decree of invalidation for these r e ason s or because of the mental incapacity of the settlor. The creditors of the settlor may attack the trust on the ground that it was executed in fraud of them. A claim may be made that the trust violates a rule against perpetuities, a mortmain act, or similar statutory or common - law rule of policy. The beneficiaries may seek to terminate the trust pr ematurely. Creditors of a cestui may sue to reach the interest of the cestui, which may or may not be protected by spendthrift provisions. Is it the duty of the trustee to defend suits of this type which will wholly invalidate the trust or will reduce it s scope and effect? Or may the trustee stand passive? It is believed that equity imposes upon the trustee the duty of defending the integrity of the trust, if he has reasonable ground for believing that the attack is unjustified or if he is reasonably in d oubt on that subject. Where it ou gh t to be entirely clear to any person o f ordinary intelligence, after taking legal advice, that the attack is warranted and that the trust is defective and should be set aside in whole or in part, or that for other reason a defense would be futile or unnecessary, the trustee has no duty to incur expense to defend the suit. G eorge Gleason Bogert, The Law of Trusts and Trustees § 581 ( 1st ed. 1935) (footnotes omitted) ; see also George Gleason Bogert, The Law of Trusts and Tr ustees § 581 (2d ed. 1960); George Gleason Bogert, The Law of Trusts and Trustees § 581 (Rev. 2d ed. 1980) (last supplemented 2021)

. ¶ 62 Th is passage does not squarely address the situation before this Court and the trial court : a challeng e to the validity of a trust instrument that amends and restates a prior trust instrument . Instead, the passage summarizes the array of ways a trustW ING V
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may be wholly invalidated in its entirety or the trust estate may be prejudiced

. On the record and arguments before us, the challenged amendments to the Trust impact who the beneficiaries are, not the scope or effect of the trust estate and not the entire validity of the Trust. 6 Therefore, w e find the proposition stated in Bogert’s t reatise consistent with our recogniti on that whe n a party seeks to invalidate an amendment to a trust on account of the incompetency of the grantor or undue influence over the grantor, a duty to defend pursuant to N.C.G.S. § 36C

- 8

- 811 could appl y but only if such claim against the trust may r esult in a loss to the trust estate. ¶ 63 However, t he North Carolina Uniform Trust Code grants powers to trustees that are broader than duties. N.C.G.S. § 36C

- 8

- 815 off. c mt

. (2021) . As explained in the official comment to N.C.G.S. § 36C

- 8

- 815, which addresses the general powers of the trustee : A power differs from a duty. A duty imposes an

obligation or a mandatory prohibition. A power, on the other hand, is a discretion, the exercise of which is not obligatory. The existence of a power, however crea ted or granted, does not speak to the question of whether it is prudent under the circumstances to exercise the power.

6 However, we acknowledge that the revocation of the challenged amendments may result in a loss to the trust estate , but that is not before us. While defendant beneficiaries and Goldman Sachs allude to tax benefits arising from the amendment and decedent’s marriage to Sell e rs, they neither raised this as a basis for the trustee’s duty before the trial court nor did the trial court reach this issue

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N.C.G.S. § 36C

- 8

- 815 off. cmt. The North Carolina Uniform Trust Code provides that the trustee has “[a]ll powers over the trust property that an unmarried competent owner has over individually owned property,” N.C.G.S. § 36C

- 8

- 815(a)(2)(a), and may

“ defend an action, claim, or judicial proceeding in any jurisdiction to protect trust property and the trustee in the performance of the truste e’s duties , ” N.C.G.S. § 36C

8

- 816(24). ¶ 64 Such discretionary power is much broader than the trustee’s duty “to defend claims against the trust” under N.C.G.S. § 36C

- 8

- 811

. T hese provisions are broad and sufficient to permit Goldman Sachs , in its discretion and in this action , to make distributions to defendant beneficiaries for their litigation expenses and incur litigation expenses as an administrative expense of the T rust. However, since these are discretionary powers, not dut ies , in cer tain circumstances, it may be a breach of a trustee’s other duties to do so. See N.C.G.S. § 36C

- 8

- 815 (b) (“ No provision of this section shall relieve a trustee of the fiduciary duties under this Article. ”). 7 ¶ 65 Here, the trial court used one of defendant beneficiaries’ proposed order s , granted the m otions to p ay, and ordered that:

Defendant Goldman Sachs, as Trustee of the Revocable Trust

. . . shall , in the proper exercise of its business judgment, make distributions to [defendant beneficiaries] for payment for legal fees incurred by them in the above

captioned cases with respect to their defense of this matter.

