September 14th, 2012
July 9th, 2012
Most grantors understand that their trustee shouldn’t have a court looking over its shoulder every time it exercises a discretionary power. That’s why trustees are granted discretionary powers.
Despite a grantor’s broad grant of authority to a trustee, however, trustees often find themselves embroiled in litigation over the exercise of a discretionary power, particularly with respect to discretionary distributions.
In Thompson v. Anthony (unpublished), in the context of an unjust enrichment claim, the Appeals Court of Massachusetts considered the implication of a trust provision giving the trustees “absolute discretion” over distributions. (more…)
November 11th, 2011
When individual fiduciaries are found to have breached their fiduciary duties, they are often found to have received some help. Many times a spouse, lover, or business partner is seen lurking in the wings, aiding and abetting the breach of fiduciary duty. From an aggrieved beneficiary’s or successor fiduciary’s perspective, it’s imperative to get that joint-wrongdoer brought into court, where he or she can be held to account for the wrongdoing and – if there’s a recovery to be had – reimburse the estate or trust for damages. In other words, a person cannot be held to account unless he or she is actually a party to the litigation.
In Estate of Brown, the Superior Court of Pennsylvania, decided that the Court of Common Pleas of Delaware County exceeded its authority when it imposed a surcharge on Kenneth Pearl, who was not a party to the underlying proceeding. (more…)