Recent Fiduciary Cases: Spring 2008

March 18, 2008

In this update:


Hale v. Moore, 2005 CA 001895 (Kentucky Court of Appeals, January 4, 2008)

Claudia Sanders, widow of the late Colonel Sanders of Kentucky Fried Chicken fame, died in 1996 a resident of Shelby County, Kentucky, leaving a will, codicil, and revocable trust. The lawyer that drafted Mrs. Sanders’ estate planning documents, Maria Fernandez, was named as executrix under the will and was appointed by the court to serve in that capacity without objection. Wachovia Bank was the trustee under Mrs. Sanders’ revocable trust agreement.

The will provided for the payment of Mrs. Sanders’ debts, costs, and taxes, a modest specific bequest to a church, and for the remaining assets to be distributed to the revocable trust. The trust which was governed under its terms by Pennsylvania law, provided a “pour back” to the estate for the payment of debts, costs, and taxes, and for the distribution of the trust assets in twelve shares to various relatives, with the share set aside for Mrs. Sanders’ deceased daughter to be distributed to two colleges.

Mrs. Sanders’ assets included commercial and residential real property managed by a North Carolina corporation that she created. Upon Mrs. Sanders’ death, Fernandez claimed to also have taken over as CEO of the corporation until its dissolution in 2003. Fernandez and her law firm, in the course of administering Mrs. Sanders’ estate, also administered the estates of Mrs. Sanders’ sister and son and charged the expenses to Mrs. Sanders’ estate without authorization in Mrs. Sanders’ will. There were no engagement letters for any of the work done by Fernandez or her firm.

In 1999, Wachovia Bank as trustee under Mrs. Sanders’ trust agreement was prepared to distribute the trust assets, but the estate was not yet settled. Wachovia obtained an agreement of all beneficiaries to distribute the trust assets to Fernandez for distribution to the beneficiaries, to apply Pennsylvania law to the apportionment of estate taxes, and to discharge Wachovia from any further obligations as trustee.

On the federal and state estate tax returns for Mrs. Sanders’ estate, Fernandez listed her executor’s fee as $175,000. Fernandez billed only $7,227 of this to the probate estate. The remainder of the fee was billed to the trust ($50,000) and the corporation (over $110,000) for unspecified work, and Fernandez admitted doing only nominal work for these entities.

In 2000, some of the beneficiaries began expressing concerns about Fernandez’s actions, and the fifth accounting was settled by the district court over the concerns of some beneficiaries. In 2004, five of the beneficiaries expressed concerns about Fernandez’s fees, and filed exceptions to the sixth accounting with the district court objecting to the fees, objecting to the amount of the distributions to the two colleges (which were not reduced for a portion of estate taxes - unlike the shares for the individual beneficiaries which were reduced for taxes), and seeking an accounting.

Late in 2004, the district court held a hearing on the objections. Following the hearing and before a decision by the district court, the beneficiaries filed a new action in the circuit court against Fernandez. Fernandez moved to dismiss on jurisdictional grounds, which the court ultimately granted and the beneficiaries appealed.
In January of 2005, the district court approved Fernandez’s sixth accounting, approving the fees paid to Fernandez as reasonable and approving the distributions to the charities on the basis that Pennsylvania law controlled the apportionment of taxes rather than Kentucky law. Pennsylvania law governed the trust, and did not apportion tax to the charities while Kentucky law governed the probate estate, and did apportion tax to the charities. The beneficiaries filed a motion to vacate the district court’s decision on jurisdictional grounds. The district court rejected the beneficiaries’ motion and approved the seventh and final accounting filed by Fernandez. The beneficiaries filed an appeal of the district court’s decision with the circuit court.

In January of 2006, the circuit court reversed the district court and ruled that the apportionment of taxes was governed by Kentucky law, that the releases signed by the beneficiaries were void because of the failure of Fernandez to provide the beneficiaries with material facts about the releases and tax apportionment, and the taxes should have been paid “off the top” with a corresponding reduction in the shares for the colleges. The circuit court also reversed the district court’s approval of the fees paid to Fernandez finding that Fernandez had charged an excessive fee, and remanded the case to the district court for further proceedings. Fernandez appealed.

The jurisdictional appeal and the appeal of the circuit court’s decision against Fernandez were consolidated. On appeal the Kentucky Court of Appeals approved the circuit court’s jurisdiction and voided any action of the district court after the filing of the complaint with the circuit court.

