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transform its sole asset, the class B WCB Holdings membership
units, into a liquid asset. Decedent as CEO and sole member of
Empak’s board of directors determined when Empak redeemed its
stock in each of the seven instances of redemptions prior to his
death, including the last redemption of about $750,000 worth of
Empak stock in 1998 after WCB Holdings was formed. None of the
seven redemptions reduced the membership units owned by BFLP. In
order for BFLP to be able to diversify or take any steps other
than simply holding the class B membership units, decedent would
have had to cause the membership units and the underlying Empak
stock to be redeemed. He chose not to do this. By not redeeming
the WCB membership units held by BFLP, decedent ensured that BFLP
would not engage in asset management. Thereby, decedent
exercised practical control over BFLP and limited its function to
simply holding title to the class B membership units. Whether
decedent caused the WCB membership units held by BFLP and the
underlying Empak stock to be redeemed or not, his ability to
decide whether that event would occur demonstrates the
understanding of the parties involved that decedent retained the
right to control the units transferred to BFLP.
The estate’s argument that the general partner’s fiduciary
duties prevents a finding of an implied agreement is overcome by
the lack of activity following BFLP’s formation and BFLP’s
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