When Family Members Sue Their Trustee: keeping what you say secret and privileged

Are you and your sisters and brothers unhappy with the trustee of your family trust?

Is your family involved with a dispute with your family trustee and trust litigation is the only way to resolve the difference?

Well, here’s a tip for family trust beneficiaries who may have a disagreement with their trustee. Whether you are already embroiled in trust litigation with your family trustee or the winds of trust litigation are merely beginning to blow, it’s important to keep family communications secret. Said another way, what you and your family say and write to each other about the litigation or the trustee should be PRIVILEGED. Put another way, what steps can you take to keep the trustee from knowing what each of you are thinking and saying?

Tell your trust litigator that you and your family members want a COMMON INTEREST AGREEMENT or JOINT DEFENSE AGREEMENT.

Talk to your trust lawyer right away. You don’t want the trustee’s lawyers getting a hold of your emails to your sisters or brothers where you tell them what your thoughts are about the dispute. Be careful : in today’s society, we all use emails to communicate, along with text messaging. Don’t text about what your lawyers are doing next or what their strategy is. Don’t email your thoughts about what you think your case’s weaknesses are.

Be particularly careful if not all your family members are represented by the same trust lawyer. Consider this: many times in family trust litigation, not all trust beneficiaries join the lawsuit. They are all not plaintiffs. Also, there may be trust beneficiaries who are minors, or who are not even born yet, who are represented by a guardian ad litem appointed by the court. (Consider the long term family trust that benefits “descendants” or “heirs” in a so called mulit-generational “Dynasty Trust.”) Where does the guardian ad litem stand on suing the trustee? If he or she is communicating with you or other trust beneficiaries, does it make sense to enter into a joint agreement with the guardian so that what you say between each other is protected? Some trust lawyers recommend that absolutely no emails or written communications take place among the beneficiaries: they suggest you only speak about the matter, not put anything in writing.

Another point: if you are in the middle of trust litigation, don’t post on social media. Don’t tweet or post on Facebook what’s going on, or what may go on, in the trust litigation.

Try to address the issue of communicating among trust beneficiaries at the beginning. It may make the difference in the end.