In re Estate of Cooper
81 Wash. App. 79, 913 P.2d 393 (1996)

  • Mrs. Cooper died. As Washington is a Community Property State, she owned half the marital property, while the other half was owned by her husband Fermore. Her will created a trust that contained her half of the marital property ($800k). In named Fermore and Old National Bank (ONB) as the trustees and her children (Joyce and Richard) as the beneficiaries.
    • Fermore had a life estate in the trust and got the income. After he died, the kids would get the trust assets.
  • Fermore did not separate his property from his wife's and continued to invest and manage all the community property as if it were his own.
    • Fermore got remarried, which made his assets community property with his new wife.
  • 8 years after Mrs. Cooper died, Fermore asked Joyce to approve removing ONB as a trustee, and she finally got around to asking about the estate. In response, Fermore deposited $2M in an ONB account to fund the trust.
    • Fermore had done quite well with some of his investments, but had never bothered to separate his part from his dead wife's part, so the $2M was at best just an approximation.
  • Joyce petitioned the court to remove Fermore as a trustee and for an accounting declaration.
  • Fermore filed an accounting that gave the value of Mrs. Cooper's estate at $1.28M. The Court stepped in and appointed a 'special master' named Cummins. Cummins found that the Fermore's accounting was not in accordance with industry standards. Fermore tried again and this time calculated Cooper's estate at $1.8M.
    • $1.8M is still less than the $2M Fermore had eventually deposited in ONB.
  • The Trial Court initiated proceedings to determine if Fermore should be removed as the trustee.
  • The Trial Court found that Fermore had inappropriately favored income-generating investments to principle generating investments, fined him, and discharged him as a trustee. Fermore appealed.
    • The Trial Court found that trustees have a duty to act in the best interest of both the beneficiaries and the remaindermen, and they should not act in the interest of one to the detriment of the other.
      • Fermore had invested mostly in bonds which generated interest that he took, but no capital gains that the children would get. However, he made one or two really good stock buys so there was a lot more capital in the account than when the trust started.
    • The Trial Court found that the trust lost about $458k because of Fermore's investment strategy, and fined him that much (minus the amount he had overfunded the trust).
    • The Trial Court awarded all parties a portion of their attorney's fees to be taken from the trust assets.
  • The Appellate Court mostly affirmed.
    • Fermore had argued that the trust overall had outperformed the market, and the Court should focus on overall performance, and not on specific investments, but the Appellate Court found that he still had an inappropriate investment mix.
    • The Appellate Court found that Fermore should have to pay some of Joyce's attorney's fees.
      • As a trustee Fermore was required to keep good records. Since he was negligent in doing so, he was responsible for paying the attorney's fees for forcing him to get a good accounting.
        • However, since the accounting fees are normally paid by the trust, the cost to actually do the accounting was paid by the trust.
    • Since the trust did rather well, there were no damages, per se.