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REPROBATE

SCOPE OF STATUTES OF LIMITATION?

17 posts in this topic

I am pro per [no attorney will take case] and suspect malfeasance.  Happend to be in a probate setting. 

 

STATUTE OF LIMITATIONS QUESTION:

 

After 1 year (timing) opposing counsel (OC) initiated a petition to remove Trustee.

In that petition OC cited, say, Trust Amendment 3 (A3) paragraphs 2 & 3 requiring Trustee to (timely)  perform acts not yet performed.. 

 

At a related hearing to suspend Trustee until the remove petition was resolved,  part of Trustee's defense was that there had arisen ambiguities (conflicts) between A3 2 & 3 and A3 6,7,&12 -- and that A3 ambiguity was reinforced by ambiguity between A3 and Amendment 4 paragraph 9.  Trustee argued that these ambiguities had to be resolved (he had attempted this with the parties before litigation was commenced by OC) and adjudicated before A3 2 & 3 could be properly executed -- Trustee suggested court ordered arbitration as mutual remedy.

 

In dispositive motion for Summary Judgment by OC, OC Claimed [A.R.S. 14-10604(A) Attached at end] created a STATUTE OF LIMITATION that prohibited Contesting validity of the Trust.  [Thus that the issue of ambiguity was mooted and could not be referenced by Trustee or considered in hearings or at trial].

 

Clearly Trustee could not BRING ACTION after Statute of limitations.  Trustee had sought to avoid court and thus preserve assets for all beneficiaries.  [But, OC chose litigation].

 

As a defense and request for recognition by the Court of the ambiguity and receive Court-ordered resolution of these factual issues brought to the court through OC initiated litigation.

 

 Even though Trustee can noi longer bring an action on Trust Validity --

 

1) Can he properly, still raise the defense in hearings or at trial?

 

2) Can the Court consider and remedy the problem with the Trust once it has come to his attention?

 

LAW  A.R.S

 

14-10604. Limitation on actions contesting validity or revocable trust; distribution of trust property

A. A person may commence a judicial proceeding to contest the validity of a trust that was revocable at the settlor's death within the earlier of:

1. One year after the settlor's death.

2. Four months after the trustee sent the person a copy of the trust instrument and a notice informing the person of the trust's existence, of the trustee's name and address and of the time allowed for commencing a proceeding.

 

1-215. Definitions

In the statutes and laws of this state, unless the context otherwise requires:

1. "Action" includes any matter or proceeding in a court, civil or criminal.

 

 

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7 minutes ago, REPROBATE said:

I am pro per [no attorney will take case] and suspect malfeasance.

 

Malfeasance on whose part?

 

 

8 minutes ago, REPROBATE said:

After 1 year (timing) opposing counsel (OC) initiated a petition to remove Trustee.

 

One year after what?  Whom does "opposing counsel" represent?  Are you the trustee?

 

 

11 minutes ago, REPROBATE said:

[Thus that the issue of ambiguity was mooted and could not be referenced by Trustee or considered in hearings or at trial].

 

This doesn't make any sense.

 

 

11 minutes ago, REPROBATE said:

Clearly Trustee could not BRING ACTION after Statute of limitations.

 

A statute of limitations does not prevent the bringing of actions.  Rather, a statute of limitations merely creates a possible defense to an action.

 

 

12 minutes ago, REPROBATE said:

As a defense and request for recognition by the Court of the ambiguity and receive Court-ordered resolution of these factual issues brought to the court through OC initiated litigation.

 

Huh?

 

 

13 minutes ago, REPROBATE said:

Can he properly, still raise the defense in hearings or at trial?

 

What defense?

 

 

13 minutes ago, REPROBATE said:

Can the Court consider and remedy the problem with the Trust once it has come to his attention?

 

What problem?  Whose attention?

 

As far as I can understand your post, a lawyer representing some unidentified client (presumably a beneficiary to the trust) filed a petition to remove the trustee of a trust.  You didn't tell us on what basis the lawyer's client is seeking to have the trustee removed.  In defending against that petition, the trustee has made some sort of argument about ambiguities in the trust instrument.  Is all that correct?  If so, then I don't see what the statute of limitations on an action to contest the validity of a trust has to do with anything.

