Article, 0216 UTBJ, Vol. 29, No. 1. 18
| Author | John A. Adams, J. |
| Position | Vol. 29 1 Pg. 18 |
January, 2016
What Utah Trial Judges Have to Say About Trust and Estate Litigation - Survey Results
John A. Adams, J.
Many trust and estate lawsuits carry on far too long because clients either have difficulty objectively viewing the facts of their case or they do not understand the law that will govern the outcome. In addition, many clients start with unrealistic expectations of what they think they should recover from an estate or trust. Clients often set their expectations based on their own perspective of what they think is fair and how they think assets should be divided. What many tend to forget is that the assets are not theirs. The assets belong to someone else - a parent, grandparent, sibling, or other family member. The person who sets up the trust (the trustor) or the person whose will it is (the testator) decides who gets what. It is that simple: the person whose money it is gets to decide. The distribution decisions do not have to be fair, logical, or consistent with the person's prior oral statements. The court's role is to give effect to a validly executed will or trust agreement.
Recurring advice voiced by multiple Utah district court judges in a recent survey on the topic of trust and estate litigation is to talk frankly to clients and help them set realistic expectations of likely outcomes in contested will or trust disputes. Trust and estate assets can be - no, almost certainly will be - greatly diminished in protracted litigation. When that happens, clients are deeply upset and disappointed. They are upset with other family members, perhaps upset with the benefactor who created the trust or will, and disappointed with the lawyers and our legal system.
This past summer, all current Utah district court judges and many retired district court judges were invited to participate in a survey on trust and estate litigation. Twenty-five judges responded - twelve sitting judges and thirteen retired judges. Two of the retired judges either only handled a criminal calendar or had no recollection of having handled any trust or estate cases. Therefore, the responses of those two judges were not included in the analyzed data. The twenty-three surveys analyzed included responses from at least one judge from six of the seven judicial districts in the state (nine from the Third District, six from the Second District, five from the Fourth District, and one each from the First District, Fifth District, and Seventh District). For the most part, the survey questions focused on disputed trust and estate cases that either went to trial or were decided on summary judgment, rather than on the uncontested run-of-the-mill cases that begin on the law and motion probate calendar, guardianships, or conservatorships. A primary goal of the survey was to get a better read on how frequently oft-asserted claims in contested will or trust cases actually prevail.
A challenge to collecting the desired data was that neither district judges nor their clerks track rulings on specific issues in trust and estate cases. As a result, judges' responses were based on their best recollection and estimates. More specifically, the survey asked (1) how many trust and probate estate trials the judges had presided over and (2) the number of trust and probate estate cases they had decided on summary judgment. A number of responses contained an estimate with a range of the number of cases tried or decided on summary judgment. The net result is that even though it is difficult to state precisely an accurate percentage of how frequently certain rulings were made, the combined data for all judges yield percentages that do not vary by more than one percentage point between the high and low estimates in each category.
The eleven retired judges had a combined 191 years of service on the bench - an average of 17.4 years per judge. Together the retired judges estimated they had presided over eighty-one to eighty-three trials involving contested estate or trust matters. They also had decided from sixty-nine to seventy-nine such cases on summary judgment. Interestingly, the twelve sitting judges had a combined 183 years of service - an average of 15.25 years per judge. This group of sitting judges estimated they had presided over eighty-three to ninety trials involving contested estate or trust matters. In addition, they had decided ninety-six other such cases on summary judgment. For the percentages used in this article, the total number of cases that went to trial or were decided on summary judgment were aggregated for both the retired and sitting judges and used as the divisor for the specific number of occurrences reported (the dividend) to come up with the quotient that was then translated into a percentage, rounding up or down.
The survey questions included how often judges (1) found the existence of undue influence, (2) determined that a testator or trustor was incompetent, (3) concluded a no-contest provision was valid and enforceable, (4) imposed a constructive trust, (5) declined to approve or appoint the nominated personal representative, or (6) found a breach of fiduciary duty that warranted discharge of the fiduciary. The short answer is that these types of claims succeed occasionally and some only rarely.
The survey also included more general questions about what percentage of cases are being resolved through the alternative dispute resolution (ADR) process, the range of the hourly rate approved for...
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