7 Whether Goldman Sachs breached other duties is not before us, and thus, we do not address that question

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This Order is without prejudice to any party’s other remaining claims and defenses in these matters. ¶ 66 The trial court did not conc lude that Goldman Sachs, as trustee, had a duty to defend. The trial court instead ordered “ distributions ” to defendant beneficiaries “for payment for legal fees incurred by them ” for “ their defense of this matter.” (Emphas e s added.) In contrast, defendant beneficiaries’ other proposed order, which the trial court declined to use, included a conclu sion that Goldman Sachs had a duty to defend the Fifth Amendment as the operative trust document. Thus, we conclude that the trial court’s order only compelled Goldman Sachs , as trustee , to make distributions to defendant beneficiaries . The trial court compelled this conduct even though Goldman Sachs had knowledge of “a pending judicial proceeding contesting the validity of the trus t.” See N.C. G

. S. § 36C

- 6

- 604 (b) (1)

. ¶ 67 As such, we conclude that t he trial court acted within the scope of its jurisdiction to determine a question arising in the distribution of a trust, see N.C.G.S. § 36C

- 2

- 203(a), when presented with a request for instruction and proposed order fr om defendant beneficiaries and Goldman Sachs, see N.C.G.S. § 36C

- 2

- 201. Consistent with our holding s herein, the trial court compelled conduct permitted by the North Carolina Uniform Trust Code as a power

— at the request of Goldman Sachs, who as trustee hol ds the discretionary power to perform the requested conduct

. See N.C.G.S. §§ 36C

- 8

- 815(a)(2)(a),

- 816. And c ompetent evidence in the record supports t he trial court’s conclusion to compel this conduct

. Goldman Sachs andW ING V
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defendant beneficiaries cited and produced affidavits in support of decedent’s competency around the time of the execution of the Fifth Amendment as well as other documents in support of the m otions to p ay and their position that plaintiffs’ claims are unj ustified. Plaintiffs , in contrast, did not respond with any evidence. Thus, regardless of the standard of review applicable to our review of the trial court’s Pay Order, whether for abuse of discretion, for competent evidence, or de novo, we discern

no err or in the Pay Order justifying reversal. Therefore, we conclude that the Court of Appeals erred by reversing the Pay Order. C. Duty of Neutrality ¶ 68 Goldman Sachs also contends that the Court of Appeals erred by concluding that “Goldman Sachs has breached their duty of neutrality by deciding who the rightful beneficiaries are before pending litigation has resolved that issue.” Wing , 274 N.C. App. at 155. We agree . P laintiffs ha ve not pled that Goldman Sachs breached its duty of n eutrality, and the appealed order, the Pay Order , does not purport to resolve any such claim o r require consideration of this issue to resolve the appeal

. Therefore, w e express no opinion concerning whether a duty of neutrality exists or would im pact this matter. V. Conclusion ¶ 69 In summary, the trial court had jurisdiction and did not err by instructing Goldman Sachs , as trustee, to pay defendant beneficiaries’ litigation expenses asW ING V
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distributions in this action. Goldman Sachs had the power to in its discretion make such payments, and the record supports the trial court’s direction requiring the exercise of that power. As the trial court did not find that Goldman Sachs had a duty to defend and the record on this issue is not developed, we do not addre ss whether Goldman Sachs has a duty to defend this action, but we do hold that a duty to defend pursuant to N.C.G.S. § 36C

- 8

- 811 only arises when the action may result in a loss to the trust estate. When addressing this appeal, the Court of Appeals erred i n several
ways as addressed in this opinion . As a result, we vacate the portions of the Court of Appeals’ decision that addressed the order on the m otion to f reeze and the duty of neutrality and reverse the remainder of the decision. VACATED IN PART; REVER SED IN PART

.