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Response is, evidently, attached as a Microsoft Word file.

 

Perhaps I should have placed it in-line, but I am new to the FindLaw system and do not know about posting.

 

Edited by FindLaw_JY
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Brief additional clarification to pg1067

 

Part of the initial issue of "ambiguity", is that, without ambiguity, Trust issues must be restricted to what is written in the 'four corners of' the Trust document.  And, to cause corrections or to introduce fraud, or to move to Trial, it is first necessary to escape the limitations of the four corners.

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22 hours ago, REPROBATE said:

Response is, evidently, attached as a Microsoft Word file.

 

Perhaps I should have placed it in-line, but I am new to the FindLaw system and do not know about posting.

 

The link didn't work, so I had no more info than I had previously.

Edited by FindLaw_JY
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Most people who correspond on the internet are unwilling to open files posted by people they do not know.  doc and docx files files, in particular, can contain malicious macros that execute when the file is opened.  For that reason I, personally, will not open a doc, docx, xls, etc. file posted by someone I don't know.   Post the relevant facts as a post and people may read it.

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Note to "REPROBATE":  It's not that you made some error with the link.  The "attach files" thing never works at this site (and I agree with "RetiredinVA's" cautionary comments).

 

Just answer the questions asked (preferably by highlighting the questions and then clicking the "Quote this" link that pops up).  Or provide a simple narrative that makes it clear who did what and when events occurred in relation to each other - e.g., "In December 2016, John Smith created a revocable trust, the purpose of which was to distribute his assets upon his death and, thereby, avoid probate.  John nominated Susan Jones to be trustee.  In July 2017, Robert Smith (through his attorney) filed a petition to remove Susan as trustee.  Robert's petition was based on [allegation], [allegation] and [allegation].  In response to the petition, Susan claimed [rebuttal]."  Etc., etc.

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REPLY to RetiredinVA  and thanks for the info  Thanks, also to pg1067 for close analysis of original posting and breakdown of questions.

 

A cut and past version follows:

 

RESPONSE TO pg1067

Malfeasance on whose part? 

On the part of the Petitioning beneficiary.

I am Trustee.

In a hearing to suspend Trustee’s powers until the petition to remove was heard and finalized.  Trustee raised the issues of malfeasance and “FRAUD” to the Court.

The Court memorialized Trustee’s testimony [this part] as:

CONTINUING

One year after what?  Whom does "opposing counsel" represent?  Are you the trustee?

One year after the passing of our mother [Testator] and my assuming the active role of Trustee.

I am the Trustee.  Opposing Counsel represents the other of the two remaining beneficiaries (after others distributions were satisfied) – my sister.

CONTINUING

[Thus that the issue of ambiguity was mooted and could not be referenced by Trustee or considered in hearings or at trial].  

This doesn't make any sense.

The consequence on the assertions of ambiguity is seen in the Court’s reference to it (above). 

In OC’s Motion for Judgment on the Pleadings, OC says:

 

CONTINUING

A statute of limitations does not prevent the bringing of actions.  Rather, a statute of limitations merely creates a possible defense to an action.

 

In any event, while Trustee was not bringing an action [I don’t think – objecting to a hearing may be initiation]:  It can be seen that OC is claiming that Trustee cannot raise the issue of ambiguity in the Trust document before the court.

CONTINUING

As a defense and request for recognition by the Court of the ambiguity and receive Court-ordered resolution of these factual issues brought to the court through OC initiated litigation.

  Huh?

OC is saying Trustee cannot bring the ambiguity issue before the court and thus must be summary judged against.

CONTINUING

Can he properly, still raise the defense in hearings or at trial?

  What defense?

The defense that some distributions have not been made because of the ambiguity between Testator’s wishes in one part of the Trust and Testator’s wishes in another part of the Trust.  Thus that Trustee did not act improperly by seeking resolution of the ambiguity before the irreversible distribution of assets.

 

CONTINUING

Can the Court consider and remedy the problem with the Trust once it has come to his attention?

  What problem?  Whose attention?

The problem is the [claimed] existence of ambiguities between portions of the Trust document that Trustee feels should be resolved before irreversible distribution.

