|Edward’s v. Investrust, 2021 OK CIV APP 16
|March 24, 2021 (Mandate issued April 21, 2021)
|Oklahoma County (Ogden, J.)
|Route to this Court:
|Appeal from summary adjudication (Rule 1.36)
|Defendant/Appellee was the corporate trustee administering a trust of which Plaintiff/Appellant is beneficiary. The provisions of the trust gave Plaintiff/Appellant the power to remove and replace the trustee at any time. However, the Defendant/Appellee insisted to the beneficiary that the “prudent course of action,” given that the selected replacement trustee was located in Wyoming, was to seek court approval of the “change in situs” of the trust to a state other than Oklahoma.The trust is silent on the beneficiary’s power to change the situs of the trust, but does specifically reference teh Oklahoma Trust Act and names the Oklahoma County-based Oklahoma City Community Foundation as the sole remainder beneficiary (after the Plaintiff/Appellee).
The Plaintiff/Appellant beneficiary sought and was granted, pursuant to an Agreed Order, approval to appoint the Wyoming-based trustee and to change the situs of the trust to Wyoming. The Plaintiff/Appellant then filed a “Motion to deny InvesTrust’s Payment of Attorney’s Fees from the…Trust.” The trial court denied the Plaintiff/Appellant’s requested relief and instead granted Defendant/Appellee InvesTrust’s “Counter Motion for Summary Judgment” approving payment of attorney’s fees from the trust. Plaintiff/Appellant appealed.
|Standard of Review:
|De novo review of summary adjudication.
|Although a beneficiary is given power in the trust to remove the trustee and to appoint a successor trustee, the power is not without limit. Some courts have held that the beneficiary could not use the power to remove-and-replace if the result was to change the situs of the trust to another state. The court sits in equity in matters such as this and will not approve substitution of a trustee if it is not clearly for the good of the trust.
There is no express provision in this trust allowing for a change of situs or a necessary implication of an intent that the situs could be changed. While this does not mean that the situs cannot be changed, given the circumstances presented in this case, the Defendant/Appellee was acting within the scope of its powers and duties as trustee to insist upon court approval of the change of situs of the trust. Thus, the Defendant/Appellee was authorized both by the express terms of the trust and 60 O.S. 2011 § 175.24(A)(9) to employ attorneys at the expense of the trust in this matter.
|3-0. Opinion by Barnes, J. Concur: Wiseman, P.J. and Rapp, J. (sitting by designation)
|Cert was not sought. During the pendency of the appeal, the Appellee filed a “Motion to Compel Compliance with Rule 1.36” because the Petition in Error filed in the case failed to indicate that the appeal from an order granting summary judgment. The Appellant disputed the appeal was an appeal from summary judgment, but the Oklahoma Supreme Court ordered the Appellant to comply with Rule 1.36.