CHALLENGES TO TRUST AND ESTATE INSTRUMENTS

Stoltmann Law Offices Commercial Litigation Group handles select will and trust disputes on a contingent fee basis in order to align the attorney’s interest with the beneficiary who is not receiving what she is entitled to from the trustee or executor.

Will Contest

Will contests, which turn on whether a will is valid are some of the most common trust and estate lawsuits. An interested person or heir can file a petition to contest the validity of a will within six months after a will is admitted to probate in Illinois. A will contest case can be tried by a jury. Under the doctrine of election anyone who accepts a beneficial interest from will or trust in Illinois is considered to be ratifying and confirming the total will or trust that provided the benefits.

Breach of Fiduciary Duty by Trustee

The second most common trust and estate dispute litigated by the Stoltmann Law Offices Commercial Litigation Group is a trustee’s breach of fiduciary duty.  A trustee owes many duties to the beneficiaries, including:

  • Loyalty
  • Reasonable Care
  • Duty of skill and care
  • Duty of impartiality
  • Duty of loyalty and faithfulness
  • Duty to avoid conflict of interest
  • Duty to administer trust by its terms
  • Duty to give notices
  • Duty to provide information and to communicate
  • Duty to account
  • Duty not to delegate
  • Duty to segregate trust property
  • Duty to invest
  • Duty to enforce and defend claims
  • Duty of confidentiality
  • Duty to distribute.

 

The Trustee must abide by “the prudent investor rule” meaning the trustee must follow investment strategies that use reasonable business judgment and take into account the reasonable production of income as well as the safety of capital in a trust as a whole. If a trustee is having special knowledge such as an accountant or lawyer he must use it when managing the trust.

The court has power to appoint a trustee ad litem and enjoin the use of current trust assets by a trustee that breached his duty. In order to secure a preliminary injunction, a beneficiary will need to show that he or she has defined right that needs protection, that the action will likely succeed on its merits, that irreparable harm will occur without the injunction that cannot be cured with money damages.

The trust document itself may be unclear. Trusts are interpreted with the goal of effectuating the intentions of the creator of the trust, or settlor. So long as this intent is in line with the law or public policy, the court will try to make sure those intentions are followed by using the ordinary meaning of the words in the trust. The court will look at outside evidence only when there is some sort of ambiguity in the language of the trust, and the intent therefore cannot be easily ascertained.

If you find yourself in danger of being sued for breach of fiduciary duty, have already been sued for breach of fiduciary, have not received the inheritance you deserve, or want to explore how you may recover for someone else’s breach of fiduciary duty, please contact the Stoltmann Law Offices Commercial Litigation Group at 312-442-3200.

Stoltmann Law Offices Commercial Litigation Group Success Stories

 “(Alexander’s) performance in the mediation was outstanding… He spun gold from straw”— A retired judge who mediated a complex trust case against a large international bank

Alexander is a very detailed , highly educated attorney. Alexander represented me in a breach of Fiduciary and breach of contract case with a bank. Great job, great recommendations from Alexander on what to do and how to react to their nonsense and lies. we won the cases. Alexander really takes the time to make sure everything is done correctly and within the law.” Mike M-Trust Dispute Client

“Alexander Loftus is an exceptional attorney.  He recently represented me on a complex trust litigation matter and throughout, he was extremely thorough and insightful regarding all aspects of my case that would not have been resolved as quickly and effectively had it not been for Alexander’s diligence and outstanding communication skills with the opposing parties and with me. Alexander was able to negotiate a reasonable and comprehensive solution and settlement for me in a cost effective and efficient manner. Had it not been for Alexander’s persistence in developing creative, yet financially viable alternatives to resolving my case, my case would have dragged out in court for much longer than necessary and at much greater, unnecessary expense. I highly recommend Alexander Loftus if you are in need of an extremely competent and thorough attorney to represent you on your legal matters.” —Paul N. Trust Dispute Client