In the Matter of Trust T-1 of Mary Faye Trimble, Judith R. Cunningham, Trustee , 2013 Iowa Sup. LEXIS 8 ( 2013 )

IN THE SUPREME COURT OF IOWA
No. 11–1967
Filed January 25, 2013
IN THE MATTER OF TRUST #T-1 OF MARY FAYE TRIMBLE,
JUDITH R. CUNNINGHAM, Trustee,
Appellant.
Appeal from the Iowa District Court for Cherokee County,
Patrick M. Carr, Judge.
Trustee appeals probate court rulings compelling her to provide an
accounting to a beneficiary for a period the settlor was alive and the trust
revocable and requiring her to personally pay legal fees. REVERSED
AND REMANDED WITH INSTRUCTIONS.
Kyle S. Irvin of Corbett, Anderson, Corbett, Vellinga & Irvin, L.L.P.,
Sioux City, for appellant Judith R. Cunningham.
Richard A. Cook of Herrick, Ary, Cook, Cook, Cook & Cook,
Cherokee, for appellee Marylynn Miller.
Margaret D. Van Houten and Jodie C. McDougal of Davis, Brown,
Koehn, Shors & Roberts, P.C., Des Moines, and J. Michael Deege of
Wilson, Deege, Dollar, Despotovich & Riemenschneider,
West Des Moines, for amicus curiae, Iowa Trust Association.
2
WATERMAN, Justice.
In this appeal, we review probate court orders compelling trustee
Judith R. Cunningham to personally pay $54,120 in attorney fees and
costs incurred litigating whether her sister, Marylynn Miller, a
beneficiary, was entitled to an accounting for the period their aunt,
settlor Mary Faye Trimble, was alive and the trust revocable. We also
review the ruling compelling that accounting. This appeal provides an
opportunity to address the criteria for allocating attorney fees under Iowa
Code section 633A.4507 (2009) 1 and to decide the accounting issue—a
question of first impression under our trust code.
We hold the accounting issue is governed by section 633A.3103,
under which the settlor alone is entitled to an accounting for the period
the trust is revocable, even if the beneficiary’s request for the accounting
is made after the trust becomes irrevocable. Accordingly, we reverse the
probate court ruling that Cunningham had a duty to account to Miller
for the period preceding their aunt’s death. Cunningham’s interpretation
of that statute was reasonable and, as we decide today, correct. There is
no evidence Cunningham was guilty of malfeasance, fraud, or abuse.
For the reasons explained below, we reverse the order requiring her to
personally pay the fees and costs incurred litigating that issue. We
remand the case for an order directing the trust to pay Cunningham’s
fees and costs (including her appellate fees) and the fees of the temporary
administrator, with Miller to bear her own fees.
I. Background Facts and Proceedings.
Mary Faye Trimble died in Cherokee, Iowa, on December 16, 2009,
at the age of 104. Trimble’s husband had predeceased her, and they had
1All further references are to the 2009 Code unless otherwise indicated.
3
no children; however, she was survived by family on both her and her
husband’s sides, including several nieces and nephews. This case
involves a revocable trust created by Trimble on September 29, 1999.
From that date until eight months before her death, Trimble acted as
trustee and was the sole beneficiary of the trust. The trust expressly
provided that Trimble during her lifetime was “exclusively entitled to all
income accruing from the Trust Property. No beneficiary named herein
shall have any claim upon any such Trust Income or profits.” Trimble
amended the trust on several occasions to add beneficiaries and modify
the percentages allocated to them and to change the successor trustee.
Trimble’s final amendment to the trust, on April 8, 2009,
substituted Cunningham in the position of trustee. Cunningham had
already been designated to succeed Trimble as trustee at her death.
Although Trimble was still managing the trust’s assets at that time, she
executed the amendment recognizing that she may need assistance with
that task in the future. Trimble continued to receive the trust bank
account statements and write checks from the trust after the
substitution until the end of June when she moved to an assisted living
facility. Trimble’s health continued to decline, eventually requiring her to
move into a nursing home. During the time Cunningham was acting as
trustee, she made verbal reports to Trimble on the status of the trust and
regularly consulted with Trimble regarding investment decisions. No
provision of the trust required an accounting or reports to beneficiaries
while Trimble was alive. As of the date of Trimble’s death, the trust had
eighteen beneficiaries, including Miller and Cunningham.
On February 8, 2010, Miller sent a letter to Cunningham stating:
“As a trust beneficiary of the Mary Faye Trimble Trust #T-1, I kindly
request annual accounts of the trust property, liabilities, receipts, and
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disbursements from its inception to the present.” Cunningham agreed to
account to the beneficiaries for the time period beginning after Trimble’s
death, but declined to do so for the period when Trimble was still alive
and the trust revocable. Miller later limited her request to an accounting
for the period beginning when Cunningham was substituted as trustee,
April 8, 2009, until the present. Cunningham again declined to provide
an accounting for any time when Trimble was still alive.
Miller petitioned the court to intervene in the internal affairs of the
trust on May 12. In her petition, Miller asked the court to order
Cunningham, who was both the trustee and named executor of Trimble’s
estate, “to account for the condition and activities of the Trust since her
appointment on April 8, 2009, or such earlier date as the Court may
direct.” Miller also requested the court to order Cunningham to
reimburse her for her attorney fees incurred in the suit, pursuant to Iowa
Code section 633A.4507. Cunningham filed her answer to Miller’s
petition on May 17. The answer alleged that, under section 633A.3103,
Trimble retained her competency and retained the power to
revoke the Trust in its entirety . . . and therefore . . . no
remainder beneficiaries . . . have the right to compel an
accounting for the period from April 8, 2009 to December 16,
2009 because the Trustee had no duty to account to anyone
other than Mary Faye Trimble for that period.
Fourteen of the sixteen nonparty beneficiaries joined Cunningham’s
answer resisting Miller’s request for an accounting. None joined Miller’s
request for an accounting.
On July 8, Miller served a request for production on Cunningham
seeking:
A complete copy of each Trust accounting prepared by
Judy R. Cunningham as trustee of the above named Trust,
together with copies of all financial records, account
statements, ledgers, notes, and records of any kind from
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which information used in the preparation of such Trust
accounting(s) was obtained, from and after April 8, 2009. In
the event no such accounting has yet been prepared, this
request extends to include all documents from which an
accounting of the condition and activities of the above
named Trust will be prepared, from and after the period
beginning April 8, 2009.
Cunningham objected to this discovery request, as well as two others.
