Breach of Fiduciary Duty Claims Against Trustees/Managers of Closely Held Businesses

Recording of a 90-minute CLE webinar with Q&A

Conducted on Tuesday, July 16, 2019

Recorded event now available

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Program Materials

This CLE webinar will guide estate planning counsel, fiduciary advisers, and litigators in pursuing and defending breach of fiduciary duty claims against trustees whose trusts have significant or controlling interests in closely held businesses. These circumstances often arise after the death of a principal owner or founder. The panel will discuss the risks of an employee or officer of a closely held business serving as a trustee, detail possible issues concerning conflicts of interest, and describe various states' rules and approaches to claims against trustees/managers after the death of a principal owner of a closely held corporation.


Breach of fiduciary duty claims often arise in the context of closely held businesses held in trust. Estate planning by the owner or founder may result in placing some or all of the company in a trust. Disputes often arise when the trustee also serves as an officer or manager of the business owned or controlled by the trust.

The legal standards for measuring the actions and decisions of a trustee and an officer and director are different and potentially conflicting. Striking a balance between differing legal standards, the needs of the ongoing business, the directives of the trust, and the wishes of the beneficiaries can be challenging, frequently leading to breach of duty claims against the trustee.

Conflicts can arise regarding whether to make distributions from the trust, how to manage the business, or even in determining whether to sell part or all of the company. These conflicts lead to the question of whether the trustee is complying with his fiduciary duty to act in the interests of the beneficiaries.

While the "business judgment" rule often protects a trustee acting as an officer/manager when making these decisions, the trustee's fiduciary duties require a higher standard in evaluating decisions. As a result, some jurisdictions are applying an enhanced scrutiny standard of review to determine whether a trustee is entitled to rely upon the business judgment rule, with some courts holding that a stricter "fairness standard" of scrutiny is appropriate for trustees/managers.

Counsel involved in breach of fiduciary duty claims involving trusts holding closely held business assets must evaluate the level of scrutiny courts will impose on trustees/managers in these types of disputes.

Listen as our experienced panel provides a practical guide to the issues involved in pursuing or defending breach of fiduciary duty claims against trustees who are also officers or managers of closely held businesses held by trusts.



  1. Breach of fiduciary duty claims against trustees who are also officers or managers of closely held businesses held in whole or in part by a trust
    1. Management decisions, including distribution, capital expenditures, diversification of business lines, and sale or divestiture of some or all of the business
    2. Improper delegation claims
    3. Conflict of interest claims
  2. Business judgment rule application, including legislative initiatives
  3. Enhanced scrutiny, fairness standard and gross negligence in evaluating business decision-making
  4. Documentation to evaluate fiduciary's discretion


The panel will review these and other critical topics:

  • Identifying increased possibility of conflict of interest claims due to having to strike a balance between the duties owed as trustee and those owed as officer/manager
  • How courts apply the standard of fiduciary duty and the business judgment rule in evaluating whether a trustee/manager acted correctly
  • Business judgment rule presumptions relating to the good faith and ordinary care of the trustee serving as officer/manager, and how to rebut those presumptions
  • What types of documents and fact patterns impact whether the trustee/manager can demonstrate that they met their fiduciary duties and obligations


Fair, Kenneth
Kenneth J. Fair

Wright Close & Barger

Mr. Fair's practice focuses on in the area of general commercial litigation, with an emphasis on complex probate,...  |  Read More

Port, Robert
Robert C. Port

Gaslowitz Frankel

Mr. Port has extensive experience in general commercial litigation and fiduciary disputes involving wills, trusts,...  |  Read More

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