“WHOSE”: ‘Can the Court consider and remedy … once it has come to his (the Court’s) attention.

 

CONTINUING

As far as I can understand your post, a lawyer representing some unidentified client (presumably a beneficiary to the trust) filed a petition to remove the trustee of a trust.  You didn't tell us on what basis the lawyer's client is seeking to have the trustee removed.  In defending against that petition, the trustee has made some sort of argument about ambiguities in the trust instrument.  Is all that correct?  If so, then I don't see what the statute of limitations on an action to contest the validity of a trust has to do with anything

OC is seeking to remove the Trustee for not making the distributions Trustee feels contain ambiguities and require clarification and resolution before distribution.

OC’s use of the Statute of Limitations to make it impossible to question the validity of the Trust is seen in OC’s statement (above) in OC’s motion for summary judgment [or Motion for Judgment on the Pleadings].  It is central to OC’s effort to prevent the scheduled trial – and to bi-pass consideration of the issue of ambiguity and to bypass consideration of the issue of [possible] fraud by OC’s client against the Testator (her mother).   .. And, perhaps, to, thus, use [the law] the Statute of limitations to suborn or support the commission of Fraud.

 

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I'm still not at all following what's going on here.  If the trust is of any significant value, then you are making a MASSIVE mistake by not retaining counsel to represent you.  Your lawyer's fees would be payable by the trust.

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PDF CUTS -- CENTRAL FACTS -- DID NOT PASTE HAVE TO TRANSCRIBE IT [THESE ARE THE HEART OF THE PREVIOUS POST

 

:The Court memorialized Trustee’s testimony [this part] as:

 

THE COURT: And so is it your position that because of fraud in the trust, that the fraud -- the trust should be ripped up and thrown away, that I shouldn't give it any --

THE WITNESS: No. What?

THE COURT: -- authority  or what?

THE WITNESS: In the last document I -- in the -- in the first document I submitted, I suggested that we build a baseline of what he financial facts were outside the court and then resolve what seems to be appropriate based on the financial realities.

 

In the second -- in the last thing I submitted, of the last -- yeah, the last thing submitted on the four corners, the four corners of the document, I suggested since -- it there -- to the extent there was ambiguity, that a -- we clarify the issues in the trust, the meaning of those five separate areas -- the 10th and 12th amendments, and then that an arbitrator be appointed by the trust -- the judge and -- by the court and -- under certain guidelines, and that the -- then the arbitrator could gather data and come up with a suggestion as to what was appropriate.

THE COURT: Okay. Thank you.

 

The consequence on the assertions of ambiguity is seen in the Court’s reference to it (above).  In OC’s Motion for Judgment on the Pleadings, OC says:

1. [REPROBATE] Cannot Contest the Validity of Survivor's Trust A. and any Amendments thereto, as the Statute of Limitations has Expired.

According to A.R.S. 14-10604(A), a person may commence a judicial proceeding to contest the validity of a trust that was revocable at settlor's death, so long as it occurs within either of one (1) year after the settlor's death or four (4) months after the trustee sent the person a copy of the trust instrument and a notice informing the person of the trust's existence, of the trustee's name and address, and the time allowed for commencing a

 

 

 

 

 

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reply to pg1067

 

on MASSIVE MISTAKE:

 

I have contacted at least 12 top Trust attorneys in Tucson, and an-online search company who has probate representatives on agreement in Tucson.

 

All say the same thing.  That they do not represent me (decent technical statement).  And, that, under the Ethics of the Arizona Bar association, they are prohibited from taking my case.

 

I HAVE A FOOL FOR A CLIENT, BUT THE ONLY ONE WHO WILL REPERSENT ME IS THAT FOOL -- OTHERWISE I JUST LOSE FOR CERTAIN.

 

Similarly, I cannot even obtain an assisting or consulting attorney.  For the only such attorneys are limited by the State to and allowed by the Arizona bar to only the area of Family law.

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Personally, I give up.  Throughout your posts you obstinately decline or refuse to state what the h--- is the problem you are having here.  You are apparently Trustee of a trust created by your parent(s).  For some reason you are not making distributions to one or more beneficiaries because you believe there are ambiguities between certain provisions in the trustee document.  The normal remedy for that problem is to seek the advice of the court.  Instead you are trying to argue issues that are inappropriate, such as the statute of limitations.  You need to hire a lawyer and not argue with the lawyer about what should happen.

