Benge v. Roberts: But an enforceable exculpatory clause in a trust should not always be the last word

Charles E. Rounds, Jr.
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In Benge v. Roberts, No. 03-19-00719-CV, 2020 Tex. App. LEXIS 6335 (Tex. App.—Austin August 12, 2020), inception trustee allegedly commits breach of trust and dies. Successor trustees allegedly participated in breach. Successors decline to bring an action against inception trustee’s estate. Trust’s exculpatory clause provides that “no successor Trustee shall have…any duty…or liability whatever for acts, defaults, or omissions of any predecessor Trustee, but successor Trustee shall be liable only for its own acts and defaults…” Beneficiary brings removal action against successors. Invoking exculpatory clause court denies relief. But a knowing participation in a prior trustee’s breach by his successor would be an independent wrong perpetrated by the successor. See Loring and Rounds: A Trustee’s Handbook §7.2.9 (2020), which is reproduced below in its entirety.

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