Clyde v. Snell, Trustee of the Imogene Snell Revocable Trust Dated November 16, 1993 v. William R. Snell , 374 P.3d 1236 ( 2016 )

IN THE SUPREME COURT, STATE OF WYOMING
2016 WY 49
APRIL TERM, A.D. 2016
May 16, 2016
CLYDE V. SNELL, Trustee of the
Imogene Snell Revocable Trust dated
November 16, 1993,
Appellant
(Defendant),
S-15-0276
v.
WILLIAM R. SNELL,
Appellee
(Plaintiff).
Appeal from the District Court of Johnson County
The Honorable William J. Edelman, Judge
Representing Appellant:
Drake D. Hill of Hill Law Firm, LLC, Cheyenne, Wyoming; Tonia Hanson of Hanson
Law Office, LLC, Buffalo, Wyoming. Argument by Mr. Hill.
Representing Appellee:
H. W. Rasmussen, Attorneys at Law of Wyoming, P.C., Sheridan, Wyoming.
Before BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, JJ.
NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third.
Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building,
Cheyenne, Wyoming 82002, of typographical or other formal errors so correction may be made
before final publication in the permanent volume.
KAUTZ, Justice.
[¶1] William R. Snell (William) and Clyde Allen Snell (Allen) are remainder
beneficiaries of the family trust created pursuant to the terms of the Imogene Snell
Revocable Trust. William filed an action for a trust accounting from his father, Clyde V.
Snell (Clyde), who is the sole trustee and current beneficiary of the trust. 1 The district
court applied Arkansas law in accordance with the trust’s choice of law provision and
granted summary judgment in favor of William, ordering Clyde to produce certain trust
documents to him. Clyde appealed.
[¶2] We conclude the district court’s summary judgment order was not a final
appealable order. However, we exercise our discretion to convert Clyde’s notice of
appeal to a petition for writ of review and grant the writ to address the legal question of
whether William is entitled to a trust accounting. On that issue, we affirm the district
court’s determination that, under Arkansas law, William is entitled to an accounting and
remand to the district court for immediate release of the records in the court’s possession
and further proceedings consistent with this decision.
ISSUES
[¶3] The dispositive issues in this case are:
1. Was the district court’s order appealable?
2. If the order was not appealable, should this Court use its discretion to
convert the notice of appeal to a petition for writ of review and grant the writ?
3. Did the district court properly interpret Arkansas law in concluding that a
trustee is required to account to a remainder beneficiary even though the trust does not
expressly require it?
FACTS
[¶4] Imogene and Clyde Snell were married and had two sons, William and Allen. In
1993, Imogene executed a revocable trust, which named her and Clyde as the initial co-
trustees and slated William as successor co-trustee if either was unable to serve. The
trust contained a choice of law provision directing that it be construed and governed by
1
The individuals involved in this case are all members of the Snell family. To avoid any confusion, we
will refer to them by their first names, except Clyde Allen Snell, who we will refer to as “Allen” to avoid
confusion with Clyde V. Snell.
1
the laws of Arkansas, where Imogene was domiciled. The stated purposes of the trust
were to avoid federal estate taxes and provide for Clyde after Imogene’s death.
[¶5] Imogene died in 2003, and the trust, therefore, became irrevocable. Under its
terms, her estate was split between a bequest to Clyde and a family trust. The family
trust states that Clyde may get distributions of income and principal under certain limited
circumstances. William and Allen are remainder beneficiaries of the family trust.
[¶6] After Imogene’s death, Clyde and an Arkansas bank were co-trustees. The bank
was soon replaced by William’s and Allen’s uncle, Glen Evans, who served as co-trustee
with Clyde. In 2006, Clyde moved to Buffalo, Wyoming, where Allen lived. Mr. Evans
died in 2009, leaving Clyde as the only remaining trustee, and no successor co-trustee has
been appointed.
[¶7] In 2013, Clyde proposed that the family trust be terminated and the assets be
divided between the two sons. When William received the trust termination documents,
he noticed that the value of an asset of the trust, an Edward D. Jones investment account,
had recently fallen by over $200,000. He asked for an explanation but did not receive
one.
[¶8] William filed an action in the district court seeking an order directing Clyde “to
provide sufficient material facts for [William] to protect his interests as a beneficiary of
the Imogene Snell Family Trust [and] an [o]rder continuing the Court’s supervision of the
administration of the trust.” Clyde contested the request for an accounting, and William
moved for summary judgment.