 

PG1067 suggested you backtrack and create a posting in a format that he proposed.  Please take his advice or stop.

 

 

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14 hours ago, RetiredinVA said:

Personally, I give up.

 

Ditto.

 

"REPROBATE":  You continue to try and drop us into the middle of your story, and your writing style is, at best, difficult to understand (you seem to want to drop parenthetical comments in the middle of almost every sentence), and that makes reading what you write difficult or impossible to follow.  If you can't find someone in Tucson to represent you, then look outside that city.

 

P.S. There's not such thing as the "Arizona Bar [A]ssociation," and if some rule of the Arizona State Bar is really preventing lawyers from taking your case, then that suggests one or more other issues you haven't even mentioned that likely complicate this matter even further.

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TO; RetiredinVA et al  -- and, while writing this -- I received a post from pg1067 which I will respond to also and thanks to FindLaw_JY for removing the offending file link. :) 

 

First, Thanks to all who take the time to assist others, including me, in this forum.

 

13 hours ago, RetiredinVA said:

Throughout your posts you obstinately decline or refuse to state what the h--- is the problem you are having here.

 

The problem is that I am trying to reach arbitration on the issues in and surrounding the Trust.  My sister hijacked our 102 year old mother -- preying upon her emotions and physical feebleness ("I no longer have the strength to fight").  I have zero dollars, am 80 years old and do not qualify for Social Security or Medicare.  While I am medically cleared to handle the Trustee function, I am still, and under Arizona law, disabled and "seriously mentally ill".  

 

My sister has 'infinite' dollars: what our mother's attorney called "disproportionate resources": She has Medicare, maximum Social Security, both from a previous marriage, a pre-nup (and residual should her husband die) worth about $2,000,000, and, at least $120,000 of her own as 'pocket change'.  And, her husband is a senior vice president of a subsidiary of a major financial institution, where the subsidiary has about $1,000,000,000,000 under management  -- and is substantially financially independent for life. 

 

Withheld from the then acting Trustee (our mother) was the fact that (with fracking) the income from her share in an oil well that she relied upon (and was given to rely upon when signing her 12th Amendment) to 1) provide necessary care for her son and, 2) to be proportionately "fair" to her daughter plummeted from about $6,500 a month to about $1,500 a month (where her son could not live with a $1,000 + a month buy-in to Medicare outflow and all the other expenses associated in normal living on $750 a month. There is also some capital that under current expenditures would last about 5 years; but where son, also, had a derelict car and was facing $40,000 in non-covered dentistry and $20,000 in non-covered ear surgery, etc. which would also come off the top of the capital portion.) 

 

If the brother lived to the age of his mother, then the net-present-value of the mother's estate has dropped 50% since her 12th amendment.  And, she had not been informed of this by her attorney who suggested the son also leave her in the dark in her last years so that she would not live with the knowledge that her son would not be cared for after her death.   This due to the fact that the attorney was concerned, under her repeated requests to increase the funds directed to her son -- because 'due to the "disproportionate resources" of the sister a change at the mother's age might not hold up.  

 

GOOD SON complied:  Knowing that staying silent on his mother's behalf might cost him lifetime security and perhaps his life.  "Good son", also, in that he had cared for his disabled mother 8 to 24 hours a day for the last 9 years of her life -- saving her life twice, and, through personal care, extending her life for at least 4 years when she required assistance and supervision (3 hours a meal) to eat due to an, inoperable due to age, Zenker's diverticulum that almost completely (and sometimes completely) blocked her esophagus -- preventing the ingestion of food.  During the 9 years it is estimated that her daughter (living near her mother about one-third of the year) visited the mother between 24 and 48 hours in the 9 years.  During this period he also looked after his mother's spirit and sense of independence associating her with good persons and high achievers, PhD's, theoretical physicists including CERN-SLAC-Fermi lab, micro-biologists including Albert Einstein College of Medicine, practical and academic Physicians of all kinds, humanists and historians, scholars of all forms, attorneys and judges including two from the Pima Superior Court and one Justice of the Arizona Supreme Court, constitutional law specialists, environmental law specialists, nuclear energy principals, philosophers, artists, and business practitioner's until the week of her death. [After death my Sister had the ashes and did not inform me mother's funeral.] 

