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Duties of a Trustee

" (a) The trustee has a duty to administer the trust solely in the interest of the beneficiaries. " - California Probate Code Sec. 16002.


" If a trust has two or more beneficiaries, the trustee has a duty to deal impartially with them  . . ." -  California Probate Code Sec. 16003.

In my case, City National was obviously not impartial.  Acting against my interest it was ganging up against me with the co-beneficiaries - in the interest of Marilyn Sussman (aka Smith).  City National was not acting impartially at all.

Letters from City National's files show how City National's trust officer was negotiating with them regarding the attorneys' fees.  

Incidentally, to the extent Foley was, herself, in part financing litigation against me - litigation in which she was not a party -  it could very well be considered the crime (in some jurisdictions) of "champerty".   "Champerty" is defined as a "bargain between a stranger and a party to a lawsuit by which the stranger pursues the party's claim in consideration of receiving part of any judgment proceeds; it is one type of 'maintenance,' the more general term which refers to maintaining, supporting, or promoting another person's litigation. . . ." (Black's Law Dict. (6th ed. 1990) p. 231, col. 1.)   

Click here to see Feb. 17, 1989 minute order (from will contest) where Marilyn Sussman (aka Smith) attempted to use the Sec. 391 weapon unsuccesfully.

In this case, City National was acting as attorney - and I am paying for the attack on myself out of my own trust income.

The following is taken from my opening brief in my attempt to appeal the "vexatious litigant" order of the Probate Court.  

Click here to see the entire opening brief.

Under CAL.PROB.CODE Sec. 16002, a trustee has a duty of loyalty to the trust beneficiaries. CAL.PROB.CODE Sec. 16002(a) states the following:

"(a) The trustee has a duty to administer the trust solely in the interest of the beneficiaries.".  

A trustee is held to a standard of behavior which does not permit  the litigation tactic of bludgeoning its beneficiary with a Sec. 391.7 motion. That constitutes a breach of loyalty. See Matter of Estate of Gump (1991) 1 Cal.App.4th 582. A trustee must display complete loyalty to the interest of the beneficiary:  

"The most fundamental duty owed by the trustee to the beneficiaries of the trust is the duty of loyalty. This duty is imposed on the trustee not because of any provision in the terms of the trust but because of the relationship that arises from the creation of the trust. A trustee is in a fiduciary relation to the beneficiaries of the trust. There are other fiduciaries, such as guardians, executors or administrators, receivers, agents, attorneys, corporate directors or officers, partners, and joint adventurers. In some relations the fiduciary element is more intense than in others; it is peculiarly intense in the case of a trust. It is the duty of a trustee to administer the trust solely in the interest of the beneficiaries." (IIA SCOTT, The Law of Trusts, 4th ed. Sec.170).  

City National's motion to declare appellant a "vexatious litigant" was not in appellant's interest.

City National breached its duty of loyalty by bringing it. City National further breached its fiduciary obligations by charging the expenses of the motion to the trust. And, compounding its egregious misconduct was City National's Sec. 128.5 motion, by which appellant is, himself, forced to pay 100% of the expenses for bringing the motion against himself.  

City National -- as a creature of its trustee-mission -- had no standing to bring the Sec. 391.7 and the Sec. 128.5 motions against it's beneficiary.

The rights and obligations of a trustee are defined according to only one thing: his mission as trustee. See LEPAULLE, An Outsider's View Point of the Nature of Trusts, 14 Cornell Law Quarterly (1928-1929) p.52-61. The filing of a Sec. 391.7 motion against a beneficiary, is inconsistent with respondent's mission. Therefore, respondent had no standing to make its Sec. 391.7 motion.