[¶9] The district court initially issued an order titled “Order Denying Motion for
Summary Judgment.” However, the district court’s ruling was more than a simple denial
of William’s motion. It ruled in William’s favor that he is “entitled to an accounting in
order to ensure the purpose of the Trust is being achieved.” But, it found that there was
an issue of material fact as to “whether or not the request for an accounting is
reasonable.” By this ruling the district court apparently meant that there would have to
be a factual determination of what records and information would constitute a
“reasonable” accounting, rather than a determination of whether an accounting was
reasonable at all. After issuing the summary judgment order, the district court held a
hearing on “what would be a reasonable request for trust records.” At that hearing, the
court ordered Clyde to produce for in camera review a list of all trust assets and
“information related to activity associated with the Edward D. Jones account from June
of 2012 to present.” Clyde provided the information to the district court under seal.
[¶10] The district court examined the documents in camera and issued an order on
October 20, 2015, ruling “the information tendered is discoverable as it does not
constitute an unreasonable accounting.” On November 16, 2015, the district court
2
entered an “Order Nunc Pro Tunc Clarifying October 20, 2015 Order,” stating that it
intended to grant summary judgment in favor of William and the order was final under
W.R.C.P. 54(a), “as resolving all issues in the case.” Clyde appealed.
DISCUSSION
1. Jurisdiction
[¶11] William asked us to dismiss this appeal for lack of jurisdiction because the district
court’s order granting him access to the information provided by Clyde did not finally
decide the case.2 The question of whether an order is final and appealable is one of law;
thus, our standard of review is de novo. Northwest Bldg. Co., LLC v. Northwest
Distributing Co., Inc., 2012 WY 113, ¶ 26, 285 P.3d 239, 245 (Wyo. 2012). See also
Poignee v. State, 2016 WY 42, ¶ 8, ____ P.3d ____ (Wyo. 2016) (jurisdiction is a
question of law subject to de novo review).
[¶12] Under Wyoming’s rules of appellate procedure, this Court has jurisdiction over
appeals from final, appealable orders. Plymale v. Donnelly, 2006 WY 3, ¶ 4, 125 P.3d
1022, 1023 (Wyo. 2006). See also McLean v. Hyland Enterprises, Inc., 2001 WY 111,
¶¶ 19–20, 34 P.3d 1262, 1268 (Wyo. 2001). W.R.A.P. 1.05(a) defines an appealable
order in pertinent part as: “(a) An order affecting a substantial right in an action, when
such order, in effect, determines the action and prevents a judgment[.]” We have
identified three requirements for an order to be appealable under Rule 1.05(a). It must
affect a substantial right, determine the merits of the controversy and leave no issues for
future consideration. See, e.g., CAA v. ZWA (In re KRA), 2004 WY 18, ¶ 10, 85 P.3d
432, 436 (Wyo. 2004); Steele v. Neeman, 6 P.3d 649, 653 (Wyo. 2000).
[¶13] William asserts the district court’s order requiring production of the information
reviewed in camera did not finally decide the case because the information may not be
sufficient to allow him to protect his interests. In fact, in his motion for summary
judgment, William sought an order directing Clyde:
to account for all contributions, income and distributions of
the trust from July 7, 2003 to the present, including but not
limited to the closing statement from the sale of real property
held by the trust, annual tax returns for the trust, Edward D.
Jones account number . . . and to the extent transfers were
2
Clyde attempted to have the case heard by this Court on two earlier occasions. He filed a petition for writ of
review, which we denied in April 2015. He also filed a notice of appeal of the “Order Denying Motion for
Summary Judgment” and an “Order Denying Motion to Stay Discovery and Motion for Protective Order.” We
dismissed that appeal because an order denying summary judgment generally is not appealable. See, e.g., Merchant
v. Gray, 2007 WY 208, ¶ 5, 173 P.3d 410, 412 (Wyo. 2007). We also noted that it appeared the district court had
not resolved William’s request for judicial supervision of the trust.
3
made to a checking or savings account of the Defendant . . .
ultimate distribution from such accounts to third parties, and
such other and additional information as will provide Plaintiff
with sufficient information to be informed of distributions
from the trust and in the alternative that the Plaintiff be
provided such information from the demise of the co-trustee
Glen Evans, on August 10, 2009 . . . .
William also points out that his request for judicial supervision of the trust has not been
addressed by the district court.
