Civil Remedies Wills, Trusts, & Estate Planning

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IRS Tax Liens and Discretionary Trust Interests - Part 2

In April, I wrote how a U.S. District Court held that a beneficiary’s discretionary interest could be liened by the IRS for tax liabilities of the beneficiary. The interest was “halfway” between a purely discretionary...more

Court Affirms Finding Of Informal Fiduciary Relationship Between Step-Mother and Step-Son Based On Decision To Not Resuscitate...

In Shearer v. Shearer, Corrine and John were married from 1990 until 2008. No. 12-14-00302-CV, 2016 Tex. App. LEXIS 5685 (Tex. App.—Tyler May 27, 2016, no pet. history). John became ill in 2009 and was admitted to a hospital...more

Sole interest or best interest: Equity's traditional default loyalty principle is under attack

Some in academia have been advocating that trustees generally be held to a best-interest-of-beneficiary default standard rather than the traditional and more rigorous sole-interest-of-beneficiary default standard. See Loring...more

Missouri Bank Hit for Punitive Damages & Found Liable for Fiduciary’s Misappropriation of Funds

In Delarosa v. Farmer's State Bank, the Missouri Court of Appeals, W.D., expounded upon the duty imposed upon Missouri Banks under § 469.270 of the Missouri's Uniform Fiduciaries Law ("UFL"). Specifically, the court addressed...more

Misconduct Remedies Against an Agent Under a Power of Attorney

In a prior blog post, I discussed the duties of an agent under a power of attorney. In this blog post, I discuss the remedies that people have against an agent under a power of attorney when the agent commits misconduct....more

Supreme Court Decision Establishes New Law Concerning The Rights Of Trustees In Rhode Island

In a case of first impression, the Rhode Island Supreme Court recognized a statutory right for trustees to recover their attorneys’ fees when a trust beneficiary refuses, without any basis, to release the trustee of his or...more

Appellate Court Notes

Appellate Court Advance Release Opinions: AC36842 - Antonucci v. Antonucci - In this divorce action, the parties had been married for twenty-five years and had two adult children, and had comparable incomes of about...more

T&E Litigation Newsletter- April 2016

On March 25, the First Circuit Court of Appeals issued a ruling in a breach of fiduciary duty case that turns, in part, on an analysis of the Supreme Judicial Court’s 2014 decision on damages in the widely-discussed matter of...more

Asbestos Alert: Asbestos Bankruptcy Trusts and Legislation

When asbestos litigation became extremely costly to defend, to settle and to pay judgments, companies began filing for protection under the Bankruptcy laws. In the three decades since Johns Manville and UNR Industries filed...more

Appellate Court Notes

Appellate Court Advance Release Opinions: AC38454 - In re Daniel N. AC36701 - State v. Adams - AC36701 Dissent - State v. Adams - AC37362 - Deutsche Bank National Trust Co. v. Thompson...more

Is there a practical difference between Equitable Deviation and Cy Pres when it comes to seeking modification under the Uniform...

Assume an income-only charitable trust with the following administrative term: The trustee may only invest in “insured bank accounts and government securities.” Section 412(b) of the Uniform Trust Code (UTC) provides that a...more

Defence & Indemnity - February 2016: V. Surety and Bond Issues: The relationship between trust and lien claims under Provincial...

Stuart Olson Dominion Construction Ltd. v. Structal Heavy Steel, 2015 SCC 43, per Rothstein, J. - I. FACTS AND ISSUES - Stuart Olson Dominion Construction Ltd. (“Dominion”) was the general contractor of a football...more

Another Court Holds That Texas Has Not Recognized A Tortious Interference With Inheritance Claim

In Anderson v. Archer, the trial court’s judgment awarded the plaintiffs $2.5 million in damages based on a tortious interference with inheritance claim. No. 03-13-00790-CV, 2016 Tex. App. LEXIS 2165 (Tex. App.—Austin March...more

May a trustee with discretionary authority to make principal distributions ever decant for the sole purpose of increasing...

The Uniform Trust Code requires that the trustee notify the qualified beneficiaries, usually the current beneficiaries and presumptive remaindermen, in advance of any change in the method or rate of the trustee’s...more

Fiduciaries And Beneficiaries Should Be Aware Of Criminal Statutes

There are several criminal statutes that implicate fiduciary activities in Texas that are not well-known: misappropriation of fiduciary property and financial exploitation of the elderly. Though these may be similar in some...more

Court Granted Summary Judgment For A Trustee On A Fiduciary Breach Claim Arising From Conflict-Of-Interest and Diversification...

In Adams v. Regions Bank, beneficiaries sued a trustee for multiple claims, including breach of fiduciary duty, arising from the trustee’s seizure of collateral owned by the trust. 2016 U.S. Dist. LEXIS 1027 (S.D. Miss....more

T&E Litigation Newsletter- January 2016

The last quarter of 2015 produced two interesting decisions from the Appeals Court. In Brady v. Citizens Union Savings Bank, 88 Mass. App. Ct. 416 (2015), the Court addressed whether legal fees and costs already paid to...more

The challenge of maintaining the privacy of a non-testamentary discretionary trust with multiple permissible beneficiaries

Assume X is an innocent discretionary beneficiary of an irrevocable non-testamentary trust with multiple permissible beneficiaries (the “trust”). Y is a not-so-innocent co-beneficiary, that is to say he has not been paying...more

Happy Birthday To You: Blow the Candles Out

On two previous occasions, I wrote about the court battle and decision regarding the copyright status of the lyrics to the song, Happy Birthday to You. As noted in my September 2015 post, the U.S. District Court in California...more

A permissible beneficiary's equitable property interest under an irrevocable discretionary trust is contingent, not vested, the...

A permissible beneficiary’s equitable property interest under a discretionary trust is contingent, not vested. The critical condition precedent that renders the interest contingent is that the trustee must exercise his...more

AZ Court of Appeals Broadly Interprets Persons Entitled to Compensation From Arizona Residential Contractors’ Recovery Fund

It’s not just for homeowners anymore – Arizona Court of Appeals decides a resident of property owned by his trust may still receive compensation from the Arizona Residential Contractors’ Recovery Fund. A recent Arizona...more

The Crummey trust: Keeping both the IRS and the creditors at bay is taking some fancy footwork

Since Crummey v. Commissioner was decided in 1968, the IRS has been making life difficult for the settlors of Crummey trusts. Only recently the parties again skirmished, this time over whether an in terrorem clause in the...more

Locke Lord QuickStudy: The Supreme Court Considers “Fees For Fees”

Lawyers in probate and fiduciary matters, and in bankruptcy and receivership matters, are frequently entitled to seek payment of their fees from a corpus of trust or estate funds. Unlike in employment litigation and civil...more

Debtor-trustees can run but they can’t hide behind the Fifth Amendment

Judgment debtors often try to use the Fifth Amendment’s privilege against self-incrimination to avoid post-judgment discovery of their assets and income. However, the U.S. District Court for the Eastern District of Missouri...more

The Massachusetts Uniform Trust Code: Context, Content, and Critique

The law review article "The Massachusetts Uniform Trust Code: Context, Content and Critique," 96 Mass. L. Rev. 27 (2014), co-authored by Courtney J. Maloney and Charles E. Rounds, Jr., contains a detailed discussion of the...more

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