The Court of Appeals affirmed the circuit court’s application of Kentucky law to the apportionment of taxes on the basis of Kentucky being Mrs. Sanders’ domicile and the Court’s conclusion that nothing in the will evidenced intent by Mrs. Sanders to give the colleges special treatment. The Court of Appeals disregarded the release signed by the beneficiaries that provided for the application of Pennsylvania law, on the basis that the taxes were paid well before the release was signed, the beneficiaries were not fully apprised of the consequences of signing the releases by either Fernandez or Wachovia, and therefore the releases were suspect.
The Court of Appeals also affirmed the circuit court’s finding that Fernandez had charged an excessive fee on the basis that Fernandez (1) based the fee on the value of the gross taxable estate rather than probate estate, contrary to the Kentucky statute, (2) took a fee far in excess of the fee allowed by statute without being able to explain why, (3) only performed ordinary and minimal tasks, (4) failed to provide an itemized bill for services, (5) outsourced most of the substantive work, (6) failed to disclose the fees paid out of the trust and the corporation to the district court, and failed to provide actual services to those entities, (7) served as both attorney and executor without permission in the will contrary to Kentucky law, and (8) improperly settled other estates and charged the costs to Mrs. Sanders’ estate.

Taubman v. U.S. Bank, 2007 Cal. App. Unpub. LEXIS 8594 (October 24, 2007)

Janice Taubman (“Mrs. Taubman”) created a revocable trust in 1990 with herself as trustee. When she died in 1999, the corporate predecessor to U.S. Bank, N.A. became trustee (there was also an individual successor co-trustee that died before the actions at issue in the lawsuit). Under the trust agreement, Mrs. Taubman’s interests in various legal entities that owned a shopping center and tourist attraction in San Diego called Seaport Village were held in a sub-trust for her daughter Anne (Anne’s Trust). Anne individually owned one of the many corporate entities involved in the operational structure of Seaport Village. Mrs. Taubman’s interest in other businesses unrelated to Seaport Village were held in a sub-trust for her son Richard.

Under the trust agreement, Mrs. Taubman named Richard and his son Wyatt as contingent beneficiaries of Anne’s Trust in the event that Anne failed to survive Mrs. Taubman by 10 years. Anne was named as special trustee of Anne’s Trust.

In 2002, Anne sued to remove and surcharge the Bank as trustee of Anne’s Trust alleging that the Bank favored Richard in the administration. In 2003, the Bank sued to suspend Anne’s powers as special trustee of Anne’s Trust alleging that Anne had concealed from the Bank and Richard a significant transaction that depleted Anne’s Trust and provided Anne with personal gain. Shortly thereafter, the Bank sued to permanently remove Anne as special trustee and to compel an accounting. Richard also sued Anne raising the same claims as the Bank.

The trial court granted the Bank’s first request and suspended Anne’s powers as special trustee. Following an eight-day trial, in September of 2003 the trial court denied Anne’s claims against the Bank and granted the Bank’s and Richard’s claims, and permanently removed Anne as special trustee for breach of fiduciary duty. The basis for the trial court’s finding of breach of fiduciary duty justifying Anne’s removal as special trustee was (1) Anne’s purchase of a debt obligation owed by one the Seaport Village entities at a 40 percent discount, (2) charging the obligor-entity interest on the full face value of the note, (3) selling a third party corporation a 50 percent interest in the note by transferring to the corporation a controlling interest in the obligor-entity as well as interests in various other Seaport Village entities, (4) arranging for the third party corporation to pay the $7.2 million purchase price to a non-trust company controlled by Anne, and (5) actively concealing the transaction from the Bank and Richard. The trial court found that this series of transactions entered into by Anne as special trustee was in breach of her fiduciary and for her personal benefit.

The trial court rejected Anne’s defense that she was the sole beneficiary of the trust because of the provision of the trust that provided Richard with an interest in the event that Anne did not survive 10 years from Mrs. Taubman’s death (which had not expired at the time of the transaction). The trial court rejected Anne’s defenses that the transaction were at the corporate level and did not concern the trust, and that the Bank’s only recourse was to file a derivative action rather than a fiduciary action, and ordered that Anne provide an accounting of her actions as special trustee including the payment of $7.2 million to Anne’s corporation.

Anne appealed her removal as special trustee and the denying of her claims to remove the Bank as trustee. In 2004, the Court of Appeals rejected Anne’s arguments and affirmed the trial court. While this first appeal was pending, Anne submitted the accounting, and the Bank and Richard objected to the accounting and sought to surcharge Anne for more than $11 million for breaches of fiduciary duty as special trustee.

