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The record presented by petitioner to support its contention
that Paul Jablonski was vested with the authority to institute
this action on its behalf is inadequate. Considering the lack of
formality observed in the execution of the Fennel trust
instrument and related documents, we have serious doubts that the
trust was validly formed. Nevertheless, assuming arguendo that
it was, petitioner failed to prove that Paul Jablonski possessed
the capacity to institute this action unilaterally.
Where a private trust is administered by two or more
trustees, the general rule is that unanimity among the trustees
is required for actions taken on behalf of the trust, except
where this requirement is modified by the terms of the trust
instrument or by statute. Scott, The Law of Trusts, sec. 194, at
161 (4th ed. 1988), and cases cited therein. Consistent with this
principle, the Fennel trust instrument states in pertinent part
that “no power shall be exercised, nor any action taken, by the
Trustees except upon the unanimous consent of all Trustees having
authority”.
In the absence of any credible evidence that Cypress
Management resigned as Fennel’s trustee, we conclude that Paul
Jablonski and Cypress Management were cotrustees of Fennel at the
time that the petition was filed. The record indicates that Paul
Jablonski commenced this action without informing, or obtaining
the consent of, his cotrustee. Moreover, we are not aware of any
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