Serving As Trustee of a Testamentary Trust

Opinion 2010-1

Dear _________:

This letter is in response to your inquiry of January 27, 2010. You requested the Committee's opinion as to whether you may serve as the trustee of a testamentary trust created by your "aunt". In 2003, you sought the opinion of this Committee as to whether you could serve as the executrix of the estate of the same aunt. At that time, the relevant facts you provided were that the "aunt" was the ex-wife of your maternal uncle. When you were a youth, your family celebrated numerous holidays at the home of your uncle and aunt. After their divorce, you kept in touch with this aunt and have always referred to her as your aunt. When your mother died, this aunt attended your mother's memorial service and you have recently attended the funerals of your aunt's second husband and son. You visited your aunt several times a year, and during 2003, you were in weekly contact with her. You work at a Probate and Family Court in a different county than the county where your aunt lived before she died.(1)

At present, you continue to work at a Probate and Family Court in a different county than the county where your aunt lived. What has changed since the 2003 request for an opinion is that your aunt passed away in late September 2009 and you were appointed as the executrix by the _________ Probate and Family Court. The will was not contested. You were surprised to discover after she died that your aunt nominated you as the trustee to a testamentary trust that was established for her grandson, your first cousin's son. The grandson is now 15 years old and lives in New Hampshire . The trust continues until he turns 25 years old.

You also have recently learned that there is a problem with the assets in the estate. In your aunt's will, she clearly disinherited her son. Discrepancies were determined in an annuity account that appears to benefit the son whom she intended to disinherit. You have counsel representing you and, in your capacity as executrix, you may be filing an equity action at the __________ Probate and Family Court to address this discrepancy. The trust will have to be a party to this action as well. The estate and the trust have the same interest in pursuing this matter so there does not appear to be any conflict in duties if you were to serve as both executrix and trustee of the testamentary trust. It is possible that the equity action and your proposed appointment as trustee might be contested by the disinherited son.

You have indicated that you feel compelled to carry out your aunt's wishes and there is no other family member whom she trusted. She had no sisters, brothers, nieces or nephews.

It is the Committee's opinion that you may serve as a trustee under the will and the testamentary trust created by this aunt. The factual background you have provided has satisfied the definition of "close familial relationship" required by Canon 5(D)(1). This Canon permits a Clerk-Magistrate to serve in a fiduciary capacity for a member of his or her family, or "other relative or person with whom the Clerk-Magistrate maintains or maintained a close familial relationship". We do not view your aunt's death as changing the nature of the relationship previously determined to be within the code. Canon 5(D)(1) permits a Clerk-Magistrate to serve in a fiduciary capacity for a member of his or her family, or "other relative or person with whom the Clerk-Magistrate maintains or maintained a close familial relationship".

Please note that Canon 5(D)(1)(a) provides that a Clerk-Magistrate shall not serve in any fiduciary capacity if it is likely that as a fiduciary the Clerk-Magistrate will be engaged in proceedings that would ordinarily come before the Clerk-Magistrate in a decision-making capacity. Since you work in a different county than the county where your aunt lived, it would seem unlikely that there would be any conflict with your official duties. We point out that Canon 5(D)(1)(a) would require you to resign as executrix and trustee if the estate "becomes involved in adversary proceedings in the court in which [you are] serving."

Further, it does not facially appear that one serving as an assistant judicial case manager who is a party in an action in one's personal capacity and, therefore, subject to examination and cross-examination in that action, is in a position of greater conflict or other risk to one's duties under the Canons than any other member of the Court system. Nonetheless, you should be aware of Canon 3 that states, in material part, that "[a] Clerk- Magistrate shall devote the entire time during normal court hours to the duties of his or her office, but may, according to established procedures, participate during that time in law related educational and public service activities" and Canon 4 that states, in material part, that "[a] Clerk-Magistrate shall perform the duties of Clerk-Magistrate impartially and should act at all times in a manner that promotes public confidence in the integrity and impartiality of the judicial branch of government.

(A) Appearance of Impartiality. A Clerk-Magistrate shall not convey the impression that any person is in a special position to influence the Clerk-Magistrate, and the Clerk-Magistrate should discourage others from suggesting that they are in a position to exert such influence.

(B) Personal Affairs. A Clerk-Magistrate shall conduct personal affairs in such a way as not to cause public disrespect for the court and the judicial system. A Clerk-Magistrate shall not engage in activities nor incur obligations which would tend to detract from the dignity of the Clerk-Magistrate's office or interfere or appear to interfere with official duty. A Clerk-Magistrate shall not engage in outside activities which would cast doubt on his or her capacity to decide impartially any issue that may come before the Clerk-Magistrate in any official capacity."

We hope that this letter is of assistance to you.
 

_____________________
1 In 2003, you worked under the title of an "Assistant Register". You presently work under the title of an Assistant Judicial Case Manager. The change in title since 2003 was, we are informed, a legislative act and you are considered, for the purpose of this opinion, to be serving with the same duties and responsibilities as an Assistant Register. See Opinion 2007- 4 as to application of Canons to Assistant Judicial Case Managers.