Following a second eight-day trial, the trial court found Anne liable to the trust for $8.8 million, but rejected the bank’s and Richard’s request for a double surcharge for bad faith. Anne appealed, and the Bank and Richard cross-appealed on the refusal to impose the double surcharge. While the appeals were pending, the Bank and Richard filed post judgment motions to charge Anne with their attorneys’ fees and costs. The trial court awarded the Bank and Richard that part of their attorneys’ fees and costs related to remedying problems with the trust administration caused by Anne’s actions, but not for the costs of the litigation.

On appeal, the Court of Appeals affirmed the surcharge against Anne on the basis that her appeal was untimely. The Court of Appeals noted that the trial court’s factual findings concerning Anne’s breach of fiduciary duty were part of the trial court’s decision removing her as special trustee. Because Anne did not contest those findings during her appeal of that earlier decision, the Court of Appeals held that she could not appeal them in her second appeal on the surcharge award.
The Court of Appeals affirmed the trial court’s refusal to impose a double surcharge because the trial court’s finding that Anne did not act in bad faith was supported by evidence in the record. On technical grounds, the Court of Appeals affirmed most of the trial court’s surcharge against Anne for a portion of the Bank’s and Richard’s attorneys’ fees, other than charging Anne with certain expert witness fees which the Court of Appeals reversed.

Matter of Hyde, 2007 BY Slip Op 7960 (New York Supreme Court Appellate Division, October 25, 2007)

Charlotte Hyde and Nell Cunningham were the daughters of Samuel Pruyn, who founded Finch Pruyn, a large manufacturer in Glenn Falls, New York. Following their deaths, Hyde’s estate was held in several testamentary trusts, and Cunningham’s estate was held in an inter vivos trust. This case involved two Hyde trusts and the Cunningham trust, each of which was funded with large concentrations of Finch Pruyn stock. Each trust granted the trustee “absolute discretion” but contained no directions concerning the Finch Pruyn stock.

This case involved objections to accountings for a twenty-year time period filed by Glens Falls National Bank and Trust Company and an individual co-trustee for the Hyde trusts, and an accounting for more the same twenty-year period filed by Banknorth, N.A. and an individual co-trustee for the Cunningham trust.
The trust beneficiaries objected to the accountings (interestingly, the objections were only to the actions of the corporate trustees, and not to the individual co-trustees) alleging breach of fiduciary duty and seeking surcharge for failure to diversify the trust investments. The trustees moved for summary judgment to dismiss the objections, which was denied by the Surrogate’s Court. At the conclusion of a lengthy trial, the Surrogate’s Court dismissed all of the objections. The beneficiaries appealed.

On appeal, the Appellate division affirmed the dismissal of the claims against the trustees, for the following reasons:

  • With respect to one of the Hyde trusts, while the bank was purportedly appointed as trustee on June 19, 1995, the bank was not actually made aware of the appointment until 2004, and therefore the bank could not be liable for actions taken before its knowledge of the appointment.

  • With respect to the other Hyde trust, the Appellate division found that the bank made a reasonable determination that it was in the interests of the beneficiaries not to diversify the Finch Pruyn stock, after considering (1) the liquidity of the stock, (2) the fact that the corporation was closely held and with an unusual corporate structure which discouraged liquidation, (3) the lack of marketability, (4) the disinterest of the company in buying the stock, (5) the comments made in meetings with financial advisors, investment bankers, and brokerage houses that a fair price for the stock could only be obtained through sale of the entire company, (6) the general economic condition of the trust, (7) the tax consequences of the sale, (8) the needs of the beneficiaries, (9) tax costs of a sale, (10) the significant dividends paid out with respect to the stock, and (11) the indications of the settlor’s desire that the stock remain in the family.

  • Similarly, with the respect to the Cunningham trust, the Appellate division found that the bank reasonably determined it was not in the best interests of the beneficiaries to sell the stock at a discounted price merely for the sake of diversification, upon considering the lack of liquidity, the unmarketability of the stock, and the unusual corporate structure, and because the bank regularly explored the market for the stock, kept well informed of the company’s financial condition, and regularly reviewed corporate reports (the Appellate Division rejected the beneficiaries’ argument that the bank should have obtained third party reports of the company’s condition at additional costs).

Welch v. Weiner, 2007 Mich. App. LEXIS 2704 (December 4, 2007)

Alice Gustafson (“Alice”) established a trust in 1976. In 1998, Alice filed for divorce from her husband, but they reconciled and she dismissed the divorce proceedings. Alice amended her trust in 2000 to make her husband a trustee and also purportedly a partial co-settlor of the trust for all of the assets other than the “Article 5” portion of the trust. Alice died in 2003, leaving her husband as trustee.