 

The sister and her husband admitted knowing that the Trust funds were now insufficient for the brother to survive on; and commented on that to multiple persons.

 

In a meeting where the son was excluded, between sister, her husband, the mother, and her attorney -- to bring the "disproportionate resources" power vis-à-vis the Trustee (mother) for some direct resolution: 

After that meeting,brother, now trustee-respondent, was 1) first criticized by the brother-in-law for submitting the mother to the cruelty of the meeting [so it must have been made unwelcome and unpleasant for the mother], 2) told the brother that the mother-trustee had requested "twice" to convey the entire trust to her son, 3) that she was not comforted or assisted by informing her of the drop in the value of the estate so she would know that she was on the right track, and that both husband and sister continued to withhold this from her, 4) that a half hour before the sister and husband had advised mother-trustee's attorney that they knew that the trust resources would be insufficient for the brother-son, and 5) that mother was confronted with extreme emotional duress in that after having the courage to confront her daughter with removal as beneficiary sister told brother, "after I stared her in the face for an hour she realized she loved me".

 

From this, and not from the truth of the statements [as hearsay] I, later, as Trustee formed/ retained the opinion that malfeasance or fraud had occurred at the meeting -- and I delayed irreversible distribution until that issue could be discussed and resolved.  Trustee did not take this to court because the trust document indicated that this was not wanted by the testator -- and so written in the trust.

 

Sister refused communication in writing and sister's attorney refused communication on several emails as well -- relying on the four corners argument to statutorily hold without discussion.

 

Finally sister brought action in court.

 

TO pg1067 HERE -- as it follows directly:

 

1 hour ago, pg1067 said:

if some rule of the Arizona State Bar is really preventing lawyers from taking your case, then that suggests one or more other issues you haven't even mentioned that likely complicate this matter even further.

 

Trust attorneys [both the dozen plus entire firms I have contacted directly and also sought suggestions as to possible other attorneys] take the same view.  That the Trustee must execute the Trust no matter the context, and that the Trustator's wishes vs. orders stated in the trust are mere boiler-plate, and that, even if fraud were involved, it is not the Trustee's place (responsibility) to raise such questions or issues.

 

From this, the attorney's conclude that there is such a low threshold of possible success that the Arizona State Bar ethics would hold it unethical to charge a client for legal assistance / representation.

 

That is why, if ambiguity and malfeasance to fraud is introduced, only I as Trustee can do so, and I cannot have representation -- and that is not just in Tucson but across Arizona.

 

BACK TO RetiredinVA:

15 hours ago, RetiredinVA said:

The normal remedy for that problem is to seek the advice of the court

 

After the Court advised me to get an attorney and I indicated to the Court as I just indicated to pg1067 The Court replies:

"THE COURT:  It is.

And, just so you know, the law in Arizona is I can't be your attorney, as you know, and nor can I be OMITTED NAME OF OC or your sister's attorney."

 

So, I do not see any way to seek the advice of the court.  ???

 

15 hours ago, RetiredinVA said:

Instead you are trying to argue issues that are inappropriate, such as the statute of limitations. 

 

I was seeking advice on, at least, the scope of application of the statute of limitations.  I know it at least makes difficult the effective bringing of action.

 

But, OC's motion for Summary Judgment relies substantially upon her statement in her motion:

 

1. [REPROBATE] Cannot Contest the Validity of Survivor's Trust A. and any Amendments thereto, as the Statute of Limitations has Expired.

 

If using problems of validity as a defense against the claim that I, as Trustee, engaged in malfeasance and should be removed is blocked, then the path to trial is blocked, if problems of validity are admissible as a defense as contrasted to initiating a legal action, then trial or my own motion for summary judgment can be tried.

 

This is similar to the question that was FindLaw answered regarding hearsay.  From the confirming posts on hearsay, I can introduce that the statements of others, regardless of their truth, that led me to prudently conclude that malfeasance or fraud occurred in relation to the description I have included about the troubling meeting between my mother, her attorney, my sister, and my brother-in-law.

