EFiled: Oct 11 2017 04:07PM EDT
Transaction ID 61232050
Case No. 12836-VCS
IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
DOUGLAS W. DU PONT, :
:
Petitioner, :
:
v. : C.A. No. 12836-VCS
:
WILMINGTON TRUST COMPANY, :
:
Respondent. :
MEMORANDUM OPINION
Date Submitted: August 28, 2017
Date Decided: October 6, 2017
Date Revised: October 11, 2017
Matthew P. D’Emilio, Esquire and Thomas A. Uebler, Esquire of Cooch and
Taylor, P.A., Wilmington, Delaware, Attorneys for Petitioner.
Robert S. Saunders, Esquire of Skadden, Arps, Slate, Meagher & Flom LLP,
Wilmington, Delaware, Attorney for Respondent.
SLIGHTS, Vice Chancellor
This case concerns the trusteeship of five “total return” unitrust trusts
(the “Trusts”). Petitioner, Douglas W. du Pont (“Mr. du Pont” or “Petitioner”), is
the current beneficiary of the Trusts. Respondent, Wilmington Trust Company
(“Wilmington Trust” or “Respondent”), is the trustee of the Trusts.
In February 2016, Mr. du Pont requested that Wilmington Trust resign as
trustee. Wilmington Trust refused. Mr. du Pont then filed a “Petition to Remove
Wilmington Trust Company as Trustee and Appoint Charles Schwab Trust
Company of Delaware as Trustee” (“Petition”) with this Court. The Petition seeks
an order removing Wilmington Trust as trustee pursuant to 12 Del. C. § 3327(3)
and appointing a successor trustee—either Charles Schwab Trust Company of
Delaware (“Charles Schwab”) or a “suitable alternate successor trustee.”1
Wilmington Trust has filed a motion to dismiss the Petition pursuant to Court of
Chancery Rule 12(b)(6).
For the reasons that follow, Respondent’s motion to dismiss is GRANTED,
and the Petition is dismissed with prejudice.
I. BACKGROUND
The facts are drawn from allegations in the Petition, documents integral to
the Petition and those matters of which the Court may take judicial notice. I have
assumed as true all well-pled factual allegations in the Petition.
1
Pet. ¶ 57; id. ¶¶ 47–56, 60.
1
A. The Parties
Mr. du Pont is the current beneficiary of the Trusts. He is married to Sarah
du Pont and has four children, all of whom are sui juris. Wilmington Trust is a
Delaware non-depository trust company headquartered in Wilmington, Delaware,
and is a wholly-owned subsidiary of M&T Bank Corporation (“M&T Bank”), a
New York business corporation.
B. The Trusts
The Trusts were created pursuant to four trust agreements and one will
(collectively, the “Trust Agreements”). The Trust Agreements appoint
Wilmington Trust as lone trustee of the Trusts, and Wilmington Trust has served in
that role since the Trusts were created in the 1940s and 1950s. The Trust
Agreements are silent regarding removal of the trustee or appointment of a
successor trustee.
In 2013, Wilmington Trust agreed to petition the Court of Chancery
to modify the Trust Agreements to insert provisions that authorize an “Investment
Direction Advisor” to direct all investment decisions for the Trusts. 2 The
modification was prompted in part because Mr. du Pont was dissatisfied with
Wilmington Trust’s administration of the Trusts. While Wilmington Trust did not
2
Pet. ¶ 26.
2
agree with Mr. du Pont’s criticisms, it agreed to petition for the modification,
which this court granted.
Under the modified Trust Agreements, Mr. du Pont is designated as the
Investment Direction Advisor for the Trusts and Wilmington Trust is
“relegated . . . to a purely administrative directed-trustee role.”3 In this reduced
role, Wilmington Trust now “has no investment authority or discretion over the
Trusts’ assets.”4
C. Wilmington Trust’s Alleged Misadministration of the Trusts
Petitioner alleges that “[f]or years, Wilmington Trust has improperly
administered the Trusts, to the detriment of the Trusts and their beneficiaries.” 5 As
particular examples, Petitioner alleges:
Wilmington Trust “miscalculat[ed] the amount of Mr. du Pont’s
unitrust distribution”;
There has been “minimal contact by trust advisers (few in-person
meetings and infrequent contact)”; and
3
Pet. ¶ 27; see, e.g., Pet. Ex. A (Trust Agreement of Lammot du Pont dated July 18,
1941 (as modified)), ¶¶ 6–7 (creating “Investment Direction Advisor” role; delineating
the powers and responsibilities of that role). The Trust Agreements, attached to the
Petition as Exhibits A–D, are integral to the Petition and incorporated therein by
reference. Accordingly, the Court may consider the Trust Agreements in deciding this
motion to dismiss. See In re Crimson Exploration Inc. S’holder Litig., 2014
WL 5449419, at *8 (Del. Ch. Oct. 24, 2014).