Miller filed a motion to compel on September 2. Cunningham filed a
resistance. In her motion, Miller suggested for the first time that Trimble
may have been incompetent during this time period and that
Cunningham knew that she was incompetent; however, Miller
acknowledged that “this motion is not the proper time to decide the issue
of Mary Faye Trimble’s competence.” The probate court granted Miller’s
motion to compel on October 13.
In its ruling, the probate court determined Miller had the right to
request the accounting for this time period pursuant to Iowa Code
section 633.4213 (2001) and, for that reason, enforced Miller’s discovery
request. The court determined section 633.4213 (2001) controlled and
that section 633A.3103 (2009) did not apply because, “[a]t the time of
[Miller’s] request, the Trust was irrevocable.” Essentially, the probate
court ruled that a beneficiary could request an accounting for a period
during which the trust was revocable so long as the request was made
after the trust became irrevocable. The probate court made no
determination regarding Trimble’s competency in its ruling.
In a separate action, at Miller’s request, John Wibe was appointed
as the temporary administrator of Trimble’s estate to seek an accounting
for the period preceding Trimble’s death. Wibe joined Miller’s request for
an accounting and also requested copies of the documents the court
ordered Cunningham to produce. In response, Cunningham produced to
Wibe bank records in the same format as had been provided Trimble and
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sought to prevent the trust beneficiaries from gaining access to the
information she provided to Wibe while she sought an interlocutory
appeal from the October 13 decision. We denied Cunningham’s
application for interlocutory appeal.
Cunningham filed her first report on December 28. The report
included an accounting of the trust’s activity from December 16, 2009, to
November 30, 2010. Accompanying the report was “a copy of the bank
statements together with a brief statement concerning the disbursements
from April 2009 through December 16, 2009.” In the statement,
Cunningham asserted for the first time that she did not act as the sole
trustee during this time period, but rather that she acted as Trimble’s
cotrustee. Miller objected to Cunningham’s report on January 13, 2011,
on the basis that it failed to comply with the court’s October 13, 2010
ruling. Cunningham supplemented her report on January 31.
Following a status conference held on May 13, the probate court
ordered the parties to “file briefs directed to the trustee’s duty to account
and the time period during which the trustee must account.” Both
parties filed briefs on the issue. Cunningham filed a partial motion for
summary judgment, which Miller resisted. The probate court denied
Cunningham’s motion on July 1, noting factual disputes, including
whether Trimble was competent during the period Cunningham was
acting as trustee and whether Cunningham was acting as the sole
trustee during the relevant time period. 2 The probate court again
concluded that section 633.4213 (2001) permits beneficiaries, such as
Miller, to request an accounting after the settlor’s death for the predeath
2Miller’s counsel confirmed at oral argument to our court that Trimble’s
competency is not at issue in this appeal.
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period notwithstanding section 633A.3103 (2009), which the court
construed to limit the trustee’s duty to respond to requests made while
the trust is revocable. The probate court also stated, “any disputed facts
. . . regarding Trimble’s competency . . . do not affect this ruling.” The
probate court ordered Cunningham to “file her final report and
accounting, in conformity with this Court’s prior and current orders, on
or before July 30, 2011.”
Cunningham responded by filing her final report on July 28.
Miller objected, perceiving deficiencies. Cunningham supplemented her
final report twice before the probate court’s August 25 hearing on the
final report. Ultimately, as noted by the probate court, there were “no
substantial objections to the accounting rendered by Ms. Cunningham.”
The only disputed issues involved the disposition of some jewelry worth
about $1000, the interpretation of an in terrorem clause, and the
allocation of the attorneys’ fees and costs for the trustee, Miller, and
Wibe. Only the last of these issues is relevant to the present appeal.
Cunningham and Miller testified. The probate court also heard
testimony from Cunningham’s expert witness, Marilyn Hagberg, a vice
president and trust officer at Security National Bank in Sioux City, Iowa.
Hagberg testified that it is the bank’s policy to refuse to provide a
beneficiary with an accounting for a time period during which the trust
was revocable, even if the request were made after the settlor’s death,
unless a court ordered the accounting. She further testified that the
bank trust officers would refuse the request because they “owe a duty of
privacy to the grantor while they were competent and alive.”
The probate court entered an order on November 18 allocating the
various attorney fees and costs incurred during the course of the
proceeding. As of that time, Cunningham, in her capacity as trustee,
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had incurred attorney fees totaling $58,619.50 and costs totaling
$5015.52. Miller had attorney fees of $16,271.68, and Wibe’s fees
totaled $3018.75.
The probate court’s ruling focused on section 633A.4507, which
authorizes “the court, as justice and equity may require, [to] award costs
and expenses, including reasonable attorney fees, to any party, to be
paid by another party or from the trust that is the subject of the
controversy.” The probate court ordered Cunningham to personally pay
the attorney fees of Miller and Wibe, in addition to absorbing a majority
of the attorney fees and costs she incurred defending against the action
brought by Miller. In allocating Cunningham’s own fees, the probate
court ordered Cunningham to personally pay all of the fees and costs the
probate court attributed to her refusal to account, an amount the court
calculated at $34,830.55. The court ordered the remainder of the fees,
$28,804.47, to be paid by the trust.
The probate court’s order thus held Cunningham personally
responsible for attorney fees and costs totaling $54,120.98, while at the
same time acknowledging that “Ms. Cunningham’s position, that she was
not required to account, was at least debatable.” The probate court
concluded “justice and equity” do not require the beneficiaries or Miller,
personally, to bear the expenses because “the question was one which a
prudent trustee should not have debated at all, and certainly not at the
expense of the trust beneficiaries.” The probate court, in allocating fees,
did not rely on any allegation Cunningham mismanaged the trust or
misappropriated any trust property. The probate court noted Miller had
no objection to Cunningham’s accounting once it was finally provided.
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Cunningham appealed the probate court’s decisions regarding the
proper scope of the trustee’s duty and the allocation of the attorney fees
and costs. We retained the appeal.
II. Standard of Review.
Proceedings concerning the internal affairs of a trust, including
proceedings to compel the trustee to account to the beneficiaries are tried
in equity. See Iowa Code § 633A.6101 (giving probate court subject
matter jurisdiction over “proceedings concerning the internal affairs of a
trust”); id. § 633.33 (establishing whether a probate proceeding is tried in
equity or as a law action). Our review of cases tried in equity is de novo.
In re Estate of Myers, 825 N.W.2d 1, 3 (Iowa 2012). When reviewing
factual findings, particularly on the credibility of witnesses, we give
weight to the probate court’s findings, but we are not bound by them. In
re Estate of Roethler, 801 N.W.2d 833, 837 (Iowa 2011). We review the
probate court’s interpretation of statutory provisions for correction of
errors of law. In re Estate of Myers, 825 N.W.2d at 3–4.