[¶14] We agree that the district court’s order releasing the information to William is not
final and appealable. Although the information provided by Clyde shows the trust values
and withdrawals and transfers from the investment account in 2012 and 2013, it remains
to be determined whether it is sufficient to protect William’s interests. It is likely the
investment statements will lead to additional questions such as the purposes of the
withdrawals and/or transfers and where the funds went, and he will request additional
information to answer those questions. If the parties are unable to agree, the district court
will need to decide whether such future requests are appropriate. In addition, William’s
request for continued judicial supervision of the trust remains unresolved. Thus, the
district court’s claim in its November 16, 2015 Order Nunc Pro Tunc that it had resolved
“all issues in the case” is obviously incorrect. Given there are outstanding issues, the
district court’s order requiring production of the information tendered by Clyde is
interlocutory in nature and not directly appealable.
[¶15] However, we may review interlocutory orders by granting a discretionary writ of
review under W.R.A.P. 13. Rule 13.02 states in relevant part:
A writ of review may be granted by the reviewing
court to review an interlocutory order of a trial court in a civil
or criminal action, . . . which is not otherwise appealable
under these rules, but which involves a controlling question
of law as to which there are substantial bases for difference of
opinion and in which an immediate appeal from the order
may materially advance resolution of the litigation.
We have, in the past, exercised our discretion to issue a writ of review even though the
appellant filed a notice of appeal instead of a petition for writ of review. We do not
exercise this power regularly, only when the case raises a question of law and appellate
review of the district court’s order would materially advance resolution of the litigation.
State ex rel., Dep’t of Workforce Servs., Workers’ Safety & Comp. Div. v. Hartmann,
2015 WY 1, ¶¶ 13-17, 342 P.3d 377, 381-82 (Wyo. 2015); Schwab v. JTL Group, Inc.,
4
2013 WY 138, ¶ 14, 312 P.3d 790, 795 (Wyo. 2013); Stewart Title Guar. Co. v. Tilden,
2005 WY 53, ¶ 7, 110 P.3d 865, 870 (Wyo. 2005).
[¶16] This case presents a distinct question of law involving a remainder beneficiary’s
right to an accounting under Arkansas law. Resolution of that legal issue will materially
advance the litigation as our decision will either result in a dismissal of the action or
focus further proceedings upon the adequacy of the accounting and whether continued
court supervision of the trust administration is proper. We are also cognizant of the fact
that Clyde is very elderly and suffers from health issues, making timely resolution of this
matter especially important. We, therefore, conclude it is appropriate to exercise our
discretion to convert Clyde’s notice of appeal to a petition for writ of review and grant
the writ in order to resolve the legal issue of whether William is entitled to an accounting.
Remainder Beneficiary’s Right to Accounting
[¶17] The district court granted summary judgment in favor of William. Under
W.R.C.P. 56(c), summary judgment is appropriate when there is no genuine issue of
material fact and the movant is entitled to judgment as a matter of law.
[¶18] This Court reviews summary judgment orders de novo, meaning that:
“[w]e review a summary judgment in the same light as the
district court, using the same materials and following the
same standards. We examine the record from the vantage
point most favorable to the party opposing the motion, and we
give that party the benefit of all favorable inferences that may
fairly be drawn from the record. A material fact is one which,
if proved, would have the effect of establishing or refuting an
essential element of the cause of action or defense asserted by
the parties. If the moving party presents supporting summary
judgment materials demonstrating no genuine issue of
material fact exists, the burden is shifted to the non-moving
party to present appropriate supporting materials posing a
genuine issue of a material fact for trial.”
Rogers v. Wright, 2016 WY 10, ¶ 7, 366 P.3d 1264, 1269 (Wyo. 2016), quoting Inman v.
Boykin, 2014 WY 94, ¶ 20, 330 P.3d 275, 281 (Wyo. 2014) (internal citations omitted).
[¶19] Paragraph 10.1 of the trust provides: “This trust shall be construed and governed
by the laws of the State of Arkansas, the domicile of the Grantor at the time this
instrument is executed.” Relying on that provision, the district court ruled that Arkansas
5
law governs whether William is entitled to an accounting.3 In 2005, Arkansas enacted
the Arkansas Trust Code (ATC), which generally follows the Uniform Trust Code. See
A.C.A. § 28-73-101 and 102. With certain exceptions, the ATC applies to all trusts
regardless of when they were created. A.C.A. § 28-73-1106.