In 2003, the husband’s attorney sent Patricia Welch a check for $50,000 drawn on the trust’s account, which was accompanied by a letter informing Patricia that she was one of the contingent trust beneficiaries and that the husband as trustee was making an advance payment to Patricia and would be doing so annually until the future legacy was fully paid.

Patricia sought additional information about the trust, but was denied a copy of the trust instrument. She then sued in 2003, seeking an accounting, a copy of the trust instrument, removal of the trustee, and for sanctions. The probate court denied her claims, and she appealed.

On appeal, the Michigan Court of Appeals reversed the probate court, and found that Patricia was entitled to a copy of the trust instrument and an accounting, on the basis that (1) the settlor had not overridden the disclosure obligations in the trust agreement, (2) the trust was irrevocable because Alice was deceased and the husband was not a settlor of the Article 5 portion of the trust that was at issue in the case, and (3) Patricia was a current beneficiary of the trust because the trustee had already made a distribution to her from the trust.

The Court of Appeals also ordered the trial court on remand (with a new probate judge) to remove the trustee for failing to disclose information to Patricia. Because the Court of Appeals did not have a copy of the trust instrument in the record, the Court of Appeals remanded with respect to Patricia’s other claims including a claim for surcharge.

J. P. Morgan Trust Company v. Siegel, 2007 Fla. App. LEXIS 14613 (September 19, 2007)

Dorothy Rautbord (“Dorothy”) created a revocable trust that, as amended, provided for her support during her lifetime and at her death for certain specific bequests and distribution of the remainder in equal shares to her surviving children. J. P. Morgan took over as trustee in 1995. Dorothy died in 2002 survived by three children.

In 2003, the bank filed an action to settle its accounts through 2002, and requested a discharge of liability and fees and costs. Two of the children objected to the accounting on the basis of lack of detail, improper distributions, and excessive attorneys’ fees. In response to discovery sent by the bank, the children filed 30 pages of detailed allegations of breach of fiduciary duty by the bank. The children also filed a petition seeking to remove the bank as Dorothy’s personal representative alleging the same breaches of fiduciary duties detailed in the response to discovery in the trust action. The trial court dismissed the petition.

In November of 2003, the trial court granted the bank partial summary judgment in the trust action, finding that the children lacked standing to challenge any trust distributions prior to their mother’s death. On appeal, the Court of Appeals reversed on the issues of standing.

In 2006, the children filed a new lawsuit against the bank. The bank did not use the trust assets to pay its attorneys’ fees in defending against this lawsuit, and reimbursed the trust for the fees it erroneously paid from the trust in connection with this lawsuit.

Later in 2006, the bank and the children entered into a stipulation whereby the bank made partial distributions to the children and agreed not to pay further attorneys’ fees from the trust without court approval. Following the stipulation, the parties each moved for partial summary judgment on the issue of whether it was proper for the bank to pay its attorneys’ fees from the trust in connection with the 2003 action filed by the bank to settle its accounts.

The trial court ruled that the children’s discovery answers should have alerted the bank to the claims by the children of breach of fiduciary duty, even though no actual pleading had been filed against the bank alleging breach of fiduciary duty. The trial court ordered the bank to contact any law firm that received fees from the trust from the date of the discovery answers forward and demand return of the fees, and reimburse the trust for any amounts that were not recovered from the law firms. The bank appealed.

On appeal, the Florida Court of Appeals noted that a 2005 statutory change provided that court approval of payment of fees is not required until an actual pleading is filed alleging breach of fiduciary duty, but that the new statute was not in effect in 2003 at the time the discovery answers were filed. The Court of Appeals therefore affirmed the trial court on the basis that the bank should have known from the discovery answers that it would face a surcharge action, and at that point should no longer have paid its attorneys’ fees from the trust without court approval.

Matter of Irene R. Winger, 2007 N.Y. Misc. LEXIS 4656 (New York County Surrogate’s Court, June 12, 2007)

Irene Winger (“Irene”) created in trust with $4 million and named Bank of New York as trustee. A year later, at age 85, Irene a man 35 years her junior. Soon thereafter, her nephew sued to be appointed as her conservator, but a non-relative was appointed. The nephew, a niece, and Irene’s husband then settled litigation (that also involved Irene’s conservator) in which they agreed to split any property that they received from Irene’s estate after her death.