Our review of an attorney-fee award is for abuse of discretion. See
In re Estate of Bockwoldt, 814 N.W.2d 215, 221–22 (Iowa 2012); see also
In re Thompson Trust, 801 N.W.2d 23, 25 (Iowa Ct. App. 2011). A court
abuses its discretion when its ruling is based on grounds that are
unreasonable or untenable. Johnson v. Des Moines Metro. Wastewater
Reclamation Auth., 814 N.W.2d 240, 244 (Iowa 2012). The grounds for a
ruling are unreasonable or untenable when they are “ ‘based on an
erroneous application of the law.’ ” Id. (quoting Graber v. City of Ankeny,
616 N.W.2d 633, 638 (Iowa 2000)).
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III. Did the Probate Court Err in Ordering the Trustee To
Account to a Beneficiary for a Period During Which the Trust Was
Revocable?
A. Mootness. We must first consider Miller’s claim that
Cunningham’s appeal of the accounting issue is moot because the
accounting has already been provided. A claim may be rendered moot if
there is a change in the facts or governing law after the action is
commenced. Baker v. City of Iowa City, 750 N.W.2d 93, 97 (Iowa 2008).
“ ‘A case is moot if it no longer presents a justiciable controversy because
the issues involved are academic or nonexistent.’ ” Id. (quoting Perkins v.
Bd. of Supervisors, 636 N.W.2d 58, 64 (Iowa 2001)). An opinion involves
merely academic issues if discussing the issues would have no effect on
the underlying dispute. Id.
We conclude resolution of the accounting issue is not merely of
academic interest because it is inextricably intertwined with the proper
allocation of attorney fees. Cunningham has appealed the probate
court’s ruling on the allocation of the fees. Whether the probate court
erred by ordering her to pay the fees personally depends in part on
whether Cunningham should have been the prevailing party on the
accounting issue. See Atwood v. Atwood, 25 P.3d 936, 947 (Okla. Civ.
App. 2001) (listing the “result obtained by the litigation and prevailing
party concepts” as factors the court should consider when determining
whether justice and equity require a party to pay the fees and costs
incurred in a judicial proceeding involving the administration of a trust).
Accordingly, we hold the accounting issue is not moot.
B. The Accounting Issue. We next address whether the probate
court erred in ruling Cunningham owed Miller an accounting for the
period Trimble was alive and the trust revocable. This is a question of
interpretation of the trust code and specifically the interplay between
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Iowa Code section 633.4213 (2001), which generally provides
beneficiaries with a right to an accounting, and section 633A.3103
(2009), which specifically provides that the trustee’s duties are owed to
the settlor alone while she is alive, competent, and the trust is revocable.
Our goal in interpreting a statute is to give effect to the
legislature’s intent. Freedom Fin. Bank v. Estate of Boesen, 805 N.W.2d
802, 811 (Iowa 2011). We read interrelated statutes together in a
manner that harmonizes them if possible. Id. If the statute is plain and
the meaning unambiguous, we do not resort to the principles of statutory
construction to determine the legislature’s intent. In re Estate of
Bockwoldt, 814 N.W.2d at 223. A statute is ambiguous if reasonable
persons can disagree on the statute’s meaning. Id. We now turn to the
operative statutory language.
The Iowa Trust Code contains six subchapters. The focus of this
case is on the relationship between two of those subchapters, which
contain provisions governing revocable trusts and general provisions
controlling trust administration. See Iowa Code §§ 633A.3101–.3112
(setting forth the provisions governing revocable trusts); id.
§§ 633A.4101–.4707 (setting forth the provisions governing general trust
administration). Section 633A.3103 sets forth the rights of the settlor of
a revocable trust and states in part:
Except to the extent the terms of the trust otherwise
provide, while a trust is revocable, all of the following apply
unless the trustee actually knows the individual holding the
power to revoke the trust is not competent:
1. The holder of the power, and not the beneficiary,
has the rights afforded beneficiaries.
2. The duties of the trustee are owed to the holder of
the power.
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Id. § 633A.3103 (emphasis added). 3 Trimble, as the settlor, is the “holder
of the power” under section 633A.3103.
A trustee, as a fiduciary, owes the trust’s beneficiaries several
duties. One of the duties a trustee owes to the beneficiaries is the duty
to account under section 633.4213(5) (2001). 4 This section states:
A trustee shall prepare and send to the beneficiaries an
account of the trust property, liabilities, receipts, and
disbursements at least annually, at the termination of the
trust, and upon a change of a trustee. An accounting on
behalf of a former trustee shall be prepared by the former
trustee, or if the trustee’s appointment terminated by reason
of death or incapacity, by the former trustee’s personal
representative or guardian or conservator.
Id. § 633.4213(5) (2001). The trustee must provide the accounting to
“[t]he beneficiaries [entitled to vote as] defined in section 633.4105 [and]
[e]ach beneficiary who has delivered to the trustee or other fiduciary a
3By its terms, section 633A.3103 is inapplicable if the trustee actually knows the
settlor is incompetent. “Exactly when a trust settlor ‘loses capacity’ to revoke a
revocable trust, absent a judicial determination of incapacity, is an issue that would
seem to be exceedingly problematic.” Ronald R. Volkmer, Duty Owed by Trustee of
Revocable Trust, 39 Est. Plan. 46, 46 (2012); see also Unif. Trust Code § 603 cmt.
(amended 2004), 7C U.L.A. 554 (2006) (“[B]ecause determining when a settlor is
incapacitated is not always clear, concern has been expressed that it will often be
difficult in a particular case to determine whether the settlor has become incapacitated
and the settlor’s control of the beneficiary’s rights have ceased.”). Miller argued in
probate court that Cunningham may have been aware that Trimble was incompetent in
the months preceding her death; however, the court never decided this issue, and there
was never any formal adjudication of Trimble’s competence. Neither party raised
Trimble’s competency as an issue in this appeal.
4As a general proposition, Iowa’s “trust code applies to all trusts within the
scope of this trust code, regardless of whether the trust was created before, on, or after
July 1, 2000, except as otherwise stated in [the] trust code.” Iowa Code § 633A.1106(1)
(2009). One such exception appears in section 633A.4213. This section, originally
section 633.4213, was amended in 2002 and later transferred to section 633A.4213 in
2005. See 2002 Iowa Acts ch. 1107, § 12; 2005 Iowa Acts ch. 38, § 54. The 2002
amendment included a provision that limits the applicability of the section, as
amended, to trusts created after July 1, 2002. See 2002 Iowa Acts ch. 1107, § 12; see
also Iowa Code § 633A.4213(7). Accordingly, because Trimble created her trust in
September 1999, the pre-2002 version of section 633A.4213, section 633.4213 (2001),
is applicable.