 

Rather than arguing, I am trying to learn the scope and boundaries of the defense / usage of statutes of limitations as actually applied to me. 

 

When I learned or confirmed the scope of hearsay from pg1067 and another who has evidently removed the post, the clarification opened the door to hope in my possible Summary Judgment claim that since I was prudently relying on my received perception that malfeasance or fraud had been applied to trustator-mother, then the complaint  that I was acting improperly in seeking resolution versus distribution as Trustee falls and, possibly with it, the motion to have me removed.  I could then request a remedy as required under A.R.S. Rule 56. Summary Judgment.  Also, since my sister did not prevail, I would not be subject to huge legal and court costs she seeks from me -- and not the trust.

 

That is my rationale in trying to become informed on these details such as hearsay and statutes of limitations.

 

CONTINUING:

 

16 hours ago, RetiredinVA said:

You need to hire a lawyer and not argue with the lawyer about what should happen.

 

As stated to pg1067, I cannot, anywhere in Arizona.

 

16 hours ago, RetiredinVA said:

PG1067 suggested you backtrack and create a posting in a format that he proposed.  Please take his advice or stop

 

I would like to start at the beginning but I lack the luxury to do that at this time.

 

If I am to submit a motion for Summary Judgment by December 22nd and I do not understand A.R.S Rule 56 on the subject.

 

I have until, I believe, January 3rd to reply to OC's motion for Summary Judgment.

 

There are also two other motions I should file in that time.

 

I also have to prepare for the mid-January hearing on OC's motion for summary judgment.

 

Starting with the creation of the trust in 1995 and moving forward through the 13 succeeding amendments, and onward through (non] communications between the parties for over a year before legal action, and the motions that have been exchanged since and the two hearings so-far, is a large order to work through when attention is needed elsewhere.

 

So, if all parties wish to kill this this subject, that is fine.

 

But, I have tried, herein, to sketch ...what ...

16 hours ago, RetiredinVA said:

what the h--- is the problem you are having here.

 

Thanks for any and all the consideration you have provided me.  And, I apologize for where I have offended.

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Do I have this right?  Your mother had two children, you and your sister.Your mother set up a trust, with legal assistance, that made certain provisions for you and your sister.  Somewhere in the trust document there is stated a wish that the income and assets of the trust would be adequate to maintain you for the remainder of your life.  Unfortunately, the assets and income of the trust may not be adequate to maintain you for the rest of your life.  Therefore, you, acting as Trustee, are refusing to make distribution as required by the specific terms of the trust document.  Apparently you believe it is unfair to follow the terms of the trust and that your mother would not have set the trust up the way she did if she could have predicted the future.

 

If the above description is correct, you cannot get any attorney to represent you because your objections are without legal justification.  Attorneys are generally prohibited from presenting frivolous and baseless arguments to the courts.  To file papers in a court that the attorney knows are unfounded on the law can subject the attorney to sanctions and, possibly disciplinary action.

 

Your argument about the statute of limitations is baseless because the claim is not that the trust does not exist but that you are not required to make the distributions as required.  The statute begins to run when the trustee fails or refuses to act in compliance with his duty as trustee.  Also, interpretation of a trust can occur at any time after a question arises as to interpretation of the terms of the trust.

 

If I am misinterpreting the situation please let me know what I have stated incorrectly.  Also, I need to point out that the vast majority of your narration is irrelevant.  Your sister's assets, marital status, failure to visit your mother, etc.  have nothing to do with the terms of the trust.

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To; RetiredinVA

 

 

30 minutes ago, RetiredinVA said:

Also, I need to point out that the vast majority of your narration is irrelevant.  Your sister's assets, marital status, failure to visit your mother, etc.  have nothing to do with the terms of the trust

 

I am fully aware that these issues have no applicability to trust law, nor have I raised them.   I provided them 1) for context to 'what the h-- is the problem' and 2) to quantify the "disproportionate resources" that were raised as concern about allowing mother-trustee to amend her trust by my mother's attorney -- causing him to state that as a reason that he was reluctant to accede to mother's many requests to alter the trust increasingly towards my care over the several requests to do so at her attorney's office over a period of three and a half years after her signing if her 12th amendment to her death.

