S-18-0262 In re Trust of Fenske
Madison County Court, Judge Donna Ferrell Taylor
Attorneys: David P. Wilson and Jonathan M. Brown (Walentine O’Toole) (Attorneys for Appellants) – Mark D. Fitzgerald (Fitzgerald, Vetter, Temple & Bartell)
Civil: Trust Administration – Removal of Trustee
Proceedings Below: The Appellants, the beneficiaries of the trust of Jack Fenske, unanimously agreed and sought removal of the trustee, Elkhorn Valley Bank & Trust. The desire to remove the trustee was allegedly sought due to the cost of administration fees associated with the trust, and not the result of any wrongdoing by the trustee. The beneficiaries sought to have a family member, who is a member of the Nebraska State Bar administer the trust. During the course of the proceeding testimony indicated that the beneficiaries intended to dissolve the trust and distribute the assets. In resolving this matter in favor of the bank trustee, the trial court concluded in part that the appointment of a family member as trustee with an intention to terminate the trust was inconsistent with the clear statement in the trust that it continue until the death of the Appellants and that the appointment of a successor trustee was contrary to the clear direction in the trust that Elkhorn Valley Bank serve as trustee.
Issues: Whether the court erred in finding “that removal is inconsistent with the clearly stated provisions of the trust” rather than finding that the removal of the trustee would be “inconsistent with the material purpose of the trust” as stated in § 30-3862(b). The Appellants further contend that the court erred in finding that David P Wilson was not qualified as successor trustee and further that the court erred in not finding that the beneficiaries, as petitioners, had met all four requirements of § 30-3862(b)(4).