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written request for a copy of the account or other information.” Id.
§ 633.4213(6) (2001). Section 633.4105 defines beneficiaries who are
entitled to vote as “those who are currently entitled or eligible to receive
trust income or a distribution of principal if the trust were to terminate
at the time of the vote.” Id. § 633.4105(3) (2001).
While the trust is revocable and the settlor alive and competent,
however, the trustee owes her duties, including the duty to account, to
the settlor exclusively instead of to the beneficiaries. Id. § 633A.3103(2)
(2009); id. § 633.4213 (2001); see also Hoelscher v. Sandage, 462 N.W.2d
289, 294 (Iowa Ct. App. 1990) (holding beneficiaries of a revocable trust
did not have standing to challenge the actions of a cotrustee while the
trust was still revocable because the beneficiaries lacked sufficient
“interests in the trust property to attack the co-trustees’ actions in
connection with the trust property”); In re Trust of Willcockson, 368
N.W.2d 198, 203 (Iowa Ct. App. 1985) (holding beneficiary whose interest
was contingent upon her mother failing to exercise a general power of
appointment lacked standing to challenge the termination of the trust);
Martin D. Begleiter, In the Code We Trust—Some Trust Law for Iowa at
Last, 49 Drake L. Rev. 165, 217 (2001) (explaining that section
633.3103(2) “covers all the trustee duties provided in the Iowa Trust
Code including the duty to provide notices [under section 633.4213]”).
Thus, it is clear if Miller had requested the accounting while Trimble was
alive and competent, and the trust was revocable, Cunningham could
have refused to provide Miller with an accounting at that time.
Less clear is whether, upon Trimble’s death, Miller as a beneficiary
became entitled to an accounting for the period preceding the death.
That is the fighting issue. We consider to whom the trustee must
account for the period beginning with the trustee’s last accounting to the
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settlor and ending with the settlor’s death. Every revocable trust will
have this so-called “gap period,” unless the settlor acted as trustee until
death (because the settlor presumably accounted to herself) or unless the
settlor died immediately after receiving the trustee’s last accounting,
thus leaving no gap period.
The parties present two conflicting interpretations. Miller’s
interpretation is that the trustee should account to the beneficiaries for
this period because, once the settlor dies and the trust is irrevocable,
section 633A.3101 becomes inoperative and the beneficiaries succeed to
the settlor’s interest in the trust. See Siegel v. Novak, 920 So. 2d 89, 95–
96 (Fla. Dist. Ct. App. 2006) (permitting beneficiaries of a previously
revocable trust to object to the trustee’s accounting for a period during
which the trust was revocable because they have “an interest in the
corpus of the trust after the death of [the settlor]” and because “[w]ithout
this remedy, wrongdoing concealed from a settlor during her lifetime
would be rewarded”); Siegel v. JP Morgan Chase Bank, 71 So. 3d 935,
940 (Fla. Dist. Ct. App. 2011) (reaffirming the holding in Siegel v. Novak
and stating, “Our opinion in Siegel [v. Novak] determined that the
[beneficiaries] did have standing to challenge the trustee’s actions,
because they had a direct interest in the corpus of the trust after [the
settlor’s] death”); see also In re Estate of Giraldin, 290 P.3d 199, 207, 210
(Cal. 2012) (holding that after settlor’s death remainder beneficiaries
have standing to sue trustee for breach of duty to settlor occurring while
the trust was revocable “to the extent that violation harmed the
beneficiaries’ interests”).
Under the competing interpretation urged by Cunningham and
amicus curiae, Iowa Trust Association (ITA), the beneficiary is not
entitled to an accounting for the period during which the settlor was alive
15
and the trust was revocable, even if the accounting is requested after the
settlor’s death. See In re Stephen M. Gunther Revocable Living Trust, 350
S.W.3d 44, 44 (Mo. Ct. App. 2011) (“Because the trustee owed no duty to
the beneficiaries prior to the settlor’s death, they are not entitled to an
accounting of trust transactions prior to that date.”); see also Boyd v.
Boyd, 57 So. 3d 1169, 1177 (La. Ct. App. 2011) (holding trustee had no
duty to account to a beneficiary for a period during which the trust was
revocable, but that the beneficiary had “a right to reasonably request
complete and accurate information as to the nature and amount of the
trust property . . . without regard for the revocability of those trusts”).
Iowa Code section 633A.3103 ambiguously provides “while a trust
is revocable . . . [t]he duties of the trustee are owed to the [settlor]”
without stating whether a beneficiary can obtain an accounting for that
period once the settlor’s death renders the trust irrevocable. In other
words, does the temporal word “while” define the time period that can be
covered by a request for an accounting, or does it only limit when the
request can be made? Because there are two reasonable ways to read
the operative statutory language, we turn to the canons of statutory
construction. When the court is interpreting an ambiguous statute, it
may consider a number of factors, including “[t]he object sought to be
attained . . . [and] the consequences of a particular construction.” Iowa
Code § 4.6(1), (5). We consider both factors as we examine the purposes
of revocable trusts and the duty to account.
1. Purposes of a revocable trust. Although settlors use revocable
trusts instead of wills to dispose of their property at death for a variety of
reasons, two of these reasons—avoiding probate and protecting privacy—
stand out as relevant to our interpretation of whether a beneficiary
should be entitled to receive an accounting for a period during which the
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trust was revocable. See generally Langdon T. Owen, Jr., Objectives of
Revocable Trusts, 17-SEP Utah B.J. 29 (2004) [hereinafter Owen]
(discussing the objectives and purposes of revocable trusts). Settlors
often use a revocable trust instead of a will to dispose of their property at
death as a way to avoid what they perceive to be the costly and
protracted probate process. See id. at 29–30; see also Alan Newman,
Revocable Trusts and the Law of Wills: An Imperfect Fit, 43 Real Prop. Tr.
& Est. L.J. 523, 531–32 (2008) (“Increasingly, the trend is to treat the
remainder beneficiary’s interest in a revocable trust as an expectancy
during the settlor’s lifetime because revocable trusts are used primarily
to avoid estate administration and provide for the management of
property in the event of the settlor’s incapacity without the need for a
court-supervised conservatorship.”).
