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The Michigan Court of Appeals recently issued an interesting ruling regarding the ability of a litigant in probate litigation to recover attorney fees from the trust in dispute, even if all parties agree to such payment. In...more
David F. Johnson presented his paper titled “Trustee’s Ability To Retain And Compensate Attorneys In Texas” to the Texas State Bar’s 48th Annual Advanced Estate Planning and Probate Course on June 13, 2024, in Houston, Texas....more
On May 30, 2024, the Supreme Court of New Jersey issued its decision in Boyle v. Huff, holding that an indemnification clause cannot apply to first-party claims unless the parties include specific language expanding the...more
In Mendell v. Scott, a decedent had a trust that named him as primary beneficiary, and upon his death, the trust would continue for a niece provided that she did not commit a prohibited act. No. 01-20-00578-CV, 2023 Tex. App....more
Litigation is often expensive. When a client considers filing a lawsuit or must decide how to handle a lawsuit someone else started, one of the most fundamental questions to ask is: Who pays the lawyers? Under the American...more
This update will address the following issues: whether a party has a right to jury trial in trust modification and other similar actions, what are the standards for pretrial receivership and injunctive relief in trust...more
Estate planning involves discussing personal topics such as family, finances, and future goals. A well-designed estate plan will preserve your legacy for generations to come. Therefore, creating an estate plan is one of the...more
As demonstrated in our Gold Medal Bakery case, with corporate fiduciary claims, there can be thought-provoking challenges and issues presented by the question of whether a claim is direct or derivative. Probate and trust...more
In Wells Fargo, N.A. v. Clower, a trustee filed suit for declaratory relief regarding its discretion to make income distributions. No. 02-20-00058-CV, 2021 Tex. App. LEXIS 7675 (Tex. App.—Fort Worth September 16, 2021, no...more
In an opinion released last week, the Minnesota Court of Appeals rejected a petition to modify the terms of a trust to allow for the early distribution of trust assets to the beneficiaries. The court also denied the...more
In a recent Pennsylvania Supreme Court case, In re: Estate of William K. McAleer, the state high court addressed the issue of whether Pennsylvania law recognizes the fiduciary exception to attorney-client privilege....more
Section 2030 of California’s Family Code provides an important safeguard to ensure the fairness of marriage dissolution proceedings. It allows the Court to order a more financially well-off party to pay some or all of the...more
House Bill 625 (2021), sponsored by Representative Clay Yarborough, R–Jacksonville, amends Sections 733.6167 and 736.1007 of the Florida Statutes to provide that if an attorney intends to charge a fee for an estate or initial...more
Many family member trustees are uncertain about whether and to what extent they can use trust assets to obtain legal representation. For example, when two parents choose their daughter, upon their incapacity or death, to...more
THE PAPER CHASE - Using the Loan Method of Split Dollar as an alternative to attorney fee deferrals. 1) Defer fees. 2) Once deferred convert fees into tax free income. 3) Reposition in a Structured Settlement Life Insurance...more
In California, the Attorney General oversees charitable trusts. This responsibility includes bringing legal actions against trustees who breach their fiduciary duties. Government Code section 12598 provides that the...more
Individual trustees often fail to fulfill the duties imposed on trustees, not only by the trust instrument, by also by the trust statutes applicable in the jurisdiction. It is often the case that the individual trustee is a...more
Areas of Discussion: - In this Presentation, we will discuss the following: - Duty of loyalty; - Authority for trustee compensation; - Factors for reasonable compensation; - Other issues arising from trustee...more
American courts (including our California state courts), in contrast to courts in England, do not typically award attorneys’ fees to a lawsuit’s “victor.” There are, of course, exceptions to this so-called “American Rule.”...more
In In the Interest of K.K.W., an ex-wife sued an ex-husband and the trustee of a trust that they created for breaches of fiduciary duty and sought to remove the trustee, among other claims, arising out of the trustee’s...more
In In re Cousins, a trustee filed a mandamus proceeding to challenge a trial court’s order denying his motion to pay his attorney’s fees from the trust. No. 12-18-00104-CV, 2018 Tex. App. LEXIS 3930 (Tex. App.—Tyler May 31,...more
In In the Interest of K.K.W., a father and mother, who were settlors, filed competing claims regarding the interpretation of a trust for their son. No. 05-16-00795-CV, 2018 Tex. App. LEXIS 2174 (Tex. App.—Dallas March 27,...more
When the fallout from failed intellectual-property litigation collides with bankruptcy, the complexities may be dizzying enough, but when the emerging practices and imperatives of litigation financing are imposed on those...more
California trust litigation often stems from disagreements and hostility among family member co-trustees. Rather than picking one of their kids to serve as sole successor trustee when they die or become incapacitated, Mom and...more
In Wells Fargo v. Militello, a trustee appealed a judgment from a bench trial regarding a beneficiary’s claims for breach of fiduciary duty, negligence, and fraud. No. 05-15-01252-CV, 2017 Tex. App. LEXIS 5640 (Tex....more