 

32 minutes ago, RetiredinVA said:

Do I have this right?  Your mother had two children, you and your sister. Your mother set up a trust, with legal assistance

 

The legal assistance was still guided by my mother's wishes as they changed with time and circumstances. 

 

My mother paid attention to the proceedings and was particularly concerned about anything she signed.  Before the changes in the 12th Amendment in 2012, her attorney solicited financial information from me (and not my sister) and ran a spreadsheet, and from that generated a report for her of what the current effect of her signing would be.

 

Subsequently, knowing of the huge oil price change that occurred, broke, in August 2014 [which was amplified by the policies of the majority shareowners of the well -- where the well produced almost nothing and just enough to sustain the claim from her 21st birthday when she received it in 1934 began in about year 2004]

 

For the reasons stated, beneficent and selfish, she was not informed of the production changes when she came in to request an upward adjustment of her son's share in the trust.

 

52 minutes ago, RetiredinVA said:

Apparently you believe it is unfair to follow the terms of the trust and that your mother would not have set the trust up the way she did if she could have predicted the future.

 

So this was not just a static trust meant to be written with legal assistance in 1995 and just, thereafter meant to be held unmonitored.  The trust was intended to be dynamic and modified.

 

Rather than predicting the future, the issue is whether she was sufficiently or properly informed of the past [or, in fact, improperly treated and hustled.

 

According to her attorney the "disproportionate resource" holders were perceived, by economic clout, to have the power over the acting Trustee-mother [as they now exert it over the new trustee-son].  [I have described the disproportionate resources as context for the attorney's belief and assertions.]

 

In her request to, again, -- this time directly in the presence of those holding economic power over her --  alter her trust to greater provide [seen to be a reasonable and rationale concern] care to her son. Instead,  she was emotionally pressured and she was not properly informed.

 

It is this latter to which I object on behalf of the testator who's interests I also serve.

 

[Of course, there is also the selfish issue that I would like to survive in life, PARTICULARLY HAVING LIVED ALMOST A DECADE WITH MY MOTHER'S CLEAR EXPRESSIONS OF HER WISHES.]   But, that shellfish interest has no place in the trust administration or associated litigation -- and has not been raised.

 

If it is determined that there is no ambiguity and that there has been no malfeasance of fraud, then, so advised and clarified, I carry out the distribution as specified.

 

If my prudent care to assure that the distribution was carefully managed [with caution due to perception] then, perhaps arbitration can be reached to, in a clearly fair and balanced way, resolve such conflicts as the Court may see.   But, certainly I cannot be sectioned and saddled with substantial legal fees if my good faith behavior as trustee reached the prudent-person standard, based upon what I heard.  ??

-----------------------------------------------------

 

Further: at hearing, I raised the issue of fraud and the Court heard and repeated it.  Opposing Counsel (OC), did not cross examine me on that in any way.   OC also had me swear to all documents I had submitted to the Court, and thus, I believe, made the contents of those documents available to me, as sworn and unchallenged facts, in ongoing arguments.  Further, my sister chose not to be present at the hearing -- so she could not be questioned and so she introduced no evidence,  Further, her attorney offered no sworn evidence, just some statements of her own construction printed on paper. 

 

So, my testimony, and my arguments in my testimony seem unchallenged.  OC seemed to let the assertion of fraud in, uncontested. ??

 

Further, her attorney, I find in her request for summary judgment, a citation to Rule 12(c) of Arizona Rules of Probate Procedure on NON-APPERANCE HEARING. OC. OC cites something from commentary under the rule. 

 

I find cites form the 12(c) comments by Arizona Supreme Court that "In addition, a non-appearance hearing generally is not appropriate if the petitioner expects or knows that a matter will be contested."

 

So the hearing was evidentially improperly sited.

 

There is ample evidence that OC knew the matter would be contested and did not advise the Court.  So the hearing was improperly created from the petition of OC.

 

I do not know the applicability of such evasion, but there may be some.

 

 

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Now, I must try to focus on the work that must be done to a deadline, where my only computer access is through schools that close over the holidays.

 

THANKS FOR THE DIALOGUE.

 

 

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