Miller’s approach increases the burden on trustees by imposing a
retroactive duty to account to multiple beneficiaries for the period the
trust was revocable. As this case shows, conflicts may arise over the
scope and form of the accounting to be provided beneficiaries for the
period the trustee’s duties were owed exclusively to the settlor. In this
case, none of the other beneficiaries joined Miller’s demand for a
predeath accounting, yet Miller sued over what she saw as shortcomings
in the accounting information provided to her by Cunningham for the
period Trimble was alive. Such disputes increase the costs of using
revocable trusts. By contrast, Cunningham’s interpretation avoids the
expense and costs of accounting retroactively to multiple parties with
potentially conflicting interests. Cunningham’s approach better serves
the purpose of using revocable trusts to simplify and lower the cost of
transferring property outside of probate.
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A problem with adopting Cunningham’s position is that it leaves a
gap between the last accounting and the settlor’s death during which no
one is monitoring the trustee’s actions. Miller’s interpretation avoids this
problem by requiring the trustee to account to the beneficiaries for this
gap period. A potential solution to the problem presented by
Cunningham’s approach is to require the trustee to account to the
personal representative of the settlor’s estate. While in some
circumstances this will ensure the trustee’s accountability, this case
highlights a shortcoming with this approach. Cunningham served both
as the trustee and as the personal representative of Trimble’s estate, and
thus, she would be reviewing her own accounting. See In re Malasky,
736 N.Y.S.2d 151, 153 (App. Div. 2002) (“A ‘circumstance in which the
settlor who is the trustee and accountable only to himself is the
equivalent of a provision in which the trustee is accountable to no one.’ ”
(quoting In re Kassover, 476 N.Y.S.2d 763, 764 (Sur. Ct. 1984))). Miller,
therefore, requested the appointment of a temporary administrator to
receive Cunningham’s accounting. Iowa Code section 633.343 allows the
probate court, “for good cause shown, [to] appoint a temporary
administrator . . . for the proper administration of the estate.” Although
the appointment of a temporary administrator increases costs to some
extent, it addresses the gap issue. The temporary administrator is owed
the same accounting to which the settlor was entitled before her death.
Privacy is another reason settlors use revocable trusts, which allow
settlors to have more control over who may gain access to their financial
information than do wills. See Frances H. Foster, Trust Privacy, 93
Cornell L. Rev. 555, 559–66 (2008) [hereinafter Foster] (discussing the
privacy advantages attendant with using a revocable trust instead of a
will). By using a revocable trust, the settlor can keep her financial affairs
18
private because administration occurs outside of the public court
system. See Owen, 17-SEP Utah B.J. at 30. Privacy benefits not only
the settlor, but also the beneficiaries:
Trust privacy can also protect beneficiaries from each
other. Settlors, trustees, or even beneficiaries may not want
certain beneficiaries to know the names and shares of other
beneficiaries for a variety of reasons. In the most typical
case, the goal is to preserve harmony among settlors’
survivors. As literature and human experience have shown,
unequal or inequitable dispositions to family and friends can
lead to jealousy, anger, and pitched battles—both emotional
and legal. Survivors often view a decedent’s last wishes in a
will as not only a dispositive scheme but a statement of
lifelong love and appreciation—or lack thereof—for those
around the decedent.
Foster, 93 Cornell L. Rev. at 576–77 (footnote omitted). The privacy
associated with using a revocable trust may also reduce the tension
between beneficiaries and trustees because “[b]eneficiaries with little or
no knowledge of their rights and interests under a trust are less likely to
assert those rights, second-guess trustee decisions, or insist on an active
role in trust management.” Id. at 575.
Privacy also presents some disadvantages:
[R]ules that protect the privacy of deceased settlors’ trusts
may have a perverse effect. Those rules may harm
vulnerable settlors and benefit “scheming perpetrators
preying on elderly or infirm people . . . utilizing a revocable
trust . . . as a vehicle for their misdeeds.”
Id. at 598 (quoting In re Estate of Tisdale, 655 N.Y.S.2d 809, 812 (Sur.
Ct. 1997)). Beneficiaries face a similar issue as that faced by the settlor
because “[o]nly an informed beneficiary can fulfill this role as monitor
and enforcer of trusts.” Id. at 606. For trustees, “[t]rust privacy . . . can
produce a climate of suspicion and conflict where none needs to exist.”
Id. at 598. And, when the trustee is a family member, the costs can be
personal. Id. at 599. Although these concerns are valid, requiring the
19
trustee to account to the personal representative of the settlor’s estate
would alleviate the potential for abuse, while at the same time preserving
privacy to avoid family discord.
Limiting accountability to the personal representative of the
settlor’s estate helps ensure settlors of revocable trusts receive the same
level of privacy with regard to predeath transactions that is normally
accorded to persons using wills. The privacy concerns at issue in this
case are narrowly focused on the privacy of the settlor before the settlor’s
death. During this time period, the trustee owes duties exclusively to the
settlor and the settlor has full discretion to do what she wishes with her
assets—whether it works to the benefit of the beneficiaries of the trust or
not. See Iowa Code § 633A.3103 (“[W]hile a trust is revocable . . . [t]he
duties of the trustee are owed to the [settlor].”). As a will substitute, a
revocable trust should ensure the settlor receives the same level of
privacy with regard to predeath transactions as that permitted for
testators. See Frances H. Foster, Privacy and the Elusive Quest for
Uniformity in the Law of Trusts, 38 Ariz. St. L.J. 713, 754 (2006)
(acknowledging that some “states have concluded that ‘[b]ecause the
devisees under a will have no right to know of the devise no matter how
incapacitated the settlor, then neither should the beneficiaries of a
revocable trust’ ” (quoting David M. English, The Uniform Trust Code
(2000): Significant Provisions and Policy Issues, 67 Mo. L. Rev. 143, 188
(2002))). Ordinarily, a beneficiary under a will is not given an
opportunity to examine the financial activities of the decedent prior to his
death, even if the testator becomes incapacitated. See Unif. Trust Code
§ 603 cmt. (amended 2004), 7C U.L.A. 554 (2006) (“In the case of a will,
the devisees have no right to know of the dispositions made in their favor
until the testator’s death, whether or not the testator is incapacitated.”).
20
On balance, settlors of a revocable trust should be entitled to the same
privacy for predeath transactions as they would if they used a will.
We conclude the settlor’s interest in privacy favors a bright-line
rule denying beneficiaries the right to an accounting for the period when
the trust is revocable.
2. Duty to account. We next consider the primary purpose
underlying the duty to account. This duty
deters the trustee from committing a breach of fiduciary duty
by giving the beneficiaries access to the information needed
to monitor the trustee’s performance. The duty also assists
the beneficiaries in remedying a fiduciary breach after it has
occurred by giving them the information needed to prove the
breach.