[¶20] The ATC generally gives primacy to the express terms of the trust. A.C.A. § 28-
73-105(b) and comment. The district court found, and the parties agree, that the Imogene
Snell Family Trust does not explicitly address the rights of beneficiaries to trust
accounting records. Under many circumstances, A.C.A. § 28-73-813, which governs the
trustee’s duty to inform and report to beneficiaries, would fill that gap. Section 28-73-
813(a) outlines a trustee’s general obligation to report:
(a) A trustee shall keep the qualified beneficiaries
of the trust reasonably informed about the administration of
the trust and of the material facts necessary for them to
protect their interests. Unless unreasonable under the
circumstances, a trustee shall promptly respond to a
beneficiary’s request for information related to the
administration of the trust.
[¶21] However, § 28-73-813(e) states the statutory duty to report applies only to
irrevocable trusts created on or after September 1, 2005, and revocable trusts that become
irrevocable on or after September 1, 2005. The Imogene Snell Revocable Trust became
irrevocable upon her death in 2003. See generally Bailey v. Delta Trust & Bank, 198
S.W.3d 506, 509 (Ark. 2004) (revocable trust becomes irrevocable upon settlor’s death).
Thus, § 28-73-813 does not govern Clyde’s duty to report. When faced with gaps in the
law, the ATC provides: “The common law of trusts and principles of equity supplement
this chapter.” A.C.A. § 28-73-106.
[¶22] Recognizing that the reporting provision of the ATC does not address Clyde’s
obligation to report to the beneficiaries, the district court looked to Salem v. Lane
Processing Trust, 37 S.W.3d 664 (Ark. Ct. App. 2001), a case that predated the ATC, to
decide the issue. In Salem, an Arkansas court of appeals relied upon the Restatement
(Second) of Trusts in determining whether Salem, a beneficiary of the Lane Processing
Trust, was entitled to a trust accounting. It quoted the Restatement as follows:
“Comment c to section 173 of the Restatement (Second) of
Trusts (1959) provides:
3
William suggests in his appellate brief that Wyoming law, rather than Arkansas law, should apply in this case, and
he strongly asserted that position at oral argument. The district court’s orders repeatedly state that the parties and
the court agreed Arkansas law applies to this case. William apparently agreed, at the district court level, that
Arkansas law applies, and he does not present an adequate choice of law challenge or argument to this Court.
Consequently, we will not consider whether the district court erred by applying Arkansas law.
6
Although the terms of the trust may regulate the amount of
information which the trustee must give and the frequency
with which it must be given, the beneficiary is always entitled
to such information as is reasonably necessary to enable him
to enforce his rights under the trust or to prevent or redress a
breach of trust.”
Salem, 37 S.W.3d at 666-67. Applying § 173, the Arkansas court listed several reasons
why Salem was not entitled to an accounting including that there was no express trust
provision requiring records be released to him, Salem had not demonstrated that access to
the records was required to prevent or redress a breach of trust, and the scope of his
request was unreasonable. In addition, the court recited a long history of vexatious
lawsuits instigated by people acting in concert with Salem. Id.
[¶23] The district court in this case distilled three factors from Salem to be considered in
determining whether a trust beneficiary has the right to a trust accounting: 1) whether the
beneficiary seeking the report demonstrates that access is warranted to prevent or redress
a breach of trust; 2) whether the trust document addresses the trustee’s reporting
responsibilities; and 3) whether the request for information is reasonable. The court
determined that the first factor was satisfied because Clyde is elderly and could not
explain the loss of value in the account. With regard to the second factor, the district
court concluded that, although there was no express accounting requirement in the trust,
its general intent was to allow William an accounting. It stated: “William, as a
remainder beneficiary, a successor trustee, and the son of both the grantor and the
principal beneficiary is entitled to an accounting in order to ensure the purpose of the
Trust is being achieved.”
[¶24] Turning to the third factor, the district court ruled there was a material issue of fact
as to whether William’s request for information was reasonable and initially denied
William’s motion for summary judgment. At a subsequent hearing on the reasonableness
of William’s request, the district court directed Clyde to submit, for in camera review, a
list of trust assets and information about the Edward D. Jones account from June 2012
forward. After reviewing the materials submitted by Clyde, the district court found “the
information tendered is discoverable as it does not constitute an unreasonable
accounting,” ordered production of the materials to William and granted summary
judgment in his favor.
[¶25] Before we consider the legal question of whether William is entitled to an
accounting, we are compelled to comment upon the procedures used by the district court
in granting summary judgment and restricting access to the record. The district court
initially denied summary judgment because it concluded there was a material issue of fact
as to whether William’s request for information was reasonable. We agree that
reasonableness is usually a question of fact, which makes summary judgment
7
inappropriate. See Salem, 37 S.W.3d at 667; Bell v. Bank of America, N.A., 422 S.W.3d
138, 142 (Ark. Ct. App. 2012).
