We know that very few cases actually end up making it to trial.  Some reports put the number of cases that settle or that are dismissed before trial around 97 percent.  Many of those that settle likely settled as a result of court-ordered mediation.  As fiduciaries find themselves increasingly the target of litigation, here’s a word of caution out of Florida about the scope of releases in settlement agreements and an admonition about knowing exactly what it is you’ve agreed to.

The trustee of the Julian Marie Breslow Revocable Trust and Pompano Masonry Corporation participated in a court-ordered mediation with Joseph Anastasi, they reached a settlement, and they executed a mediation agreement.  As part of that settlement, the Breslow Trust and Pompano agreed that their release of claims against Anastasi extended to Anastasi’s wife and children.

After the settlement was finalized, the trustee

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?

A New Jersey trial court in In the Matter of the Estate of Lillian A. Hogan (not for publication) provides some clues. 

A trustee‘s intent is an awfully important thing, but for some reason it often gets forgotten or ignored by courts, lawyers, and litigants.  An area in which the trustee’s intent and the four corners of the trust instrument may be most at risk is when the parties in trust litigation start hammering out a settlement agreement.  What deference is given the trust instrument when the parties settle trust litigation?

In In re the Matter of the Frank J. Rekucki, Sr. Revocable Trust under agreement dated September 8, 1997 (unpublished), the Court of Appeals of Minnesota answered that question under Minnesota law: a lot.

Here’s an interesting case out of Missouri last week in which the court of appeals determined that the trial court flat out got the reasoning for its decision wrong, but nevertheless reached the correct result.  In Banks v. Central Trust and Investment Co., a party alleged that he just “found” an amendment to a trust and asked the court to determine its validity.  The trial court dismissed the case on the basis of judicial estoppel.  The court of appeals determined that judicial estoppel didn’t apply, but the trial court was still correct in dismissing the case.  Let’s see why.