Trust BCLP

Trust BCLP

settlement agreements

Main Content

Personal Representative Should Have Been Removed For Conflict Of Interest

September 16, 2015

Authors

Luke Lantta

Personal Representative Should Have Been Removed For Conflict Of Interest

September 16, 2015

by: Luke Lantta

It’s not often that a personal representative asks a court to remove her.  It’s probably less often that a trial court refuses to remove a personal representative who asks to be removed.  But, that was the situation before the Court of Appeals of Wisconsin in Rapp v. Weller.  The appellate court, however, ultimately decided that the personal representative should be removed for an unmanageable conflict of interest.  What was the conflict of interest?

The personal representative had conflicts stemming from her fiduciary duties to the estate she represented and her personal interest as an heir of that same estate.  Laura Rapp had been appointed as personal representative for her brother Laurence Berg’s estate.  She participated in a mediation and signed a settlement agreement on the estate’s behalf.

Read More

Equity Will Not Interfere With Plain Language Of Trust Instrument And Trust Settlement Agreement

August 6, 2013

Authors

Luke Lantta

Equity Will Not Interfere With Plain Language Of Trust Instrument And Trust Settlement Agreement

August 6, 2013

by: Luke Lantta

Just how controlling is a trust instrument?  Even though a court may have the equitable power to modify a trust instrument or trust settlement agreement, the Court of Appeals of Michigan‘s opinion in In re George W. Scheer Inter-Vivos Trust reminds us of just how reluctant a court may be to allow equity to interfere with the plain language of a trust.

Read More

Jurisdiction To Enter Contempt Order In Fiduciary Dispute

July 9, 2013

Authors

Luke Lantta

Jurisdiction To Enter Contempt Order In Fiduciary Dispute

July 9, 2013

by: Luke Lantta

Settlement agreements settling trust, estate or probate disputes often contain language reciting that the trial court that heard the case retains jurisdiction to enforce an order approving the settlement agreement.  In Montgomery v. Morris, however, the Georgia Court of Appeals raised questions about the scope of such provisions in Georgia.

Read More

Consent Order Barred Aggrieved Party’s Breach Of Fiduciary Duty And Fraud Claims Against Co-Executors

March 11, 2013

Authors

Luke Lantta

Consent Order Barred Aggrieved Party’s Breach Of Fiduciary Duty And Fraud Claims Against Co-Executors

March 11, 2013

by: Luke Lantta

Sometimes parties have a hard time letting go of trusts and estates litigation even after that litigation has been settled.  For example, we’ve seen trustees sanctioned for failing to sign releases contemplated by settlement agreements.  We also often see settlement regret where a party tries to set aside or ‘undo’ a settlement.  You’re probably more likely to see post-settlement disputes where, as part of a settlement, the parties agree to undertake some other obligations rather than just ‘walking away.’  Often, in estate litigation, those other obligations involve the transfer of property.

In Haney v. Camp, the Georgia Court of Appeals considered questions involving co-executors’ claims for attorneys’ fees in connection with enforcement of a consent order.  The Georgia appellate court’s opinion largely involved various state law legal standards for awarding attorney’s fees.  For us, we’re more interested in the underlying estate litigation

Read More

What Is An “Unforeseen Circumstance” That Might Permit Trust Termination?

January 29, 2013

Authors

Luke Lantta

What Is An “Unforeseen Circumstance” That Might Permit Trust Termination?

January 29, 2013

by: Luke Lantta

Last year we delved into some of the problems associated with trust termination.  And we learned that some jurisdictions, like Maine, abolished the presumption that a spendthrift provision is a material purpose of a trust.  Therefore, in states like Maine, a spendthrift clause may not necessarily prohibit the termination of a trust.

Today, we turn to Arkansas, a state that – unlike Maine – has codified the common law presumption that “[a] spendthrift provision in the terms of the trust is presumed to constitute a material purpose of the trust.”  Ark. Code Ann. § 28-73-411(c).  But, that’s not our focus today.  Today, we want to look at what type of situation might permit termination of a trust when a statute permits trust termination where “the trust’s purposes, as expressed in or implied by the circumstances surrounding the trust, as a result of circumstances not foreseen to the

Read More

What Happens When Your Client Regrets Settling A Probate Matter?

August 23, 2012

Authors

Luke Lantta

What Happens When Your Client Regrets Settling A Probate Matter?

August 23, 2012

by: Luke Lantta

Settlement regret.

A lot of litigants end up getting it, especially in such emotionally-charged litigation as probate litigation.  Most of the time those litigants just end up expressing those feelings of regret to their lawyers.  Sometimes they try to take it further.  How can the regretful party’s lawyer see it coming and how can that lawyer guard against it?

New Jersey trial court in In the Matter of the Estate of Lillian A. Hogan (not for publication) provides some clues. 

Read More

Do You Really Want Your Trust Instrument To Prohibit Judicial Modification?

February 15, 2012

Authors

Luke Lantta

Do You Really Want Your Trust Instrument To Prohibit Judicial Modification?

February 15, 2012

by: Luke Lantta

This week, let’s take a look at another case from Florida.  You see a lot of trust instruments that ‘require’ a “corporate co-trustee.”  There are a lot of good reasons why the grantor may have wanted a corporate co-trustee to serve with a family member, friend, or other co-trustee.

Then again, as time goes by, a corporate co-trustee may no longer make a lot of sense.  It could be that the trust has been substantially administered or that the corpus is so small that a corporate trustee’s fee schedule just doesn’t work.  That’s when the beneficiaries and trustees usually get together and go to court to have the trust modified to permit the corporate trustee’s resignation and have the trust modified either to allow a single trustee or to allow an individual to serve as co-trustee.  These things are often done by consent order, which the

Read More

If You Want To Bind Heirs To An Agreement, Then You Better Say So

November 16, 2011

Authors

Luke Lantta

If You Want To Bind Heirs To An Agreement, Then You Better Say So

November 16, 2011

by: Luke Lantta

In contracts and settlement agreements, we usually see boilerplate defining an individual party as including that individual party’s “heirs, personal representatives, agents, transferees, servants, employees, attorneys, representatives, successors and assigns” or something similar. 

You also regularly see a paragraph stating something like “this Agreement shall be binding upon the undersigned and their respective heirs, executors, administrators, successors, transferees, assigns, agents and attorneys.”

So, how important is this boilerplate?  According to the Missouri Court of Appeals in Anderson v. Parker, very important.

Read More
The attorneys of Bryan Cave Leighton Paisner make this site available to you only for the educational purposes of imparting general information and a general understanding of the law. This site does not offer specific legal advice. Your use of this site does not create an attorney-client relationship between you and Bryan Cave LLP or any of its attorneys. Do not use this site as a substitute for specific legal advice from a licensed attorney. Much of the information on this site is based upon preliminary discussions in the absence of definitive advice or policy statements and therefore may change as soon as more definitive advice is available. Please review our full disclaimer.