The bank filed its first accounting in 1992, which was settled in 1993 by court order. In 1994, Irene died testate and left her residuary estate worth several million dollars to her husband, after several bequests to family and friends (but nothing to her niece and nephew who were Irene’s closest blood relatives).

The bank filed to settle its final accounting, and Irene’s executor filed exceptions. The nephew sought to intervene in the accounting action and raise the same objections as the executor, and additional objections based on allegations that the bank (1) permitted theft of the trust assets by Irene’s paid companion (who was beaten to death by one of Irene’s friends in Irene’s presence in 1993), (2) failed to oversee the companion’s performance, (3) failed to prevent the conservator from paying the companion excessive compensation, (4) conspired with the conservator to conceal facts, (5) was responsible for physical injury to Irene inflicted by the companion when inebriated, and (6) was responsible for Irene’s emotional distress from seeing the companion beaten to death in front of her.

The Surrogate denied the nephew’s motion to intervene on the basis that the nephew has no interest in the matter, and the executor alone may sue on behalf of the decedent. The Surrogate also noted that some of the objections raised by the nephew were resolved in the suit the nephew previously filed against the conservator and settled. The Surrogate rejected the nephew’s argument that the settlement with the husband to share in the estate proceeds gave him an interest in the estate, and stated that the nephew’s “connection to the estate is only tenuous and indirect”, and that while the settlement with the husband gave the nephew a right to share in whatever the husband ultimately receives, those rights “do not go so far as to assign to him the husband’s rights as beneficiary in the estate”. The Surrogate held that “a mere contract obligee of a beneficiary of the estate – would not even have standing to appear in an accounting for the estate, much less in an accounting for a related entity such as the trust…such decisions recognize that accountings would be threatened with needless complication and confusion if persons with remote and possibly unenforceable claims against beneficiaries were allowed to participate as parties”.

Hartman v. Walker, 2007 Va. Cir. LEXIS 212 (Charlottesville Circuit Court, 2007)

Pauline Hartman (“Mrs. Hartman”) died testate in 1991. Under her will, she established separate trusts for her son and daughter. On the death of a child, the will directed that the trust assets revert to the other child, and thereafter to Mrs. Hartman’s grandchildren. The son, the daughter, the daughter’s child, and BB&T were named as co-trustees of the son’s trust.

Each trust was funded with equal shares in two family entities, a limited partnership and a corporation. Both companies hold title to unimproved real estate, some of which generates rental income for the two entities. The daughter was general partner with control of the partnership. Although the assets held in the entities were valued at $14.5 million, the son’s trust only distributed minimal income to the son (in 2005, the son received less than $19,000 from his trust).

The son sued the other co-trustees for failing to approve measures to increase the income payments, failing to disclose offers to the partnership to purchase some of the land at a price above its appraised value, and developing partnership land at partnership expense without the son’s knowledge or consent. The son alleged that the actions of the co-trustees were taken to deprive the son of income and benefit the remaindermen, all of whom are the children of the daughter. The son sought removal of the co-trustees and surcharge in the amount of $800,000. The son also alleged failure to diversify the trust investments.

The co-trustees demurred, and argued that the trust terms permitted the co-trustees to maintain undiversified investments, they were relieved from complying with the Prudent Investor Act and the Principal and Income Act, the will authorized the co-trustees to provide the son with no income at all, and the trust assets could be maintained for the benefit of the remainder beneficiaries and at the expense of the son.

The court overruled the demurrer. The court concluded that the Prudent Investor Act and the Principal and Income Act apply to the son’s trust, and that the son alleged sufficient facts to survive demurrer. The court noted that while neither Act specifically demands that a beneficiary be paid a “reasonable income”, they do contemplate that beneficiaries will be impartially favored, and that trusts will be managed so as to fulfill the intent of the testator, “which may in fact require that a reasonable net income be provided”. The court also noted that the son was entitled to information to enable him to enforce his rights under the trust or to prevent or redress a breach of trust. The court notes that the other co-trustees may have breached their duties to the son to the extent they failed to provide the son with information about offers for partnership assets, and that while the will gives the trustees significant authority, the authority to act and the proper exercise of that authority are distinct considerations.

McGuireWoods Fiduciary Advisory Services

McGuireWoods Fiduciary Advisory Services assists financial institutions in a wide array of areas in which questions or concerns may arise. This includes advising corporate trustees on how to avoid litigation before it arises and how to address litigation when it does arise.

For further information on the recent cases cited above or McGuireWoods Fiduciary Advisory Services, please contact our lawyers.

Subscribe
Back to top