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Court Looks To Exact Words Of Trust To Settle Trustee Dispute

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The Montana Supreme court has words to the wise for drafting and following a trust’s terms in upholding a lower court denial of a request to remove a corporate trustee. In the Matter of the Estate of Mildred I. Berthot, December 5, 2002. The Berthot case demonstrates the importance of including details about the settlor’s intentions in a trust document.

Ellen Collins and JoAnn Barrett, current beneficiaries of the Mildred Berthot trust, claimed that trustee Norwest Trust breached its fiduciary duty when it refused to increase their trust distributions beyond the annual net income payments it had made for years. Ms. Collins and Ms. Barrett sought to name a family friend as successor trustee.

The Montana high court reiterated the basic principle of trust law—that a trust should be managed to carry out the testator’s intent. It relied on Mrs. Berthot’s own words giving the trustee authority to act in the “best interest of the trust estate.” There was no provision for any distribution beyond the net income until the end of the trust. The Justices underscored the importance of the testator’s words: “While both the majority and the dissent can speculate all day as to Mildred’s reasons for setting up the trust in the way she did, the simple fact is that no one knows why. We can only go by the wording of the document itself…”

Mrs. Berthot’s testamentary trust went into effect on her death in 1962. Ms. Collins and Ms. Barrett, Berthot’s granddaughters, became the last income beneficiaries of the Berthot trust when their mother died in 1994. The Berthot trust will end after the death of both Ms. Collins and Ms. Barrett. At that point all proceeds are to be distributed equally among Ms. Collins’ and Ms. Barretts’ children, the “remainder beneficiaries” in trust parlance. Interestingly, all but one of the remainder beneficiaries supported the income beneficiaries in seeking more income. The remaining beneficiary sought to “stay neutral” by taking no position.

Ms. Collins and Ms. Barrett argued that Norwest’s breach of fiduciary duty was illustrated by the fact that it took $8,000 per year in fees when trust income was $13,000 for each beneficiary on trust capital of $1.4 million. They took issue with the trust’s overall performance, even though the court calculated that the principal assets of the trust increased 835% and the income increased by 605% under Norwest’s management.

One dissenting Justice would have allowed the change of trustee, based largely on the consent of essentially all the beneficiaries. Without help from the trust language, however, that argument failed.

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Robert B. Fleming


Robert Fleming is a Fellow of both the American College of Trust and Estate Counsel and the National Academy of Elder Law Attorneys. He has been certified as a Specialist in Estate and Trust Law by the State Bar of Arizona‘s Board of Legal Specialization, and he is also a Certified Elder Law Attorney by the National Elder Law Foundation. Robert has a long history of involvement in local, state and national organizations. He is most proud of his instrumental involvement in the Special Needs Alliance, the premier national organization for lawyers dealing with special needs trusts and planning.

Robert has two adult children, two young grandchildren and a wife of over fifty years. He is devoted to all of them. He is also very fond of Rosalind Franklin (his office companion corgi), and his homebound cat Muninn. He just likes people, their pets and their stories.

Elizabeth N.R. Friman


Elizabeth Noble Rollings Friman is a principal and licensed fiduciary at Fleming & Curti, PLC. Elizabeth enjoys estate planning and helping families navigate trust and probate administrations. She is passionate about the fiduciary work that she performs as a trustee, personal representative, guardian, and conservator. Elizabeth works with CPAs, financial professionals, case managers, and medical providers to tailor solutions to complex family challenges. Elizabeth is often called upon to serve as a neutral party so that families can avoid protracted legal conflict. Elizabeth relies on the expertise of her team at Fleming & Curti, and as the Firm approaches its third decade, she is proud of the culture of care and consideration that the Firm embodies. Finding workable solutions to sensitive and complex family challenges is something that Elizabeth and the Fleming & Curti team do well.

Amy F. Matheson


Amy Farrell Matheson has worked as an attorney at Fleming & Curti since 2006. A member of the Southern Arizona Estate Planning Council, she is primarily responsible for estate planning and probate matters.

Amy graduated from Wellesley College with a double major in political science and English. She is an honors graduate of Suffolk University Law School and has been admitted to practice in Arizona, Massachusetts, New York, and the District of Columbia.

Prior to joining Fleming & Curti, Amy worked for American Public Television in Boston, and with the international trade group at White & Case, LLP, in Washington, D.C.

Amy’s husband, Tom, is an astronomer at NOIRLab and the Head of Time Domain Services, whose main project is ANTARES. Sadly, this does not involve actual time travel. Amy’s twin daughters are high school students; Finn, her Irish Red and White Setter, remains a puppy at heart.

Famous people's wills

Matthew M. Mansour


Matthew is a law clerk who recently earned his law degree from the University of Arizona James E. Rogers College of Law. His undergraduate degree is in psychology from the University of California, Santa Barbara. Matthew has had a passion for advocacy in the Tucson community since his time as a law student representative in the Workers’ Rights Clinic. He also has worked in both the Pima County Attorney’s Office and the Pima County Public Defender’s Office. He enjoys playing basketball, caring for his cat, and listening to audiobooks narrated by the authors.