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«Aggregated Summary of Reports Provided by ABA-PTL and ACTEC-Prac List serves 2015 Heckerling Estate Planning INSTITUTE Edited, Aggregation of On-Site ...»

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Ringgold-Lockhart v. County of Los Angeles 9th Circuit vacates district court’s order that declared plaintiffs “vexatious litigants” and imposed a pre-filing condition on the plaintiffs as a result of their various filings relating to their challenge of the LA County Probate Court’s removal of one of the plaintiffs as trustee.

Schmeller 2015 US District Lexis 1825 11 redundant pro se lawsuits against executor of an estate. Plaintiff’s lawyer was Sergeant Pepper – lawsuit involved damage to house plants.

Directed Trusts, Protectors & Special Fiduciaries SEC v. Wyly In securities law case, court rejects “independent trustee” exception and finds trusts are grantor trusts despite professional offshore trustees.

Schwartz v. Wellin Trustee appointed by trust protector substituted as plaintiff because beneficiaries’ removal of trust protector without appointing a successor protector for 3 months violated the trust terms and did not bar protector from appointing trustee.

2014 US District Lexis 172610-Court reached same result with slightly different reasoning.

Manasseon 4D13-2241- Florida case Children sued wife/trustee for overspending – issue was whether the children were current or remainder beneficiaries. Court said trust terms were ambiguous – trust protector determined that spouse was only current beneficiary and children were only beneficiaries upon her death. Actions by trust protector might have resulted in his being included in the lawsuit on basis that he favored spouse not children and breached his fiduciary duty.

Spendthrift and Asset Protection Trusts Mennen v. Wilmington Trust Company Fiduciary exception to the attorney-client privilege does not apply to trustee’s legal advice in connection with trustee’s petition arising out of failed investments directed by co-trustee.

Safanda v. Castellano Spendthrift provision in South Carolina trust does not protect assets from bankruptcy trustee where debtor instructed family member trustee to apply provision and convert outright gift to a trust, thereby causing the trust to be a device similar to a self-settled trust and subject to creditors. Dana suggested that you should start with a spendthrift trust and then build flexibility into it.

Scott v. Dendero and IMO Daniel Kloiber Dynasty Trust In both cases beneficiary of trust enters into divorce proceedings outside of jurisdiction of trust and spouse takes position that trust assets can be reached as a part of the divorce proceeding. Probate court determines that divorce proceedings must be finalized first to determine if trusts can be accessed.

2014 Kentucky App – Kloiber divorce case addressing fraudulent transfer that occurred 10 years before the divorce thrown out by appellate court.

Fiduciary Succession Testamentary Trust of Conti Court refuses to approve UTC nonjudicial settlement agreement that provided terms for the change of corporate trustees in conflict with the UTC judicial change of trustee provisions. Court held that change of circumstances requirement under statute must be determined by facts.

Taylor Intervivos Trust Beneficiaries cannot use the UTC codification of the Clafflin trust modification doctrine to grant beneficiaries power to remove and replace trustee without cause and contrary to the UTC judicial removal of trustee provision.

Vincent Fumo Irrevocable Children’s Trust fbo Allison Fumo Court, over one dissenting opinion, voids the settlor’s appointment of a trustee under a power reserved in the trust where the trustee was found to be the “alter ego” of the settlor and would facilitate settlor’s plan to reclaim the benefit of the assets in the trust following his federal incarceration for mail fraud and tax evasion.

Business Interests Jimenez v. Corr Use of pour over will violates shareholder’s agreement and forces sale of stock to company, despite the fact that the revocable trust provided for distribution or sale of shares to qualifying shareholders.

Bleckman 2015 Florida App. Lexis 193 Corporate agreement prohibits transfer of ownership in assets to a “paramour”- brother tries to do so and court upholds agreement terms.

Trustee disclosure Smith v. SunTrust Bank Line item on account statement reporting sale to straw man does not start statute of limitations on sale by trustee but trustee’s detailed letter received by beneficiaries starts limitations period on income distributions.

