One thing even the least savvy trustee should know—hiring your personal trainer to make important decisions regarding a trust is an invitation to a lawsuit.
But, that’s just what was alleged in the most recent development involving the Himan Brown Charitable Trust, established by radio pioneer Himan Brown, who produced such programs as Dick Tracy. The bulk of Himan’s $100 million estate went into the charitable trust. As reported recently in The New York Times, Himan’s granddaughter Melina Brown runs a foundation, the Radio Drama Network, that sued the trustee, Richard L. Kay, who was Himan’s longtime lawyer, alleging that he exploited his position by overseeing the trust for his own benefit. According to Melina, Richard hired his personal trainer, Matthew Forman, as a director and consultant to the trust. Matthew was responsible for distributing millions of dollars to various causes. Melina challenges Matthew’s role, pointing out he had no experience administering trusts and that he chose to distribute money to causes that were important to Richard rather to Himan, like Richard’s alma maters and his grandchild’s school. The lawsuit also claims that Richard tricked Himan into leaving his money to the Himan Brown Charitable Trust instead of the Radio Drama Network, which Himan initially supported.
Duty of Loyalty
Although the lawsuit is yet to be decided, it’s helpful to consider whether Richard, as trustee, could have made some better choices. Gail Cohen, chair of Fiduciary Trust’s board of directors and General Trust Counsel at Fiduciary Trust International explains that a trustee has several basic duties, including a duty of loyalty. That means that when a trustee takes an action in their capacity as trustee, it must be performed in a manner that benefits only the beneficiaries of the trust with no benefit to the trustee. Quoting Judge Learned Hand in Meinhard v Salmon, a fiduciary is held to the highest standard: “Not honesty alone, but the punctilio of an honor the most sensitive, is then the standard of behavior.” A conflict of interest may arise when even an incidental benefit inures to the trustee.
Based on the facts as stated in The New York Times article, if Melina can prove that distributions were made to causes important to Richard, this could be indicative of a conflict of interest.
Delegation
Cohen notes that with respect to delegating responsibilities of administering trust assets to someone else, most states, including New York, permit a trustee to delegate duties to a third party; the ability to delegate didn’t exist in common law but rather arose statutorily, most notably under the Prudent Investor Rule. That rule, found in EPTL 11-2.3, provides a framework for delegation of duties, not only investment functions but also “management” functions. The rule requires the trustee to use care, skill and caution in: (1) selecting a suitable delegee taking into account, among other things, the expertise of the delegee; (2) establishing the scope of the delegation; (3) monitoring the performance of the delegee; and (4) controlling the overall costs of the delegation.
Again, if the court believes Melina’s claims, Richard’s choice of his personal trainer to manage trust funds seems to be problematic. A court might also find that Richard didn’t control costs of the delegation, as the article notes that the trust paid Matthew $1.5 million to perform his duties.