By Sam Knef | Jun 29, 2017

ST. LOUIS — An appeals panel has rejected the breach of fiduciary duty claims of a plaintiff who said the assets in a trust created by his father were not properly preserved.

In a decision handed down June 13, the Missouri Court of Appeals, Eastern District affirmed a St. Louis County Circuit Court bench trial judgment in favor of Marlene Brown, Jason Brown, trust attorney Christopher Erblich, Dennis Brown and Janine Hutchinson Smith.

They had been sued by Keith Brown, the eldest son of Harlin Brown, who died in January 2007. In 1995, Harlin Brown had created a trust, which was restated in 2001 and amended numerous times before he died, the ruling states.

At the time of his death, he was married to Marlene Brown, who became co-trustee along with Erblich after his death. In 2009, Jason Brown, one of Harlin Brown's sons, became co-trustee.

The ruling indicates that Dennis Brown is another son of Harlin Brown, and Janine Hutchinson Smith is Marlene Brown’s daughter.

Keith Brown had argued that the trustees made excessive distributions to Marlene Brown, thereby failing in a duty to "preserve the principal of the Trust for contingent remaindermen, including Appellant," the ruling states.

He also claimed even if the trustees did not have that duty to preserve "they did not follow the terms of the Trust and made distributions of principal to Marlene Brown that were unnecessary and in excess of her standard of living prior to Grantor's death," the ruling states.

The appeals panel, comprised of presiding Judge James M. Dowd and Judges Kurt Odenwald and Gary Gaertner Jr., found no error in the trial court's rejection of Keith Brown's breach of fiduciary duty claims.

The decision notes several provisions of the trust "pertinent" to distributions to Marlene:

"(T)he Trustee shall distribute to the Grantor's spouse, from time to time, such amounts of the principal of the trust estate as necessary to provide for the health, education, maintenance and/or support of the Grantor's spouse.

"It is the Grantor's desire that (his) spouse be able to live in a manner which shall be consistent with (her) accustomed manner of living.

"[T]he Trustee shall give primary consideration to the needs of the income beneficiary or beneficiaries (here only Marlene Brown), rather than to the conservation of the trust estate for persons having remainder interests," the ruling states.

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