The issue as to the scope and nature of a trustee’s duty to provide information to a beneficiary is before the Maryland Court of Appeals in Johnson v. Johnson[1]. In the Court of Special Appeals, however, this right to information and to an accounting was expressed in sweeping terms that emphasized that those rights were essential if beneficiaries have enforceable rights. The Court of Special Appeals, quoting Bogert, held:
A [testator] who attempts to create a trust without any accountability in the trustee is contradicting himself. A trust necessarily grants rights to the beneficiary that are enforceable in equity. If the trustee cannot be called to account, the beneficiary cannot force the trustee to any particular line of conduct with regard to the trust property or sue for breach of trust. The trustee may do as he likes with the property, and the beneficiary is without remedy. If the court finds that the settlor really intended a trust, it would seem that accountability in chancery or other court must inevitably follow as an incident. Without an account the beneficiary must be in the dark as to whether there has been a breach of trust and so is prevented as a practical matter from holding the trustee liable for a breach.[2]
Johnson actually involved two separate trusts: a marital trust (“Trust A”) and a credit shelter trust (“Trust B”) with the widow/stepmother as sole trustee and the only beneficiary during her life. Her stepson was the vested remainderman to the credit shelter trust. Although the credit shelter trust provided that she receive all income during life, the right to withdraw principal was governed, unsurprisingly, by an ascertainable standard.[3] The widow/stepmother had extensive rights as to the marital trust, including, she claimed, a general inter vivos and testamentary power of appointment.[4]
The stepson’s rights in the marital trust might have been seen as more problematic but the Court of Special Appeals upheld the right to a full accounting on both trusts because the administration of the marital trust necessarily impacts the administration of the credit shelter trust:
Alternatively, Catherine contends that if James is entitled to an accounting, it should be limited to Trust B. We disagree and conclude that James can request an accounting of the entire Trust. While his interest in Trust B is more defined, he has an interest in Trust A and how Catherine manages it. While Catherine is living, she has access to both trusts and the management of Trust A potentially affects the proceeds available for Trust B. In short, the trusts are inextricably linked and limiting James’s right to an accounting of Trust B will not satisfy the Trustee’s legal responsibility to him.[5]
At oral argument, the Court of Appeals seemed focused on whether a remainder beneficiary could force an accounting as to what appeared to be essentially a revocable trust.
[2] Johnson v. Johnson, 184 Md. App. 643, 657, 967 A.2d 274, 282 (2009) [quoting Bogert § 973].
[3] The trust explicitly provided that the credit shelter trust discretionary distributions were to be governed by an ascertainable standard. In the absence of such an explicit provision, however, Maryland law may impose ascertainable standards on a trustee’s/beneficiary’s right to withdraw under certain circumstances. Estates & Trusts Article § 14-109.
[4] The trust document was not altogether clear and the remainderman never conceded that there was an inter vivos general power.
[5] Johnson v. Johnson at 655/281. “More problematic”, of course, because the marital trust had language that may have provided a general power of appointment exercisable during the lifetime of the stepmother/trustee.