T.P. Gallanis, The Trustee’s Duty to Inform, 85 N.C. L. Rev. 1595, 1617
(2007). Implicit in the protective nature of the duty to account is that the
beneficiaries will be able to take action against the trustee should they
discover the trustee has breached one of its duties. For a revocable
trust, however, the trustee’s duties of prudence, loyalty, and impartiality
are owed solely to the settlor while the settlor is still alive and competent.
See Iowa Code § 633A.3103(2) (2009); id. § 633.4213 (2001). Thus, even
if a beneficiary were provided an accounting and discovered some
transaction with which she disagreed, the beneficiary may be without
standing to challenge that transaction. Cf. Hoelscher, 462 N.W.2d at 294
(holding beneficiaries of a revocable trust did not have standing to
challenge the actions of a cotrustee while the trust was still revocable); In
re Trust of Willcockson, 368 N.W.2d at 203 (holding beneficiary whose
interest was contingent upon her mother failing to exercise a general
power of appointment lacked standing to challenge the termination of the
trust). Further, allowing beneficiaries to have an accounting for a time
period during which the trustee owed the duty to someone else would
21
open the door to beneficiary challenges to transactions that were
beneficial to the settlor, but that may not have been beneficial to the
future beneficiaries. See, e.g., Hoelscher, 462 N.W.2d at 294; In re Trust
of Willcockson, 368 N.W.2d at 203; Bryant v. Norwest Bank of Iowa, N.A.,
No. 00–1568, 2001 WL 1658906, at *3 (Iowa Ct. App. Dec. 28, 2001)
(holding beneficiary of a revocable trust could not enforce a previous
version of the trust because his “interest in the trust was too contingent
to constitute a legal interest sufficient to establish standing”). Although
the settlor and the beneficiaries have convergent interests, their interests
also diverge in certain respects. Settlors, especially those who are faced
with the high costs of end-of-life care, tend to benefit most from more
liquid short-term investments, which often have lower returns. The
investment strategy for beneficiaries, on the other hand, may differ
substantially.
Nevertheless, a divided California Supreme Court recently held
that under California law both remainder beneficiaries and the settlor’s
successor have standing to sue the trustee for breaches of duty owed to
the settlor while the trust was revocable. In re Estate of Giraldin, 290
P.3d at 203–11. The trustee in that case appealed a trial court judgment
against him for breach of fiduciary duty in an action brought by
remainder beneficiaries challenging investment decisions made while the
settlor was alive. Id. at 202–03. Specifically, the trustee, who was a twin
son of the settlor, lost nearly $4 million of trust funds invested in his
twin brother’s business while their settlor–father was still alive, although
allegedly incompetent. Id. at 201–03. Several remainder beneficiaries,
some of the settlor’s other children, sued the trustee over that failed
investment. Id. at 202. The court of appeals reversed the trial court
judgment, holding the beneficiaries lacked standing to challenge the
22
trustee’s actions or compel an accounting for the period the settlor was
alive. Id. at 203. The California Supreme Court granted review to decide
the standing issue. Id.
The California Supreme Court recognized that the trustee’s duties
were owed to the settlor while he was alive and that the settlor’s death
did not “retroactively” impose duties to the beneficiaries. Id. at 207. The
high court noted the deceased settlor’s personal representative or
successor had standing to sue the trustee for breaches that occurred
while the settlor was alive. Id. at 209–10. But, the court’s majority went
on to hold such standing was not exclusive and that the remainder
beneficiaries also could sue to the extent they were harmed by the
trustee’s breach of duty owed the settlor. Id. at 210–11. Two justices
dissented, concluding only the deceased settlor’s personal representative
or successor could sue on the decedent’s behalf. Id. at 211 (Kennard, J.,
dissenting). The dissent noted that limiting the right to sue to the
settlor’s successor
would avoid the conflict of interest inherent in the majority’s
approach of also allowing the beneficiaries to sue: The suing
beneficiaries generally have a personal interest in
maximizing their share of the inheritance. That interest may
be at odds with what the decedent had in mind, as this case
illustrates.
Id. at 212.
We share the dissent’s concern over potentially conflicting claims
against trustees if both beneficiaries and the deceased settlor’s successor
are allowed to sue to challenge decisions made while the trust was
revocable. In any event, In re Estate of Giraldin is distinguishable
because in that case the beneficiaries alleged and the trial court found
the beneficiaries were damaged by the trustee’s breach of duty to the
settlor while the trust was revocable. See id. at 203. By contrast, Miller
23
never alleged Cunningham breached her fiduciary duties or harmed the
beneficiaries.
Cunningham relies on a case directly on point: In re Stephen M.
Gunther Revocable Living Trust. In that case, the beneficiaries of a
previously revocable trust sought an accounting from the trustee for a
period during which the settlor was not the trustee, but while the trust
was still revocable. In re Stephen M. Gunther Revocable Living Trust, 350
S.W.3d at 45. The court interpreted a statute comparable to Iowa’s:
“ ‘While a trust is revocable and the settlor has capacity to revoke the
trust, rights of the beneficiaries are subject to the control of, and the
duties of the trustee are owed exclusively to, the settlor.’ ” Id. at 46
(quoting Mo. Rev. Stat. § 456.6–603.1 (Supp. 2010) (emphasis added)).
The court ultimately held that, “[b]ecause the trustee owed no duty to
[the] beneficiaries . . . prior to the settlor’s death, they are not entitled to
an accounting of trust transactions prior to that date.” Id. at 47. In
reaching this conclusion the court relied on an Alabama case, Ex parte
Synovus Trust Co., N.A., in which the court found that the beneficiaries of
a presently revocable trust did not have standing to sue the trustee for
breach of fiduciary duty because,
regardless of whether the children suffered injury to their
rights as trust beneficiaries as a result of the [trustee’s]
conduct, those rights were subject to control of the settlors
. . . while the trusts were revocable, and the [trustee] owed
fiduciary duties exclusively to the settlors during that time.
Id. at 46 (citing Ex parte Synovus Trust Co., N.A., 41 So. 3d 70, 74 (Ala.
2009)). We conclude the same result applies under the Iowa Trust Code.
We hold the interpretation advocated by Cunningham and the ITA
is correct. A trustee who owes no accounting to beneficiaries while the
24
trust is revocable should not face retroactive accounting duties for the
same period upon the settlor’s death.
IV. Did the Probate Court Abuse Its Discretion in Requiring
Cunningham to Personally Pay the Attorney Fees Incurred in
Litigating the Accounting Issue?
We next address the probate court’s order requiring Cunningham
to personally pay the attorney fees of Miller and Wibe and a substantial
portion of her own attorney fees and costs incurred in defending against
Miller’s request for an accounting. 5 The probate court relied on Iowa
Code section 633A.4507, which states:
In a judicial proceeding involving the administration of
a trust, the court, as justice and equity may require, may
award costs and expenses, including reasonable attorney
fees, to any party, to be paid by another party or from the
trust that is the subject of the controversy.
