To Direct or Not Direct, That is the Question!

Recent discussions by estate planners on several list serves have focused on the legal ramifications of the Grantor of a Trust directing/mandating, in said trust, the use of a defined attorney for that Trusts administration.  Cases dealing with this question are few and far between.  Of note, in the past 200 years, only two cases, in the early 1800’s, have supported such a mandate in a Will/Trust document.

More recently, in an Illinois matter, Conlon v. Sullivan, 280 Ill. App. 332 (Ill. App. Ct. 1935), the estate planning community was provided some guidance on this issue.  The case focused on a discretionary request, within a Trust document, for the appointment of an attorney to administer the Trust, subsequent to the grantors death.  Upon the death of the grantor, the identified attorney was not retained to administer the trust and, therefore, challenged.  In this case, the court upheld the right of the trustee to choose his/her attorney, noting the mere discretionary nature of the request.  As stated, the discretionary language did not impose a mandate for the attorney to be retained, much akin to any discretionary provision in a trust document.  However, in dicta, the court stated that, “the law appears to be that a trustee or executor is not bound to employ an attorney even though the will uses such words as ‘direct,’ ‘command’ or ‘appoint.’” 280 Ill. App. at 342.

Universally, individuals have the right to hire and fire their legal representation.  As is seen above, only two cases in the 1800’s have held that a mandate within a Will/Trust for the use of a defined attorney for that Trust’s administration were proper.  The overwhelming sentiment amongst estate planners is that this form of mandate in a Will or Trust is ineffective.  Further, it is our opinion that such mandate creates an inherent conflict between Trust and Trustee.  Therefore, when we draft documents, it is our practice to refrain at all times from including such a mandate.  In this scenario, we strongly recommend to NOT direct!!

-  Gary Altman, Esq. and Adam Abramowitz, Esq.

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