Tag Archives: trustee theft

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Large black rock will fall on your hand if you try to get to the trust document. Declaratory judgment needed first.

If No Contest Clause, Use a Declaratory Judgment

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A No Contest Clause basically says “If anyone contests what I said in this document, they don’t get anything.” The problem with a No Contest Clause is that no one knows what a “contest” is. If the executor or trustee isn’t doing his or her job, and you file something with the court complaining about that, is that a “contest”? Well, it might be. Below is a short discussion on how to use a Petition for Declaratory Judgment to battle a No Contest Clause.

Allegations of trustee misconduct are too common from our experience. This even happens in the case of a celebrity, such as the allegations that Michael Crichton’s widow mishandled the trust. When should you use a Petition for Declaratory Judgment? Let’s say you’re dealing with Charlie Brown’s parents’ trust. It says that after Mr. and Mrs. Brown die, Charlie Brown’s younger sister, Sally, is to become the successor trustee. And let’s say that Sally is now the trustee. The trust contains a No Contest Clause. Sally is refusing to do certain things (like selling the house, providing an accounting, treating the beneficiaries equally). If Charlie goes to court and make all of these claims, and then asks that Sally be removed as trustee, Charlie could be violating the clause (because the trust named Sally to be trustee). However, Charlie could still do this and get away with it if he has “probable cause” to bring your petition. (And yes, “probable cause” is also a loosey goosey term.)

Confused yet? Read on and hopefully it will get clearer …

Charlie has two choices. First, he can roll the dice and hope he can prove his case. That’s not a good idea. Or, second, he can file a Petition for Declaratory Judgment.  Assuming you go the second route, you are not actually asking for the Court to remove Sally the trustee. You are simply asking the Court to determine whether Sally has breached her duties as trustee. Here the petition would say:

WHERFORE, Petitioner requests that the Court:

  1. Find that Sally Brown is unwilling to act as trustee of the Trust.
  2. Appoint Charlie Brown as successor trustee of the Trust only if the Court finds that Sally Brown is unwilling to serve as trustee.
  3. Order Sally Brown to deliver all accounts, books, and records of the Trust to Charlie Brown only if the Court finds that Sally Brown is unwilling to serve as trustee.
  4. Grant such other and further relief the Court deem just and appropriate under the circumstances.

A really conservative approach to a Declaratory Judgment action would be to do this in two completely separate stages. First, you would ask the court to rule that if you bring an action alleging the various misdeeds of the trustee, that you would not be violating the No Contest Clause. Only after you have the Court’s blessing with that first proceeding would you file a second petition requesting that the trustee be removed. That’s the way things are done in, for example, California.

The same principle applies in the context of a Will.

If a trustee or Personal Rep is not doing his/her job, and the relevant document has a No Contest Clause, you need to see a probate litigation attorney. Do not try to do this on your own! We’re here to help. Give us a call at 602-443-4888.


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Photo of 6 year old Dachsund Winnie Pooh dreaming of money

When does it make sense to have a pet trust?

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According to DNAinfo.com, there is a court battle over a $100,000 pet trust created for a 6 year old Dachshund in her deceased owner’s Will. Supposedly, the owner, Patricia Bowers, passed away in 2010 (apparently when the pet was but a wee pup). The dachshund, named Winnie Pooh, was left to caretaker Virginia Hanlon. Ms. Hanlon filed court papers in Manhattan last week, alleging that the executor of Winnie Pooh’s deceased owners estate is improperly withholding funds from the doggie’s trust. The trustee has occasionally sent payments of $2.36 per quarter (apparently estimating the cost of caring for a pet to be $10 per year).  Last year when Winnie Pooh had a $6,000 surgery, the reimbursement check from the trustee bounced. So … when does it make sense to have a pet trust?

Many questions surface from this strange story.

  • Why would you name a dog after a cartoon bear?
  • What is the trustee doing with the money? If $100,000 is held in a pet trust, then there should be absolutely no reason that a check would bounce–unless the trustee is completely mishandling the money. If that’s the case, the trustee needs to get removed by the court and ordered to pay the caretaker’s legal fees and costs.
  • The caretaker says that it would take $5,000 per year to take care of Winnie Pooh. I understand when there is a $6,000 vet bill. But how often does that happen?
  • According to peteducation.com, the high end estimate of owning a dog for 14 years would be $39,000. What else was the caretaker planning to do for the dog? Go on trips to Europe?

Final Thoughts.

Looking at the big picture, whether Winnie Pooh gets $5,000 per year, or a little more or less, her story is actually kind of within reason. You recall Leona Helmsley leaving $12 million to her beloved maltese, Trouble, among many other pets. That is actually absurd. So is when Gunther IV inherited his $375 million fortune from his father, Gunther III, the beloved pet of Countess Karlotta Libenstein. (This was actually the first time I had heard of a pet dynasty. I guess it’s technically possible.)

To conclude, I’m in favor of leaving a reasonable amount of money in a pet trust. That’s only fair to the person to whom you leave your pet. However, if you want to leave millions of dollars to your pet(s), you might just do some more soul searching and see if perhaps your money could better help the world.


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