ALI-ABA Course of Study Representing Estate and Trust Beneficiaries and Fiduciaries July 17-18, 2008 San Francisco, California

Transcription

1 43 ALI-ABA Course of Study Representing Estate and Trust Beneficiaries and Fiduciaries July 17-18, 2008 San Francisco, California Case Law Under the Uniform Trust Code By David M. English University of Missouri-Columbia School of Law Columbia, Missouri With the assistance of Ellen Bennett 3rd-Year Student University of Missouri School of Law Copyright 2008.

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3 45 TABLE OF CASES Definitions (Section 103) In re Betty G. Weldon G. Revocable Trust, 231 S.W.3d 158 (Mo. Ct. App. 2007) In re Trust Created by Isrik, 741 N.W.2d 638 (Neb. 2007) Jurisdiction (Sections ) In re Estate of Alexis, 744 N.W.2d 514 (Neb. Ct. App. 2008) Cundall v. US Bank, 882 N.E. 2d 481 (Ohio Ct. App. 2007) Creation of Trusts (Section 401) Charitable Trust Enforcement (Section 405 (c)) Hicks v. Dowd, 157 P.3d 914 (Wyo. 2007) Trust Termination and Modification (Sections ) In re Estate of Somers, 89 P.3d 898 (Kan. 2004) In re Harris Testamentary Trust, 69 P.3d 1109 (Kan. 2003) City of Augusta v. Attorney General, 943 A. 2d 582 (Me. 2008) In re Estate of Schults, 2008 WL (Tenn. 2/20/2008) In re Trust Created by Isrik, 741 N.W.2d 638 (Neb. 2007) Creditor Claims (Article 5) Booth v. Booth, 134 P.3d 1151 (Utah Ct. App. 2006) In re Hilgers, 371 B.R. 465 (10th Cir. Bank. App. 2007), affirmed, 2008 WL (10th Cir. 5/20/2008) Sowers v. Luginbill, 2008 WL (Ohio Ct. App. 3/31/2008) Pohlmann v. Nebraska Dept. HHS, 710 N.W.2d 639 (Neb. 2006) Revocable Trusts (Article 6) In re Trust Created by Isrik, 741 N.W.2d 638 (Neb. 2007) Successor Trustees (Section 704) Butt v. Bank of America, 477 F.3d 1171 (10th Cir. 2007) Trustee Removal (Section 706) In re Wells Revocable Trust, 734 N.W. 2d 323 (Neb. 2007)

4 46 Reasonable Compensation (Section 708) Lyons ex. rel. Lawing v. Holder, 163 P.3d 343 (Kan. Ct. App. 2007) Duty of Loyalty (Section 802) In re Trust Created by Inman, 693 N.W. 2d 514 (Neb. 2005) Lyons ex. rel. Lawing v. Holder, 163 P.3d 343 (Kan. Ct. App. 2007) In re Betty G. Weldon G. Revocable Trust, 231 S.W.3d 158 (Mo. Ct. App. 2007) Attorneys Fees (Section 1004) In re Trust of Rosenberg, 727 N.W. 2d 430 (Neb. 2007) Retroactivity (Section 1106) Honsinger v. UMB Bank, NA, 2007 WL (Mo. Ct. App. 12/4/07) In re Roman Catholic Bishop of Portland, 345 B. R. 686 (D.Ore. 2006) In re Trust Created by Inman, 693 N.W. 2d 514 (Neb. 2005) In re Wells Revocable Trust, 734 N.W. 2d 323 (Neb. 2007) Butt v. Bank of America, 477 F.3d 1171 (10th Cir. 2007)

5 47 Case Law Under the Uniform Trust Code David M. English With the Assistance of: Ellen Bennett The Uniform Trust Code ( UTC ), which was approved by the Uniform Law Commissioners in 2000, is the first effort by the Uniform Law Commissioners to provide the states with a comprehensive model for codifying their law on trusts. A copy of the UTC, together with over 100 pages of official comments, can be accessed through the Commissioners' website, For detailed analyses of the UTC, see David M. English, The Uniform Trust Code (2000): Significant Provisions and Policy Issues, 67 Mo. L. Rev. 143 (2002); and David M. English & Robert Whitman, Fiduciary Accounting and Trust Administration Guide, ALI-ABA (2d ed. 2008). The UTC has been enacted to date in twenty-one jurisdictions, and is under consideration for enactment in fourteen other states. A list of the twenty-one enactments is attached as Appendix A. With twenty-one enactments, the courts are beginning to interpret and apply the UTC in resolving disputes. Discussed below, in UTC section number order, are reported appellate decisions citing and applying the UTC. There are few surprises. The courts are by and large applying the UTC in a straight forward manner. DEFINITIONS (Section 103) Section 103 contains definitions used throughout the Code. Among these definitions are the terms qualified beneficiary and terms of the trust. A qualified beneficiary has more rights than do other beneficiaries or non-beneficiaries. Terms of the trust includes not only the words on the page considered in isolation but also the words on the page as informed by certain extrinsic evidence. Rodriquez-Tocker and Weldon consider the meaning of qualified beneficiary. Isrik deals with the interpretation of terms of the trust. The widow of the settlor brought an action against the trustee, the brother of her deceased husband, seeking to remove the trustee as well as to subject the assets of her 1