[¶26] Although an evidentiary hearing is typically necessary to decide a question of fact,
the district court did not conduct one. Instead, it ordered the trustee to submit
information for in camera review. It then proceeded to decide the factual question and
issued an “Order Following In Camera Inspection of the Documents” on October 20,
2015, without taking additional evidence or hearing any argument. It subsequently
entered an order it called “Order Nunc Pro Tunc Clarifying October 20, 2015 Order,”4
which granted summary judgment to William and declared the order was final “as
resolving all issues in the case.” Neither the district court nor the parties recited any
authority for the district court to order Clyde to submit certain materials to the district
court for in camera review or to decide a factual issue using that procedure.
[¶27] The district court, on its own, created a procedure where it defined and considered
the evidence it thought was relevant, without any of the appropriate procedures typically
followed in a trial or hearing. It then made a substantive decision based on that evidence
without one side even knowing what the evidence was. Despite the unusual and highly
questionable means the district court employed in reaching its decision, Clyde does not
challenge the district court’s finding that disclosure of the Edward D. Jones account
information was reasonable.
[¶28] In another unusual procedural twist, the district court entered an order sealing the
records presented for in camera review and stated: “This matter is not subject to
appeal and this order shall seal the records that were reviewed by the Court and they
shall remain under seal until ordered open by this Court or an appellate court.” (emphasis
added). The district court did not cite any authority for its action. Wyoming’s Rules
Governing Access to Court Records address confidential information in court
proceedings. Rule 6 provides a partial list of records which may be restricted from public
access, including “[d]iscovery material or other items submitted to a court for in camera
review” and “[r]ecords sealed by a court.” Rule Governing Access to Court Records 6(n)
and (r). The rules set out procedures for designating records as confidential. See, e.g.,
Rules 7-10. While the records submitted by Clyde may qualify as confidential under the
rules, there is no indication the procedure for sealing them was followed in this case.
[¶29] Furthermore, although William designated the sealed documents as part of the
record on appeal, the district court clerk did not forward them to this Court, apparently
because of the district judge’s order that the “matter is not subject to appeal.” There is no
4
“The nunc pro tunc is limited to cases where it is necessary to make the judgment speak the truth, and
cannot be used to change the judgment.” Eddy v. First Wyoming Bank, N.A. – Lander, 713 P.2d 228, 234
(Wyo. 1986), citing Arnold v. State, 76 Wyo. 445, 306 P.2d 368, 374 (1957). The district court’s “Order
Nunc Pro Tunc Clarifying October 20, 2015 Order” clearly expanded the prior ruling and, therefore, was
not a proper order nunc pro tunc.
8
legal basis to withhold, from this Court, information the district court relied upon in
making its decision. Consequently, we directed that the materials be forwarded to us.
Although the procedural irregularities in this case do not affect our decision, this opinion
should not be taken as approval of the procedures used by the district court.
[¶30] We turn now to the specific legal question presented in this case, i.e, whether
William, as a remainder beneficiary with no present right to distributions from the family
trust,5 has the right to an accounting from Clyde even though the trust does not explicitly
provide one. Clyde argues that a beneficiary does not have the right to an accounting
unless the express terms of the trust impose a duty upon the trustee to report. By making
this argument, Clyde ignores that, in Salem, the Arkansas court specifically relied upon
the Restatement (Second) of Trusts §173. Section 173 recognizes a common law duty for
the trustee to account to beneficiaries regardless of the trust language:
The trustee is under a duty to the beneficiary to give
him upon his request at reasonable times complete and
accurate information as to the nature and amount of the trust
property, and to permit him or a person duly authorized by
him to inspect the subject matter of the trust and the accounts
and vouchers and other documents relating to the trust.
Section 173. As referenced in Salem, §173, cmt. c. states that “[a]lthough the
terms of the trust may regulate the amount of information which the trustee must
give and the frequency with which it must be given, the beneficiary is always
entitled to such information as is reasonably necessary to enable him to enforce his
rights under the trust or to prevent or redress a breach of trust.” (emphasis added).
Under this provision, although an express accounting term may define the scope of
a trust accounting, § 173 states that a beneficiary is always entitled to enough
information to enforce his rights or address a breach of trust.
