What is Aiding and Abetting a Breach of Fiduciary Duty?

Lots of trust beneficiaries know that you can sue your Florida trustee for breach of trust. But can you sue the trustee’s lawyers too? How about those that assist a trustee in doing bad things? A recent appellate opinion discusses what is aiding and abetting a breach of fiduciary duty. We have written about this topic before. To learn more, click HERE, and keep reading.

Getting the Background: what it’s like to be trustee in the State of Florida

Lots of family members and trust beneficiaries take issue with their trustee. Whether or not trustee criticism is justified depends on your case. And your trust. And your attitude.

Candidly, not every trustee is necessarily bad. And a lot of beneficiaries don’t like the idea of asking a trustee for money. Let’s face it: most people want their inheritance “outright“….and not in a trust.

But being a trustee is serious business. A Florida trustee is managing property of another for beneficiaries. She is a fiduciary who is supposed to place the interests of her beneficiaries above everyone else’s–including her own. And, in fairness to trust beneficiaries, the Florida trustee has a lot of duties they owe to beneficiaries. It’s all in the Florida Trust Code.

Trustees are actually not required to serve as trustee. You can decline. Just because you are named in a trust document does not mean you have to be the trustee. Now, let’s get back to those duties a trustee owes its beneficiaries.

If you breach, or “break,” those duties, even one of them, then the trustee can be “guilty” of breach of fiduciary duty. More correctly, a trustee who breaches her duties is liable for damages, interest, attorneys fees and costs. Beneficiaries have a whole list of remedies that a court can apply. You can read all about liability of a trustee in Florida Chapter 736, the Trust Code, by clicking HERE.

Same (or similar) for the “Personal Representative” or “Executor” of an estate. In each case — a Florida probate or trust — someone, the fiduciary, has duties and is in charge property for another. Serious stuff, right? [ To read about Florida Probate Malpractice, you can click HERE. ]

A Recent Appeals Court Opinion — what you need to know

But if a trustee behaves badly, can she just point to others and blame them? Well, I’m not going to get into a discussion of trustee liability or such issues as trustee defenses or issues of delegation here.

What I will say is this: if someone participates in, or helps, a trustee breach their duties, they may be liable. They may be “guilty” of aiding and abetting a breach of fiduciary duty.

So, if you are a trust beneficiary suing your trustee, consider this. A serious trust litigation law firm will probably have a discussion with you about others’ potential liability. And whether or not you want to sue those other parties for this wrong.

Like any lawsuit, you, the plaintiff, bears the burden of introducing evidence and proving your case. You just can’t sue a third party for the sake of making trouble. There needs to be a factual and legal basis for suggesting there is third party liability.

Now, this tort or civil wrong has been around for around 100 years. So, it’s nothing new.

On September 15, 2021, Florida’s 4th District Court of Appeal issued a long opinion. It dealt with a lot of personal jurisdiction topics. But, it also addressed what is aiding and abetting a breach of fiduciary duty. Here are the highlights:

• Aiding and abetting a breach starts with breach of fiduciary duty
• In the trust world, a breach of trust is also a breach of fiduciary duty
• You need a breach of fiduciary duty on the part of your trustee
• The aider or abetter must have knowledge of that breach
• And that aider or abetter must have given some encouragement or substantial assistance with the trustee’s wrongdoing.