This case presents our court’s first opportunity to provide guidance on
fee allocations under this statute. 6
We note no prior reported Iowa decision has required that a trustee
personally pay a beneficiary’s attorney fees without a finding the trustee
breached fiduciary duties, misused trust assets, or committed fraud or
other malfeasance. ITA argues the probate court’s attorney-fee ruling in
this case, if affirmed, would “cause many qualified individuals and
5The probate court approved Cunningham’s application for reimbursement of
$22,600 from the trust for her fiduciary fees incurred in administering the trust. Miller
does not appeal this order of the court.
6Although we have not interpreted this section, our court of appeals has, in two
unpublished decisions, relied on prevailing party concepts in applying this statute. See
Heidecker Farms, Inc. v. Heidecker, Nos. 09–1541, 10–0273, 2010 WL 3894199, at *13
(Iowa Ct. App. Oct. 6, 2010) (“Upon our review, we cannot characterize Erna as the
prevailing party.”); Schade v. Gethmann, No. 09–0617, 2010 WL 1578634, at *12 (Iowa
Ct. App. Apr. 21, 2010) (“In light of our decision that Jack should prevail on the
overriding issue in this case . . . we believe an award of attorneys’ fees to Patricia is not
justified.”).
25
financial institutions to think twice before agreeing to be a
trustee/successor trustee for any trust.”
We begin our analysis by setting forth factors the probate court
should consider in assessing what justice and equity require. We then
apply these factors to the fees at issue in this case. For the reasons that
follow, we conclude the probate court’s decision to hold Cunningham
personally responsible for the fees and costs incurred in this litigation
was an abuse of discretion.
A. Criteria for Allocating Attorney’s Fees Under Section
633A.4507. In applying section 633A.4507, the probate court relied on
the trustee’s duty of prudence to determine whether justice and equity
required the trustee to be personally responsible for her own fees, as well
as those of the beneficiary. Trustees have a duty to “administer the trust
with the reasonable care, skill, and caution as a prudent person would,
by considering the purposes, terms, distribution requirements, and other
circumstances of the trust.” Id. § 633A.4203. A trustee has many duties
apart from the duty of prudence, however, including the duty to “take
reasonable steps to enforce claims of the trust, to defend claims against
the trust, and to defend against actions that may result in a loss to the
trust.” Id. § 633A.4211. Miller correctly notes that trustees have a duty
to “administer the trust solely in the interest of the beneficiaries.” Id.
§ 633A.4202(1). The difficulty here is that for the predeath period at
issue, Cunningham owed her duties to the settlor, Trimble, not the
beneficiaries. See id. § 633A.3103. Although their interests frequently
overlap, the settlor and beneficiaries may also have conflicting interests.
Accordingly, we do not believe the duty of prudence is the best or only
factor the court should consider in determining what is just and
equitable under section 633A.4507.
26
While our court has not yet had the opportunity to interpret the
“justice and equity” standard set forth in section 633A.4507, other courts
have interpreted similar statutory provisions. 7 See, e.g., Atwood, 25 P.3d
at 945–47; In re United Effort Plan Trust, 289 P.3d 408, 414–16 (Utah
2012); Garwood v. Garwood, 233 P.3d 977, 984–88 (Wyo. 2010). The
Atwood court interpreted an equivalent statute to determine whether the
trial court correctly awarded a trustee fees incurred in defending against
the beneficiaries’ claim that he had acted imprudently in failing to
diversify the trust’s assets. Atwood, 25 P.3d at 940, 945–47 (interpreting
Okla. Stat. tit. 60, § 175.57(D) (Supp. 2000)). The Atwood court began
by clarifying that the “justice and equity” standard encompasses two
separate determinations: whether a party is entitled to recover fees and
expenses and whether the fees and expenses were reasonable. Id. at
947. The parties disagreed whether it was necessary to litigate the
accounting issue, but no party otherwise challenges the reasonableness
of the hourly rates or time charges incurred in this case. Accordingly,
although we retain the discretion to sua sponte reduce attorney fees in
an appropriate probate case, we confine our analysis in this case to
whether each party is entitled to recover fees and costs.
On the question of entitlement, the Atwood court stated as follows:
The highly subjective phrase “justice and equity” does
not state specific guidelines or criteria for use by a trial court
or for use by a reviewing court. The phrase connotes
fairness and invites flexibility in order to arrive at what is fair
on a case by case basis. Hence, general criteria drawn from
7Iowa Code section 633A.4507 and the provisions of the other states are based
on section 1004 of the Uniform Trust Code, which contains nearly identical language to
that found in section 633A.4507. See Martin D. Begleiter, Son of the Trust Code—The
Iowa Trust Code After Ten Years, 59 Drake L. Rev. 265, 366 (2011) (stating Iowa Code
section 633A.4507 was based on Uniform Trust Code section 1004). Compare Iowa
Code § 633A.4507, with Unif. Trust Code § 1004, 7C U.L.A. 649 (2006).
27
other types of cases provide nonexclusive guides. These
include (a) reasonableness of the parties’ claims,
contentions, or defenses; (b) unnecessarily prolonging
litigation; (c) relative ability to bear the financial burden; (d)
result obtained by the litigation and prevailing party
concepts; and (e) whether a party has acted in bad faith,
vexatiously, wantonly, or for oppressive reasons in the
bringing or conduct of the litigation.
Id. We hereby adopt these criteria in interpreting what justice and equity
require under section 633A.4507.
Section 633A.4110 provides the court with other factors to
consider when assessing whether a trustee is entitled to seek
reimbursement from the trust. This section states:
A trustee is entitled to be repaid out of the trust
property, with interest as appropriate, for all of the following
expenditures:
1. Expenditures that were properly incurred in the
administration of the trust.
2. To the extent that they benefited the trust,
expenditures that were not properly incurred in the
administration of the trust.
Iowa Code § 633A.4110. In light of this section, we conclude that a court
considering whether to require a trust to pay the fees and costs of the
trustee under section 633A.4507 should first consider whether the
expenditures were properly incurred in the administration of the trust or
otherwise benefited the trust. This approach is consistent with that
taken by courts of other jurisdictions. See Garwood, 233 P.3d at 986
(quoting Atwood factors and collecting cases considering whether fees
and costs incurred benefited the trust). Miller does not contend section
633A.4110 defeats Cunningham’s right to reimbursement, so we move
on to consider section 633A.4507.