Beck v. Mueller Wisconsin Court of Appeals rules that trust beneficiaries’ claims against trustee were time-barred by the statute of limitations as the beneficiaries had notice of the trustee’s actions and their claims thus accrued before the trustee filed his formal accounting.

Fiduciary Privileges & Exceptions Dana pointed out that we do not have a consistent body of law on fiduciary exception to privilege Heisenger v. Cleary Connecticut rejects the fiduciary exception to the attorney-client privilege.

Hammerman v. Northern Trust Company Arizona holds that the UTC and state law support adoption of the fiduciary exception to the attorney-client privilege. Reverses trial court for ordering disclosure of all communications to both beneficiary and successor trustee.

Cy Pres Old National Bancorp v. Hanover College Trustee that failed to seek stay of court order and transferred assets to charity lacks standing to appeal termination of charitable trust.

Lechowicz v. Costco Terms of deed granting standing to local citizens not effective to grant citizens rather than attorney general standing to enforce terms of a charitable gift where citizen cannot show unique interest in gift or harm.

Arbitration Brown v. Brown-Thill Under co-trustees arbitration agreement arbitrator could order co-trustee to consent to distribution plan from trust owned entity, but could not exercise judicial power to remove trustee under UTC.

Archer v. Archer Trust term requesting arbitration of disputes is precatory and cannot establish an enforceable agreement to arbitrate under trust agreement.

Gupta v. Merrill Lynch Court enforces broad arbitration provision in separate unrelated custody agreement as barring claims against trustee for breach of trust, but refuses to apply direct benefits estoppel to bind trust beneficiaries with no contractual connection to arbitration provisions in trust agreement.

Warren v. Geller Beneficiaries bound by arbitration in client agreement creating a trust by court’s finding they were third party beneficiaries of the contract and through equitable estoppel by accepting distributions.

Amendment, Revocation, Reformation and Termination of Non-charitable trusts O’Connell v. Houser Reformation of trust affirmed by state supreme court under Commissioner v. Bosch principles on adequate proof that reformation was proper to avoid loss of grandfathered GST-exempt status.

Purcella v. Olive Kathryn Purcella Trust Alaska Supreme Court rules that grantor of self-settled irrevocable trust did not produce evidence sufficient to establish that trust was the product of undue influence or sufficient to reform, modify or terminate the trust due to a purported mistake of fact or law or due to unanticipated circumstances.

Construction and Conditions Estate of George McFadden Ambiguous perpetuities termination provision construed to allow trust to exist for longest possible period allowed under the rule against perpetuities.

Matter of Kirschner v. Fischer No trust assets pass under a trust provision for the distribution of property in the amount of assets includable in the grantor’s estate for FET purposes where the decedent died in the year 2010 and elected to pay no FET.

Life Insurance Torti v. Hoag Court refuses to dismiss claims against trustee and trustee’s insurance broker business for loan to settlor from cash value in life insurance subject to split-dollar arrangement.

Wills and Probate Estate of Truong Tran Decedent’s DNA sample “plucked hair” is an estate asset.

Session I-D Asset Protection Trusts Under Attack - Views from the Bench and Bar Gideon Rothschild, Judge Margaret A.

Mahoney, Duncan E. Osborne Seventeen years after enactment of the first DAPT laws the courts have yet to rule in favor of them. This panel, including a Chief Judge of the U.S.

Bankruptcy Court and two experienced practitioners, will examine and explore the efficacy of these structures.

Reporter:Craig Dreyer Esq.

Seventeen years after enactment of the first DAPT laws the courts have yet to rule in favor of them. This panel, including a Chief Judge of the U.S. Bankruptcy Court and two experienced practitioners, examined and explored the efficacy of these structures. Here are the Reporter's significant highlights from this presentation.

The speakers provided an extensive outline. The outline was split into the following six sections: 1) Self Settled Trusts: An Open Question, 2) Asset Protection Trusts: Case Studies, 3) Domestic Venue Asset Protection Legislation Vulnerabilities, 4) Fraudulent Transfers, 5) Defining Future Creditors in the Context of Actual Fraud, and 6) a Discussion of Hypotheticals.

