Category Archives: Settlement of Controversies

September 24, 2013

Fiduciary Solutions Symposium Recap

by Kelly Cooper

Last week, we held our first Fiduciary Solutions Symposium.  We want to thank each of you that came and participated.  We enjoyed seeing all of you and getting a chance to catch up with you over breakfast.

For those of you that couldn’t attend, here is a brief recap.  When we discussed topics that we wanted to present at the Symposium, we kept coming back to the constantly evolving and changing nature of our practices.  Whether it is taxes, ADR or changes in state laws, things never stay the same.  As a result, we decided to discuss a variety of topics and the trends we are seeing each day in our practices.  It was difficult to narrow down the topics to two hours of content, but we ended up discussing the following issues:

  • Digital Assets
  • Social Media and Use in Litigation
  • Gun trusts
  • Civil Unions/Same Sex Marriage and related tax issues
  • Reformation and modification of trusts and decanting
  • Apportionment and allocation of taxes and expenses in administration
  • Baby boomers and the “Silver Tsunami”
  • Migratory Clients and Differing State Laws
  • Trends in Alternative Dispute Resolution
  • Assisted Reproductive Technology

 We had so much fun that we are taking the show on the road and will be in Salt Lake City on November 12th.  We hope to see you there.

March 18, 2013

“I Feel Good” Settlement Suffers a Setback

by C. Jean Stewart

Relying on Section 3-1102 of the Uniform Probate Code,  a provision included, in part, to prevent fiduciaries from blocking a compromise, the South Carolina Supreme Court recently refused to implement a settlement agreement among beneficiaries of the estate of the late James Brown when fiduciaries objected to the proposed settlement, Wilson v. Dallas, 27227, 2013 WL 697042 (S.C. Feb. 27, 2013) .

The appellants, who prosecuted the appeal, were successor fiduciaries who had been appointed (and then removed) by the trial court after family members and beneficiaries filed objections seeking removal of the original personal representatives and trustees.  A South Carolina trial judge had presided over a 4-day hearing on the merits of the settlement, had approved the agreement and had ordered the fiduciaries to implement it.  Instead, the objecting fiduciaries appealed the order, arguing that the settlement violated the intent of the Godfather of Soul, who died on Christmas Day in 2006.   

Section 62-3-1102 of the South Carolina Probate Code, (substantially identical to Section 15-12-1102 of the Colorado Probate Code), requires the trial court to find (1) that the contest or controversy is “in good faith,” which the South Carolina Supreme Court found was not true in this case and (2) that the effect of the agreement on the interests of persons represented by fiduciaries or other representatives is “just and reasonable,” which the Court found it was not.  Instead, the South Carolina Supreme Court found that the parties had violated the singer’s clearly stated desires, refused to enforce the settlement agreement, and remanded the case to the trial court. 

In addition to the findings that the controversy was not in good faith and that the effect of the agreement was not just and reasonable, the South Carolina Attorney General came under severe criticism in the opinion for providing in the settlement for the Attorney General’s continuing involvement in the day-to-day management of newly-formed charitable trusts, which the South Carolina Supreme Court concluded usurped the roles of the fiduciaries appointed by the deceased singer and the responsibilities of the court.