Civil Remedies Wills, Trusts, & Estate Planning

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T&E Litigation Newsletter- 4/27/16

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- 1/5/16

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

(US) Unamicable Split: Inherited Real Property and the Texas Forced Sale Statute

When multiple people inherit an interest in real property, each is responsible for their share of the ad valorem taxes of the property. What happens if one party fails to meet its tax obligations? What recourse is available...more

U.S. Bank Reaches $6 Million Settlement of Claims for Breach of RMBS Trustee Duties

On December 17, the parties in Oklahoma Police Pension and Retirement System v. U.S. Bank, N.A., No. 11-cv-8066 (S.D.N.Y.) asked the court to approve a $6 million settlement of class action claims asserted against U.S. Bank...more

T&E Litigation Newsletter - January 2015

As 2014 came to a close, Massachusetts state and federal courts issued decisions concerning a number of issues of interest to estate planning attorneys and probate litigation attorneys, including testamentary capacity,...more

The liability of a trustee who honors a fraudulent exercise of a power of appointment

A trustee who transfers trust property to a permissible appointee for the benefit of an impermissible appointee such that the fraud on a special power doctrine is implicated incurs no liability as a consequence, unless the...more

11th Circuit Certifies Questions Regarding Insured’s Breach of Consent to Settle Clause

In its recent decision in Piedmont Office Realty Trust v. XL Specialty Ins. Co., 2014 U.S. App. LEXIS 20141 (11th Cir. Oct. 21, 2014), the United States Court of Appeals for the Eleventh Circuit, applying Georgia law, elected...more

S.D.N.Y. Judge Permits Novel Theory And Allows SEC To Use Unpaid Taxes As Measure Of Disgorgement In Securities Fraud Case

In a case against Dallas billionaires Sam Wyly and the estate of his late brother, Charles, Judge Shira Scheindlin of the U.S. District Court for the Southern District of New York agreed with the U.S. Securities and Exchange...more

Alaska Supreme Court Opens the Door for Alternative Theory in Public Trust Litigation

As this blog has discussed on several prior occasions, Our Children’s Trust, an Oregon public interest group, has coordinated lawsuits in numerous states seeking to apply the public trust doctrine to the atmosphere. While...more

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