The panel opened with the question: Domestic Asset Protection Trusts (“DAPT”), do they work? The panel was created after a speaker last year made the comment that DAPT do not work. The panel believed that DAPT do work in certain circumstances. The panel also discussed the primary way to attack DAPT is by applying the fraudulent transfer statutes. They noted how the term fraudulent transfer is misleading as no fraud needs to occur for the statute to apply. They noted the Uniform Fraudulent Transfer Act has changed the name of the transfers from a “fraudulent transfer” to a “voidable transfer” to eliminate the misconception that a fraud is necessary. The updated Uniform Fraudulent Transfer Act was released in October and is expected to be adopted by many states soon.

The panel noted that there are very few cases on DAPT, but there are many on trusts in foreign jurisdictions. Mr.

Rothschild stated that most of the cases involving fraudulent transfers are decided on public policy grounds with very bad facts. Interestingly, in attacking DAPT courts have been citing to Section 270 of the Restatement (Second) of Conflict of Laws which has a public policy exception; however, it seems Section 273 is more applicable, but it does not have a public policy exception.

Mr. Osborne spoke on a number of recent cases. He analyzed Evrseroff (where the court did the solvency analysis) and noted the importance of doing this analysis before and after asset protection planning is done to assert as a defense to a fraudulent transfer claim. He also noted the Weitz case (where the Court held tortious conduct occurred in NY as a result of a wire transfer to the Cook Islands) and the panel agreed the ruling was a real stretch of the long arm statute to get personal jurisdiction over the trustee. In addition, the panel discussed how the Mortensen case was the first case to address a DAPT. Although the ruling failed to support the DAPT it was a result of bad facts. The debtor drafted his own trust without counsel and in Judge Mahoney’s view the case a slam dunk as the debtor failed to even pay the creditors who existed when the trust was created.

The panel also discussed Huber and Townley cases to emphasis that potential future creditors may be included in the fraudulent transfer test. Mr. Osborne views California, Washington and Illinois as very creditor friendly states.

The panel went on to discuss the Rush case as a set of bad facts (one of the trustees and the real property held by the trust were located in Illinois). The panel noted that the best plan does not have a trustee or property in a nonDAPT jurisdiction.

Judge Mahoney noted that under section 548(e) of the Bankruptcy Code, it provides a 10 year look back for fraudulent transfers to self-settled trusts. The Porco case noted 548(e) only applies to express trusts and not resulting trusts, but also left many unanswered questions. The panel discussed Hamilton Greens, LLC, to emphasize that impossibility is a complete defense to a contempt charge. In Hamilton Greens, LLC, unlike the widely discussed Lawrence case, the court determined the settlor had no ability to bring the assets back.

Judge Mahoney lead the discussion on the Uniform Fraudulent Transfer Act (“UFTA”) and the Uniform Fraudulent Conveyance Act (“UFCA”), noting these statutes are the vehicles for voiding transfers into asset protection trusts by bankruptcy trustees or creditors under state law. The UFCA is the older statute, but is only discussed because it is still the law in New York. The UFTA statute has examples of badges of fraud to help determine if there is a fraudulent transfer. These state statutes for fraudulent transfers vary from 2- 10 or more years depending on the state. The fraudulent transfer look back period under the bankruptcy code is limited to two years, absent other provisions. However, a bankruptcy trustee can use the bankruptcy code, or step into the shoes of a state court creditor to go after fraudulent transfers. Therefore, they can use the state statutes as well in many cases. The panel then discussed the issue about foreseeable or potential creditors and noted there are no clear answers.

Judge Mahoney noted Section 727 of the Bankruptcy Code where a debtor can have a discharge denied if the debtor engages in transferring assets within one year of filing or the debtor conceals assets. This is a bad result for the debtor as all their assets are seized, but they are still liable for any outstanding debts after the seizure. Furthermore, if bankruptcy court finds concealment of property, it may result in a criminal conviction. Judge Mahoney believes asset protection plans help create settlements. She also noted that domestic trusts look better to judges since they are harder to dismiss on public policy grounds.

Mr. Osborne addressed some constitutional issues with asset protection trusts. He notes the full faith and credit issues often arise in that a judgment of one state must be recognized in another state.

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