Removal of Trustees: Practice Points and Strategy from Rodowicz v. Bernard

April 24, 2018 Advisory

Earlier this month, the Superior Court for the Judicial District of Hartford issued a Decision that, although arguably unique on its extreme facts and findings, contains a broader strategic point about bringing actions to remove trustees in Connecticut. Most notably, it highlights subtle distinctions in the powers of the different Connecticut courts and suggests tactical positioning of litigants seeking to remove trustees.

In Rodowicz v. Bernard, 2018 WL 1885655 (Conn. Super. Ct. Apr. 3, 2018), the Court removed certain family members as trustees of a trust established to care for the family matriarch, who is in her late 80s and suffers dementia. That case involved warring factions of a family, with the Court expressing a dim view that the family member-trustees had installed themselves through "insidious" means, describing a "coup d'état" and "sin[s] of deception" perpetrated against other family members. Finding further that the trustees had "blatantly ignored the trust terms to serve their own ends," having tapped into the trust "to carry on the feud instead of focusing on preserving its assets and protecting is primary beneficiary," the Court ordered their removal and set a hearing for the appointment of a neutral successor trustee.

Rodowicz provides an opportunity to examine Connecticut law governing the removal of trustees.

The Removal Statute Favors the Probate Courts. Connecticut probate courts and superior courts have overlapping jurisdiction in administering trusts. However, unlike the superior courts, Connecticut probate courts are courts of limited jurisdiction, having only the jurisdiction conferred upon them by statute. Perhaps as a result, the Legislature has granted certain powers to the probate courts explicitly, without explicitly extending those powers to the superior courts.

The complaint in Rodowicz was brought in the Superior Court.[1] Of relevance here, the Connecticut "removal statute," Conn. Gen. Stat. § 45a-242, was amended in 2001 to provide three additional grounds for removal of a fiduciary, including a determination by the court "that removal of the fiduciary best serves the interests of the beneficiaries" because of "unfitness, unwillingness or persistent failure of the fiduciary to administer the estate effectively."[2] This statute would seem to be just the tool the Superior Court was looking for. However, the opening sentence of this statute empowers only "the Court of Probate having jurisdiction" to make such a determination. Id. The statute seemingly only gives a superior court the power to remove trustees of "a trust created by will."[3]

Strategic Implications. Perhaps, as a result of this jurisdictional limitation in the removal statute, the Superior Court in Rodowicz found it necessary to catalogue in vivid detail the "machination[s]" and "betrayals" of the trustees to support their removal. The Superior Court appeared to recognize its limitations, and clearly believed it would have had the broader removal powers under Section 45a-242(c) "if this were a testamentary trust." However, because the trust in Rodowicz is not a testamentary trust, the Court did not ground its findings on the removal statute. The Court instead relied on the terms of the trust itself as well as Connecticut common law, which the Court read as authorizing removal for "persisting conflicts of interest" but striking a "cautionary note" that such decisions "mustn't be taken lightly."[4]

Rodowicz reinforces that the place to initiate an action to remove a trustee is the relevant probate court, which can rely on the removal statute. Although the removal statute is not a "silver bullet" in many cases, and Connecticut courts continue to characterize the removal of a fiduciary in certain circumstances (such as where the fiduciary is named by will) as an "extraordinary remedy,"[5] a probate court can look to the statute for support, whereas a superior court may require strong evidence of a clear breach of duty to support removal.[6]

Other Jurisdictional Distinctions and Careful Consideration of the Forum. We note that similar distinctions between the express powers of the probate courts and superior courts can be found elsewhere in the Connecticut General Statutes governing trust and estate disputes. See, e.g., Conn. Gen. Stat. § 45a-294 (authorizing "[t]he court of probate having jurisdiction" to reimburse an executor for fees in a will contest). We advise a careful consideration of the forum when initiating or defending a trust or estate dispute.

Wiggin and Dana attorneys routinely serve as experts and co-counsel where trust interests are at issue. We would be happy to discuss our additional thoughts on this case and its potential implications.


[1] The case was brought initially to invalidate the trust amendment that had entrenched those trustees. In a prior ruling issued in July 2017, the Court upheld the validity of the trust amendment, while teeing up a future proceeding on the removal of the trustees.

[2] See id. § 45a-242(a)(3). Other new grounds at (a)(2) and (a)(4).

[3] See id. § 45a-242(c) (extending the power to "the court having jurisdiction").

[4] See Rodowicz, 2018 WL 1885655, at *3-4.

[5] Cadle Co. v. D'Addario, 268 Conn. 441, 459 (2004).

[6] See also Cadle Co. v. D'Addario, 2007 WL 1532356, at *3 (Conn. Super. Ct. Apr. 12, 2007) ("the proper venue for removal of a fiduciary is the probate court").

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