How JustAnswer Works:
  • Ask an Expert
    Experts are full of valuable knowledge and are ready to help with any question. Credentials confirmed by a Fortune 500 verification firm.
  • Get a Professional Answer
    Via email, text message, or notification as you wait on our site.
    Ask follow up questions if you need to.
  • 100% Satisfaction Guarantee
    Rate the answer you receive.
Ask Dwayne B. Your Own Question
Dwayne B.
Dwayne B., Attorney
Category: Legal
Satisfied Customers: 32599
Experience:  Began practicing law in 1992
11068102
Type Your Legal Question Here...
Dwayne B. is online now
A new question is answered every 9 seconds

What exactly does it mean to challenge a trustee's

Customer Question

What exactly does it mean to challenge a trustee's discretion when it comes to violating a no contest clause in a trust? I don't need to know what a no contest clause is I need specific examples of what discretionary means, it's such a broad term but from what I understand when it comes to trust it really just has to do with money. I filed a lawsuit in Kansas where the torts were committed but it's a Missouri trust and I have not yet filed a lawsuit in Missouri. My claims against the trustees include false imprisonment, intentional and negligent infliction of emotional distress, and one heck of a defamation claim and more. Years ago they deleted the health education and maintenance for my trust and they gave themselves sole and absolute discretion, they didn't have the right to do that but they did it anyway and now they're claiming that they can basically do whatever they want. I know that's not necessarily true but this no contest clause has me worried now. i'm not challenging the fact that they cut off my money from the trust, they did, but I'm not necessarily challenging that decision. however, I do point out that they cut me off within the trust but only as a supporting argument for everything else that they did. Are there any laws out there or rules, or cases that deal with this? I'm not challenging the validity of the trust in anyway and I don't think I'm challenging their discretion...
Submitted: 4 months ago.
Category: Legal
Expert:  Dwayne B. replied 4 months ago.

Hello and thank you for contacting us. This is Dwayne B. and I’m an expert here and looking forward to helping you today.

I can answer this for you but I can't provide case cites because the time and expense involved is too great. It's not unusual for the research on a simple issue to cost several hundred dollars.

Do you want me to go ahead and answer without the case cites?

Customer: replied 4 months ago.
please
Expert:  Dwayne B. replied 4 months ago.

I was just signing off for the evening. I will go ahead and post the answer and then if you have any follow ups or additional questions we can finish them tomorrow.

Sometimes in a trust and more often in a will there is a section that says if anyone challenges the will or, in this case, a choice made by a trustee then that person loses all rights under the will/trust.

The purpose of that clause is to prevent people from challenging things that go against them and thus having legal fees chipping away at the money that is in the trust.

The trustee's discretion means it is a decision on something that the trust doesn't specifically direct the trustee on what to do, thus leaving it to the trustee's discretion.

Normally, if there is a clause like this and you challenge something and win then you don't lose your share of the trust. If you lose, then you do.

If your question has been answered then I'd offer my best wishes to you and ask that you please not forget to leave a Positive Rating so I receive credit for my work. Of course, please feel free to ask any follow up questions in this thread. I want to be sure that all of your questions are answered.

Customer: replied 4 months ago.
I thought that the term "discretion" had a narrower definition when it comes to a trust then it otherwise would, am I mistaken?
Expert:  Dwayne B. replied 4 months ago.

Yes and no. A trustee has a higher duty, that of a fiduciary, which limits their discretion to an extent. For instance, they couldn't take all of the money in the rust and invest it in a high risk stock. However, they might be able to take some of the money and invest it in a high risk stock and the rest and invest it in government bonds.

A fiduciary has to do what is best for the trust.

Customer: replied 4 months ago.
Ok, sorry... I need to be a bit more specific... What does it mean to challenge a trustees discretion regarding distributions from a trust? I am assuming that it means if I am a beneficiary and a trustee cuts off my income, I can't sue him for it. My problem is that I just sued the trustees for committing a number of torts against me, some are pretty outrageous. They cut off my income about a year ago because they knew that I was probably going sue them and they were right, I just filed the lawsuit but and they just sent me a notice that I've violated the no contest clause and am no longer a beneficiary. But I'm not suing them for cutting off my income. I did mention the fact that they cut off the income but all I said was that "they cut off my income because I threatened to sue them"... It was simply used as a supporting argument.
Expert:  Dwayne B. replied 4 months ago.

I'm having issues with the website and/or my computer this evening. I will be back online tomorrow morning and will assist then.

Customer: replied 4 months ago.
Did you get any more insight? I just need to know what it means to "challenge" their discretion when it comes to distributions from the trust. Does that mean that I have to sue the FOR withholding distributions or does simply using that as an example to support another claim qualify as well? Bot***** *****ne is that the trustees are trying to argue that they cut off my income because I wasn't complying with their demands and that's not the case. They were demanding to see my private medical records which was not a power given to them by the trust... It's a long story. They actually cut me off because I threatened to sue them for estate fraud. I played along for a little while and even gave them my private records just to comply and prove that cutting me wasn't about any records and did that for about five months and they never did reinstate the income so I had proved that what they were doing was because of the estate fraud issue. At that point I stopped giving them records. So my lawsuit is all about estate fraud however I did mention that they failed to reinstate the income even after u had "complied" but only as a supporting argument. I said that when I was explaining that they were just playing games with me but I didn't challenge them. Is that violating a no contest clause by just pointing out that they cut me off for suing them?
Expert:  Dwayne B. replied 4 months ago.

Sorry, the website wouldn't let me post until you posted again.

It will mean suing them, unless the trust document itself defines another way to challenge them (which is rare). For instance, I saw one trust that outlined a procedure where a beneficiary could challenge a trustee by suing them in a lawsuit, or by going to a different trustee that was named in the trust and letting them make the decision. In essence, that one was an arbitration, even though they didn't use that name.

There's no case law that states challenging them would mean not complying with their requests, nor telling them that you "might" sue. You would actually have to file the lawsuit to challenge them.

Under your facts as you set them out you did not challenge a trustee's discretion.

Also, the term discretion means that it is a decision whereby they could do multiple different things and they chose one of them to do. That would be an exercise of their discretion.

If your question has been answered then I'd offer my best wishes to you and ask that you please not forget to leave a Positive Rating so I receive credit for my work. Of course, please feel free to ask any follow up questions in this thread. I want to be sure that all of your questions are answered.