Wills, Trusts, & Estate Planning Civil Remedies

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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

Timing of judgment creditor's entitled fee petition key to enforcement

In Conservatorship of McQueen the California Supreme Court decided a unique issue concerning the interpretation of Code of Civil Procedure Section 685.040. Under that statute, a judgment creditor is entitled to the reasonable...more

CERCLA Contribution and Trust Funds: A Matter for State Law

The Second Circuit Court of Appeals in New York recently held that the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), commonly known as Superfund, does not require contribution from...more

Does the settlor of a trust have standing to seek its enforcement in the courts?

As a general rule, any beneficiary of a trust would have standing to seek its enforcement in the courts. The Restatement (Third) of Trusts is sending mixed signals as to whether the settlor of a trust, qua settlor, would have...more

BuckleySandler Achieves Landmark Settlement in Navajo Nation Breach of Trust Lawsuit Against United States

WASHINGTON (June 1, 2014) — BuckleySandler LLP is proud to announce that it has obtained a $554 million settlement on behalf of its client the Navajo Nation. The settlement resolves the Nation’s landmark lawsuit alleging that...more

Life Insurance Unclaimed Property Litigation in 2014: Will Regulator Positions Withstand Judicial Scrutiny

Amidst ongoing multistate unclaimed property audits of many life insurers, and despite many regulatory settlements, the insurance industry and state regulators continue to disagree over the application of unclaimed property...more

Could it be that the Uniform Trust Code would effectively immunize the trustee of a revocable inter vivos trust from liability for...

Section 603 of the Uniform Trust Code provides that while a trust is revocable and the settlor has capacity to revoke the trust, rights of the beneficiaries, such as the equitable remaindermen, are subject to the control of,...more

Spendthrift & Discretionary Trusts in Florida: Further Analysis of Berlinger v. Casselberry

In Berlinger v. Casselberry, Case No. 2D12-6470, 6 (Fla. 2d DCA Nov. 27, 2013), the Florida Second District Court of Appeal upheld a writ of garnishment issued by a trial court against the trustee of a discretionary trust...more

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