In a very interesting case and one that involves a little used legal theory called de son tort, the California Fourth District Court of Appeal in King v. Johnston ruled that a trust beneficiary could recover from a third party who helped a former trustee breach the trust, even though a successor trustee had been appointed. This ruling was issued in November 2009.
The Court of Appeal held that a woman had standing to sue her grandfather’s stepdaughter for inducing his widow—the stepdaughter’s mother and the trustee—to transfer trust property and mortgage it for her daughter’s benefit, and for then holding herself out as trustee after her mother’s death. This was a reversal of the trial court ruling.
The case is now remanded to the trial court and it has been instructed to rule for Tammy King on her claim that Barbara Johnston, as a third party, actively participated in the breach of trust by Lenora Gilbert, widow of trust settlor Arthur Gilbert.
De Son Tort - Common Law Principle
The Court of Appeal also directed the trial court to determine whether King could show that Johnston was liable as a trustee for breaches after Lenora Gilbert’s 2002 death as a trustee de son tort. The common law theory allows for those who wrongfully hold themselves out as a trustee and exercise authority over property to be treated as trustee and sued for any breach of duty.
King filed suit as a beneficiary, alleging Johnston induced her mother to transfer a piece of trust property to herself, without consideration, and then induced her mother to mortgage the property for a personal loan.
The bank eventually foreclosed on the property, and Lenora Gilbert lost title. King further alleged that Johnston took money and rents that belonged to the trust and used them for her own personal benefit.
She alternatively argued that Johnston had essentially taken over the role of trustee while her mother was still alive but in failing mental and physical health, and that Johnston’s actions during this period of time and after Lenore Gilbert’s death made Johnston trustee de son tort and liable for failing to properly care for and/or recover trust property.
Lack of Standing
After a bench trial, Imperial Superior Court Judge Jeffrey B. Jones ruled that King should recover nothing from Johnston because she failed to show a conspiracy between Johnston and her mother or establish that Johnston was a de facto trustee before her mother’s death, and because King lacked standing to sue Johnston without joining the current trustee—Lloyd Gilbert, Arthur Gilbert’s son—in the action.
He also concluded that Johnston had unduly influenced her mother to breach the trust and had “acted as trustee” before Lloyd Gilbert accepted the role, but ruled that King could not recover under the theory because she lacked standing.
He further declined to award King any relief on her claim that Johnston acted as trustee after her mother’s death because Lloyd was “actively recouping” the value of the trust rental income that Johnston had wrongfully retained by withholding her share of the trust distributions.
King appealed, and the Court of Appeal rejected Jones’ determination on standing.
The Court of Appeal opinion provides: “If it is true that ‘the right of the beneficiaries against the [third party] is a direct right and not one that is derivative through the trustee' . . . we see no reason why an independent claim that exists prior to the appointment of a successor trustee should be extinguished upon that appointment, and [Johnston] has offered no reason why the appointment of a successor trustee should serve to wipe out a beneficiary’s ‘direct right’ against a third party.”
The Court of Appeal also provided that the trial court erred in failing to consider and make the necessary findings as to whether Johnston’s conduct was sufficient to hold her her liable as a trustee de son tort for some or all of the trust property and, if so, whether she breached her duties and what relief would be appropriate.
The opinion states: “[O]ne should not be permitted to assume the character of a trustee and wrongfully benefit from doing so without also having to assume the responsibilities of a trustee."
Attorney Comments: This opinion and the legal theory of this case is important for trustees and beneficiaries to understand, but not just because of the legal theory. This case arose because of an extremely common factual pattern -- an elderly surviving spouse, who has more than one child (which children are not close, and do not particularly get along), the situation where the elderly surviving spouse is the trustee of a trust created by the couple jointly, and, finally, the situation where one of the children is in closer proximity to the surviving spouse.
To begin with, although it is not immediately apparent from the opinion, when one spouse dies it is typical in most estate planning documents that the deceased spouse's property, his or her separate property and one-half of the community property, is held in a trust which becomes irrevocable. The effect of the "irrevocability" is that the contingent beneficiaries of the trust (i.e., where the assets go upon the death of the surviving spouse) are sometimes fixed. In plain English, the plaintiff in this case wanted a full 30% of all of the assets as of the death of the first spouse to die, and basically felt that any transfers of any of those assets between the first and second death were improper.
It is not at all clear that this is a justifiable argument (based upon the equities), however, as the surviving spouse may well have no experience at all in acting as a trustee we often see that during the period after the first spouse dies, many trust requirements, from filing tax returns to other things, are simply ignored or not properly accomplished. So, the argument may have no equitable basis, but may be a very good argument based upon technical trust law.
This is how a carefully crafted estate plan becomes completely subject to the "spin applied to the facts," as it were. The surviving spouse may not realize that he or she cannot make gifts of property out of the trust estate, at least without observing certain formalities. Perhaps the child who lives closer is actively assisting the surviving spouse, after all, one person's "undue influence" is another person's "well deserved gift." There is no way of telling, even from a 30 page legal opinion, which of the beneficiaries is factually correct.
The one thing that is clear is that despite the almost certain inclusion of a no-contest clause in the operative documents, this family is now going through two trials and an appeal.
Had the surviving spouse consulted a lawyer during the time these transfers were made, all of the litigation could have been avoided.
Posted by Henry (Hank) J. Moravec, III, a partner at Moravecs, A Professional Law Corporation. For a free 30 minute consultation (telephonic or in person), you can e-mail Hank Moravec at firstname.lastname@example.org or call him at (626) 793-3210.
He focuses his practice on Estate Planning, Trust and Probate Administration, Beneficiary and Trustee Representation, Tax Law, and Nonprofit Law. He represents clients throughout Southern California and his office is conveniently located for clients in the Los Angeles, Orange and San Bernardino Counties.
The firm website is http://www.moravecslaw.com/. The firm is located at 2233 Huntington Drive, Suite 17, San Marino, California 91108. There is ample free parking adjacent to the firm's office.