An improper purpose in the exercise of a trustee's power of exclusion need not be the dominant purpose to constitute a fraud on the power; it suffices that it was an actuating or operative purpose without which the appointment would not have been made. However, a party alleging improper purpose bears the burden of proof and runs a significant forensic risk if it fails to cross-examine the trustee's decision-maker on the alleged improper motivation, even where the trustee has been given notice of the allegation. No adverse inference of improper purpose can be drawn from a trustee's non-disclosure of reasons, as a discretionary trustee is not obliged to disclose reasons.
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