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Trust Enforcement

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Trust Enforcement. Procedural Matters. Standing to enforce. Must be “interested person” Beneficiary Trustee Attorney general (charitable trusts) Others affected by the trust?. Necessary Parties. Must determine under state law the parties who MUST be involved with the lawsuit. - PowerPoint PPT Presentation

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Page 1: Trust Enforcement

Trust Enforcement

Page 2: Trust Enforcement

Procedural Matters

Page 3: Trust Enforcement

Standing to enforce

Must be “interested person” Beneficiary Trustee Attorney general (charitable trusts) Others affected by the trust?

Page 4: Trust Enforcement

Necessary Parties

Must determine under state law the parties who MUST be involved with the lawsuit.

Note that you may wish to involve other parties to get them bound to the judgment.

Page 5: Trust Enforcement

Jurisdiction

Must bring lawsuit in a court which has jurisdiction over the trust.

Inter vivos vs. testamentary? Amount involved? Court system in state Court system in county

Page 6: Trust Enforcement

Venue

Must bring lawsuit in county with proper venue. County of trustee’s residence? County of situs of trust administration? County of beneficiary’s residence? County where breach occurred? Different for individual and corporate

trustees? Different for multiple trustees?

Page 7: Trust Enforcement

Virtual Representation

Can an order binding a party bind non-parties? Bind guardian, bind ward (minor or

incompetent)? Bind parent, bind minor child? Bind person with substantially

similar interest to a party if no conflict of interest.

Page 8: Trust Enforcement

Remedies Against Trustee

Page 9: Trust Enforcement

1. Money Damages (trustee not in breach)Any profit through or arising out

of the administration of the trust.

Exception for trustee’s compensation

Page 10: Trust Enforcement

1. Money Damages (trustee in breach)1. Lost value to trust

Causation required

No requirement that trustee personally benefited

Page 11: Trust Enforcement

1. Money Damages (trustee in breach)2. Profit made by trustee

Causation required

No requirement that trust have suffered a loss

Page 12: Trust Enforcement

1. Money Damages (trustee in breach)3. Lost profits

Causation required

Difficult to show

Page 13: Trust Enforcement

1. Money Damages (trustee in breach)4. Punitive damages

“[A]n intentional breach of a fiduciary duty is a tort justifying the award of exemplary damages.”

Page 14: Trust Enforcement

2. Remove trustee

Typical grounds: Embezzlement Mismanagement Trustee becomes incompetent Trustee becomes insolvent For other cause, in the discretion of

the court

Page 15: Trust Enforcement

3. Decree to carry out the trust

Page 16: Trust Enforcement

4. Injunction

Used if trustee threatens to commit a breach of trust.

If trustee does not obey, punishable as contempt.

Page 17: Trust Enforcement

5. Receivership

Used when court fears trustee will not obey injunction.

“Receivership is an extraordinary harsh remedy and one that courts are particularly loathe to utilize.”

Page 18: Trust Enforcement

6. Require or increase bond

Page 19: Trust Enforcement

7. Declaratory Judgment

Court may determine any question arising during the administration of a trust.

Page 20: Trust Enforcement

8. Award Attorney Fees

Depends on state law

Page 21: Trust Enforcement

9. Criminal Sanctions

Page 22: Trust Enforcement

10. Liability for acts of prior trustee 1. Knowledge

New trustee knows (subjective) New trustee should know (objective)

Plus

2. Improper Conduct e.g., not sue prior trustee

Page 23: Trust Enforcement

Remedies AgainstTrust Property

Page 24: Trust Enforcement

1. Tracing

Goal = recover actual trust property from trustee or non-BFP.

Double recovery (money and property) not allowed.

What is the key benefit of the tracing remedy?

Page 25: Trust Enforcement

Tracing into Commingled Account

Trustee’s $

Trust’s $ Acc’t Balance

Opening Balance (that is, before Trustee turns evil)

500 0 500

Page 26: Trust Enforcement

Tracing into Commingled Account

Trustee’s $

Trust’s $ Acc’t Balance

Opening Balance 500 0 500

Trustee embezzles $300

500 300 800

Page 27: Trust Enforcement

Tracing into Commingled Account

Trustee’s $

Trust’s $ Acc’t Balance

Opening Balance 500 0 500

Trustee embezzles $300

500 300 800

Trustee withdraws $400

100 300 400

Page 28: Trust Enforcement

Tracing into Commingled Account

Trustee’s $

Trust’s $ Acc’t Balance

Opening Balance 500 0 500

Trustee embezzles $300

500 300 800

Trustee withdraws $400

100 300 400

Trustee withdraws $300

0 100 100

Page 29: Trust Enforcement

Tracing into Commingled Account

Trustee’s $

Trust’s $ Acc’t Balance

Opening Balance 500 0 500

Trustee embezzles $300

500 300 800

Trustee withdraws $400

100 300 400

Trustee withdraws $300

0 100 100

Trustee deposits income tax refund of $600

600 100 700

Page 30: Trust Enforcement

2. Subrogation

Trust Propert

y

1. Trusteeembezzles $1,000

2. Trustee uses money to pay secured/priority creditor

Trustee’s Secured/Priority Creditor

3. Beneficiary is subrogated to rights of “paid off” creditor

4. B uses rights of creditor against Trustee and Trustee’s other creditors

Page 31: Trust Enforcement

3. Marshaling

A creditor with the right to recover from several funds/items, must first resort to fund/item not subject to the rights of another creditor who has recourse to only one of the funds/items.

Page 32: Trust Enforcement

3. Marshaling

Example Trustee personally owns two assets:

Asset A = $10,000 Asset B = $6,000

Beneficiary has claim for $5,000 against Asset A via subrogation due to Trustee’s embezzlement; no claim against Asset B

Creditor has priority claim against both assets totaling $10,000.

Page 33: Trust Enforcement

Remedies Against Beneficiary

Page 34: Trust Enforcement

1. Misappropriation

Beneficiary has misappropriated or otherwise wrongfully dealt with trust property.

Page 35: Trust Enforcement

2. Involved with breach

Consented to breach

Participated in breach

Agreed to be liable for trustee’s breach

Page 36: Trust Enforcement

3. Failure to repay loan or advance

Page 37: Trust Enforcement

4. Failure to repay excess distribution

Page 38: Trust Enforcement

5. Breach of contract to contribute to trustE.g., beneficiary promises to add

his/her own property to the trust and then fails to do so.

Page 39: Trust Enforcement

Causes of ActionsAgainst Third Parties

Page 40: Trust Enforcement

Trustee may sue others:

Party who breaches contract with trust.

Tortfeasor who damages trust property.

Etc.

Page 41: Trust Enforcement

Barring of Remedies

Page 42: Trust Enforcement

1. Settlor’s approval in trust

The settlor may waive anything except if:

1. Illegal 2. Against public policy 3. Not waivable under state trust

law

Page 43: Trust Enforcement

2. Release by beneficiaries

Requirements for valid release:

Legal capacity Full information Written Not under threat (e.g., “no money

unless you sign”)

Page 44: Trust Enforcement

3. Court decree

The “last hope”

Page 45: Trust Enforcement

4. Statute of Limitations

Typically, does not run from date of breach.

Does discovery rule apply?

Page 46: Trust Enforcement

5. Laches

Unreasonable delay in asserting rights to disadvantage of defendant

E.g., a good faith change in position.