B. Application of the Section 633A.4507 Factors. The probate
court ordered Cunningham to personally pay a substantial portion of her
own fees and costs, as well as those of Miller and Wibe, because “the
28
question [of whether she was required to account] was one which a
prudent trustee should not have debated at all, and certainly not at the
expense of the trust beneficiaries.” The probate court abused its
discretion by applying the wrong legal standard.
We will now use the Atwood factors in applying section 633A.4507
to allocate the attorney fees. The first factor is the “reasonableness of the
parties’ claims, contentions, or defenses.” The probate court itself
acknowledged that Cunningham’s position “was at least debatable.”
Because Cunningham ultimately prevailed on the accounting issue, we
find her position was reasonable. Further, because she won the
accounting issue on appeal, the fourth factor, which considers the “result
obtained by the litigation and prevailing party concepts,” similarly weighs
against requiring Cunningham to be personally responsible for the
attorney fees she incurred defending against Miller’s request for an
accounting.
The next factor we examine is whether Cunningham unnecessarily
prolonged the litigation with Miller. This case is not Bleak House, 8 but
Cunningham could have avoided much court time and expense to all
parties had she simply provided her sister the accounting when
requested initially. As the probate court observed, “When finally
rendered, the accounting for the questioned period proved simple,
uncomplicated and straightforward.” Yet, Cunningham was within her
rights to withhold the accounting for the period the trust was revocable,
and the accounting ultimately showed no malfeasance.
8In the book Bleak House, author Charles Dickens tells the story of the
protracted and costly litigation surrounding a testator’s estate. See Charles Dickens,
Bleak House (1853).
29
The probate court first ruled that Cunningham must provide the
requested accounting when it granted Miller’s motion to compel
discovery. Miller’s discovery request asked for either a copy of the
accounting prepared by Cunningham or, “[i]n the event no such
accounting has yet been prepared, . . . all documents from which an
accounting of the condition and activities of the above named Trust will
be prepared.” In response to this discovery request and the court’s
ruling granting Miller’s motion to compel, Cunningham provided Miller
with copies of the documents from which the accounting would be
prepared. At the time of the request, Cunningham had not yet prepared
an accounting for the requested time period, thus, in lieu of the
accounting, Cunningham provided the underlying documents.
The probate court ordered Cunningham to prepare the accounting
in its July 11, 2011 ruling. Cunningham prepared the accounting and
filed it within the court’s deadline. Cunningham should have more
quickly provided the accounting to Wibe, as temporary administrator,
but we do not believe her failure to do so unnecessarily prolonged the
litigation to an extent that warrants requiring her to personally pay
attorney fees.
We next consider Cunningham’s relative ability to bear the
financial burden. Cunningham was sued in her capacity as trustee. As
a trustee, Cunningham has numerous duties as a fiduciary for the trust,
but she does not act as a guarantor for the trust. We give little weight to
this factor in the absence of a breach of a fiduciary duty. Accordingly,
because we conclude Cunningham did not breach her duties, we do not
consider her relative ability to bear the financial burden.
The final factor we consider in determining whether justice and
equity require the trustee to personally bear the costs of litigation is
30
“whether [the trustee] has acted in bad faith, vexatiously, wantonly, or
for oppressive reasons in the bringing or conduct of the litigation.” On
this point the probate court found: “It is more likely than not that
Ms. Cunningham’s refusal to account was . . . grounded on pre-existing
animosity with her sister, Ms. Miller.” The probate court stated:
There was some evidence of a pre-existing estrangement and
discord between Ms. Miller and Ms. Cunningham. This may
have had its genesis, or been aggravated, by Ms. Miller’s
actions surrounding the death of their father. Ms. Miller
appears to have been the sole administrator of her father’s
final estate in Rochester, New York, and Ms. Cunningham
claims, did not account to the satisfaction of
Ms. Cunningham for her doings during and after her father’s
decline and death.
We give weight to the probate court’s finding that Cunningham’s refusal
to provide Miller with the accounting was “grounded on pre-existing
animosity.” The probate court heard the live testimony of Miller and
Cunningham, while we must rely on a cold transcript. Nevertheless,
regardless of her personal motives, Cunningham’s position that no such
accounting was owed was based on a reasonable and ultimately correct
interpretation of the Iowa Trust Code. On our de novo review, we do not
find Cunningham withheld the accounting solely because of animosity
toward Miller. In light of the other factors discussed above, we do not
find any animosity between these sisters justifies requiring Cunningham
to personally pay the fees she incurred in litigating the accounting issue.
We hold the probate court abused its discretion by ordering
Cunningham to personally pay the fees and expenses attributable to
resisting Miller’s request for an accounting. Miller did not show
Cunningham mismanaged the trust or was guilty of fraud, abuse,
inappropriate transfers, or other malfeasance. The trust, and not
Cunningham personally, should pay the fees and costs Cunningham
31
incurred in resisting Miller’s request for an accounting, without any
reduction. Cunningham is also entitled to have the trust pay her
reasonable appellate attorney fees to be determined on remand.
Wibe’s fees, as temporary administrator, present a closer question.
He stepped into Trimble’s shoes and therefore was entitled to an
accounting for the period preceding Trimble’s death. Cunningham
argues she provided Wibe with the records in the same format provided
to Trimble. On our de novo review, we are satisfied the parties
reasonably disagreed over the form of accounting owed. We do not
believe Cunningham acted so unreasonably as to require her to pay
Wibe’s fees. We hold Wibe’s fees should be paid by the trust.
That leaves Miller’s fees. In her petition, Miller requested
reimbursement of her attorney fees from Cunningham, as trustee, and
did not alternatively request the fees be paid from the trust. The probate
court relied on a false premise in directing Cunningham to personally
pay Miller’s fees—that Cunningham wrongfully withheld the predeath
accounting. Our reversal on that issue renders Cunningham the
prevailing party. We also note that fourteen of the sixteen nonparty
beneficiaries took Cunningham’s side of the accounting issue. We hold
Miller must bear her own fees for litigating that issue unsuccessfully,
particularly given her failure to prove any malfeasance, fraud, or abuse
by Cunningham.
V. Conclusion.
For the foregoing reasons, we reverse the order of the probate court
allocating fees and remand with instructions for the probate court to
determine the reasonable appellate attorney fees incurred by
Cunningham and to direct the trust to pay those appellate fees and the
$34,830.55 she previously incurred. The trust shall also pay the
32
reasonable fees incurred by the temporary administrator Wibe of
$3018.75. Miller shall bear her own fees, and the costs of this appeal are
taxed against her.
REVERSED AND REMANDED WITH INSTRUCTIONS.
All justices concur except Zager, J., who takes no part.