[¶31] Clyde next asserts that even if there is a general right to an accounting, William is
not entitled to one because he is a remainder beneficiary, rather than a current
beneficiary. Section 173 does not differentiate between current beneficiaries, remainder
beneficiaries or contingent beneficiaries. However, other provisions of the Restatement
of Trusts do address this issue. Our review of Arkansas law reveals that its courts
regularly relied upon the Restatement of Trusts in resolving issues related to trusts prior
to adoption of the ATC. See, e.g., Buchbinder v. Bank of America, N.A., 30 S.W.3d 707
(Ark. 2000) (applying Restatement (Second) of Trusts § 216 to find beneficiary waived
right to hold trustee accountable for errors or omissions by consenting to the trustee’s
action); Wisener v. Burns, 44 S.W.3d 289 (Ark. 2001) (using Restatement (Second) of
5
The terms of the family trust allow the trustee to make discretionary distributions from trust income to
the “Grantor’s children” during Clyde’s lifetime.
9
Trusts § 4 to interpret trust language consistent with the intent of the settlor); Riegler v.
Riegler, 553 S.W.2d 37 (Ark. 1977) (applying Restatement (Second) of Trusts § 170 to
impose a high standard of good faith and prudent dealing upon trustee). It is, therefore,
appropriate for us to look to other Restatement provisions to determine whether the right
to information under §173 applies to remainder beneficiaries.
[¶32] Restatement (Second) of Trusts § 172, comment c., addresses the rights of
remainder beneficiaries as follows: “The trustee may be compelled [to] account not only
by a beneficiary presently entitled to the payment of income or principal, but also by a
beneficiary who will be or may be entitled to receive income or principal in the future.”
The Restatement cites to Shriners Hospitals v. Smith, 385 S.E.2d 617, 618-19 (Va. 1989),
as an example of a case applying that rule. In Shriners Hospitals, the Virginia Supreme
Court stated that the remainder beneficiary’s interest vested when the settlor died, and the
remainder beneficiary was entitled to an accounting even though the trust did not require
it and the beneficiary was not currently entitled to distributions. Id. In Jacob v. Davis,
738 A.2d 904 (Md. App. 1999), a Maryland court of appeals quoted § 172 and provided a
comprehensive analysis of a remainder beneficiary’s right to an accounting:
The leading authorities on trusts are unequivocal in their
articulation of the right of the remainder beneficiary to an
accounting during the lifetime of the income beneficiary and
after his or her death. Austin W. Scott and William F.
Fratcher, The Law of Trusts, (Vol. IIA 4 th ed.1987) § 172
explains:
A trustee is under a duty to the beneficiaries of the trust to
keep clear and accurate accounts. His accounts should show
what he has received and what he has expended. They should
show what gains have accrued and what losses have been
incurred on changes of investments. If the trust is created for
beneficiaries in succession, the accounts should show what
receipts and what expenditures are allocated to principal and
what are allocated to income.
If the trustee fails to keep proper accounts, all doubts will be
resolved against him and not in his favor ...
Not only must the trustee keep accounts, but he must render
an accounting when called on to do so at reasonable times by
the beneficiaries. Where there are several beneficiaries, any
one of them can compel an accounting by the trustee. The fact
that a beneficiary has only a future interest ... does not
preclude him from compelling the trustee to account.
10
Id.
George Bogert, The Law of Trusts and Trustees, (Rev.2d
ed.1983) § 961 takes a similar view:
[T]he beneficiary is entitled to demand of the trustee all
information about the trust and its execution for which he has
any reasonable use....
If the beneficiary asks for relevant information about the
terms of the trust, its present status, past acts of management,
the intent of the trustee as to future administration, or other
incidents of the administration of the trust, and these requests
are made at a reasonable time and place and not merely
vexatiously, it is the duty of the trustee to give the beneficiary
the information for which he has asked.
Both Scott, supra, and Bogert, supra, cite numerous cases in
support of the rule that a remainder beneficiary is entitled to
an accounting. Scott, supra, § 172 at 454; Bogert, supra, §
973.
Jacob, 739 A.2d at 911-12 (emphasis omitted). See also Restatement (Second) of Trusts
§§ 82-83.
[¶33] These authorities clearly establish that, under the common law, a vested remainder
beneficiary is entitled to an accounting. The district court properly ruled that William is
entitled to review the documents currently under seal. Upon remand, we direct the
district court to immediately release the information in its possession and conduct such
additional proceedings as necessary to facilitate William’s request for an appropriate trust
accounting and determine whether continued court supervision of the trust administration
is appropriate.
[¶34] Affirmed and remanded.
11