Cite as C093909
Filed February 9, 2023
Certified for Publication March 7, 2023
By Erika J. Gasaway
Hopkins & Carley
Headnote: Trust Contests – Using Trust Assets for Defense
Summary: The successor trustee was properly surcharged the amount of attorneys’ fees that he paid using trust assets to defend a contest as to the validity of the final amendment to the trust.
In a contest as to the validity of two different versions of a third amendment to a trust, the trial court invalidated both versions of the third amendment, held the trust as amended by the first two amendments was valid and enforceable, and surcharged the trustee the amount of trust assets he expended to defend the third amendment.
The appellate court affirmed the surcharge. By defending the third amendment, the trustee improperly pursued the interests of the beneficiaries under the third amendment over the interests of the beneficiaries under the earlier amendments. The fact that the trustee himself did not have a beneficial interest in the third amendment was irrelevant. The dispositive issue was that the trustee did not participate as a neutral party to defend the existence of the trust and its assets. The court acknowledged that trusts may include language to allow the trustee to defend the validity of an amendment, but this trust lacked such authorization and explicitly did not authorize the trustee to defend any amendment.