Creditors Attacking the Trust 20 Years after Lagae v. Lackner, 0720 COBJ, Vol. 49, No. 7 Pg. 42
Author | BY JAMES R. WALKER |
Position | Vol. 49, 7 [Page 42] |
TRUST AND ESTATE LAW
BY JAMES R. WALKER
Colorado statutes regarding real estate titles held by trusts and trustees have evolved since the original curative statute was enacted in 1921. This article discusses this evolution with a focus on the impact of Lagae v. Lackner.
Twenty years ago, in the spring of 2000, the Colorado Supreme Court released its decision in Lagae v. Lackner.[1] The decision rejected a creditor's attack on a valuable Colorado ranch.
Lagae resolved the immediate creditor challenge, but it has also served as a catalyst for legislative reforms both in Colorado and on the national stage. This article reviews the historic Lagae decision and the subsequent legislative responses.
J.Y. Lagae's Legacy
At the time of his death, J.Y. Lagae's principal asset was a large Douglas County cattle ranch located between Interstate 25 and Castle Pines. The Lagae ranch was held in J.Y. Lagae's individual name.
J.Y.'s
estate documents consisted of a revocable trust and a
pour-over will.
In
fulfillment of J.Y.'s residuary bequest, Ina May prepared
and recorded a personal representative's deed
transferring the ranch to the trust. But rather than
transferring title into the name of the trust, Ina May's
December 31, 1993 deed named the trustees as
grantees.
In a
1998 ruling, the Colorado Court of Appeals upheld the
creditor's theory.
The Context for Lagae
Lagae
involved an innovative statutory reform. Back in the 1920s,
several states, including Colorado, enacted real estate
reform laws so that abstractors could determine the condition
of title from an examination of the records alone.[5] Almost all
of these state law reforms included a fix of the serious
problems associated with "as trustee"
deeds.
"As Trustee" Descriptions
During the 1800s and the early 1900s, it was not uncommon for a grantee to take tide "as trustee" for another. Adding the words "as trustee" was easy, and many old cases noted the practice.
Perhaps the leading "as trustee" case was decided in Massachusetts, where the Court held that "the insertion of the word 'trustee'... does indicate and give notice of a trust" and thus, " [n]o one is at liberty to disregard such notice and to abstain from inquiry for the reason that a trust is frequently simulated or pretended when it really does not exist."[7]
Before Lagae, Colorado Supreme Court cases also recognized and described the practice: "[T]he word 'trustee,'... indicates the intention of the parties that the grantee was to take the title, not in his individual capacity, but in trust for another, though the name of his cestui que trust is not disclosed by the deed."[8]
Although
effective, "as trustee" descriptions were
problematic. Under common law, a trustee had no power
virtue office,
Purchasers and Notice
Under
common law, the concept of notice was critical. A purchaser
who bought "as trustee" property was charged with
notice of the existence of a trust, and a trust beneficiary
could recover the property if the trustee had no power to
sell it. Professor Scott and other commentators believed that
buying from an "as trustee" grantee without
verifying the grantee's sale powers was prima facie
wrongful, because the purchaser should have made inquiry and
was chargeable with notice of everything that a reasonable
inquiry "would appear."
At
common law, if the purchaser did not have notice of a breach
of trust and paid value for the trust property, the buyer
qualified as a bona fide purchaser for value and could
acquire both legal and equitable title. A court's
equitable powers would protect a purchaser against
beneficiary claims.
With this deemed notice, a buyer could not be certain whether "full" title had been acquired. Understandably, purchasers and lenders...
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