4
Pet. ¶ 27; see, e.g., Pet. Ex. A, ¶¶ 6–7.
5
Pet. ¶ 22.
3
Wilmington Trust rejected Mr. du Pont’s “reasonable request in
2015 for money to cover tax liabilities.”6
Petitioner further alleges, “Wilmington Trust’s improper administration
[of the Trusts] has resulted in a loss of confidence by the du Ponts in Wilmington
Trust and, unfortunately, created hostility between [them].”7
D. Wilmington Trust as Lender and Estate Planner
Apart from its role as trustee, Wilmington Trust has also acted as lender and
estate planner to Mr. du Pont. “As lender, Wilmington Trust . . . overextended
credit to Mr. du Pont, collateralized his personal assets, including his revocable
trust and cash account, and reduced his unitrust payout.”8 When Mr. du Pont
struggled to repay the Wilmington Trust loan, Wilmington Trust “caused [him] to
liquidate low-basis assets to pay down a portion of the loan, resulting in millions of
dollars of otherwise-unnecessary capital-gains tax.”9
As estate planner, Wilmington Trust did not inform Mr. du Pont that the
Trusts would bypass his wife upon his death. Based on Wilmington Trust’s
provision of incomplete or incorrect information, Mr. du Pont and his wife made
“substantial irrevocable gifts . . . to trusts for their children naming Wilmington
6
Pet. ¶ 23.
7
Pet. ¶ 25.
8
Pet. ¶ 31.
9
Pet. ¶ 32.
4
Trust as trustee[] . . . .”10 Mr. du Pont would not have made such gifts had
Wilmington Trust advised him that his wife would not benefit from the Trusts after
his death.
E. Changes at Wilmington Trust Since the Creation of the Trusts
Petitioner alleges that “[t]he Wilmington Trust that is a party to this action is
not the same Wilmington Trust that the du Ponts entrusted in the 1940s and 1950s
to serve as trustee of the Trusts.”11 In the 1940s and 1950s, Wilmington Trust
“was closely associated with the du Ponts.”12 And for many years thereafter,
“Wilmington Trust [remained] an independent Delaware-based bank, managed, in
part, by members of the du Pont family . . . .”13
In the wake of the 2008 financial crisis, Wilmington Trust’s “business nearly
collapsed, which led to federal-government investigations, lawsuits, and
indictments . . . .”14 Following the near-collapse of its business, Wilmington Trust
was acquired by a New York-based bank—M&T Bank. Today, Wilmington Trust
is a wholly-owned M&T subsidiary and its “chairman and most of its other
10
Id.
11
Pet. ¶ 33.
12
Pet. ¶ 34.
13
Pet. ¶ 35.
14
Pet. ¶ 36.
5
directors are longtime M&T officers and directors.”15 “Not a single member of the
du Pont family remains on the [Wilmington Trust] board.”16 Thus, Petitioner
alleges, “Wilmington Trust’s governance, business, culture, and du Pont
relationship would be unrecognizable to the trustors of the Trusts. The Wilmington
Trust once trusted by Mr. du Pont’s forebears is gone.”17
F. This Litigation
In February 2016, Mr. du Pont requested that Wilmington Trust resign as
trustee of the Trusts. Wilmington Trust refused. Mr. du Pont responded on
October 19, 2016, by filing the Petition. In his Petition, Mr. du Pont asks the Court
to remove Wilmington Trust as trustee of the Trusts pursuant to 12 Del. C.
§ 3327(3) (“Section 3327(3)”) and to appoint a successor trustee—either Charles
Schwab or a “suitable alternate successor trustee.”18 As grounds for removal, the
Petition alleges that:
1. Since the creation of the Trusts and the appointment of
Wilmington Trust as trustee, a substantial change in circumstances
has occurred;
2. Wilmington Trust is unfit, unwilling, or unable to administer the
Trusts properly; and
15
Pet. ¶ 37.
16
Id.
17
Pet. ¶ 38.
18
Pet. ¶ 57; id. ¶¶ 47–56, 60.
6
3. Hostility between Wilmington Trust and Mr. du Pont threatens the
efficient administration of the Trusts.19
Wilmington Trust filed a motion to dismiss the Petition pursuant to Court of
Chancery Rule 12(b)(6) on December 2, 2016. The Court heard oral argument on
that motion on August 28, 2017.
II. ANALYSIS
“The standards governing a motion to dismiss for failure to state a claim are
well settled: (i) all well-pleaded factual allegations are accepted as true; (ii) even
vague allegations are ‘well-pleaded’ if they give the opposing party notice of the
claim; (iii) the court must draw all reasonable inferences in favor of the nonmoving
party; and (iv) dismissal is inappropriate unless the plaintiff would not be entitled
to recover under any reasonably conceivable set of circumstances susceptible of
proof.”20
As noted, I have accepted as true all well-pled factual allegations in
Mr. du Pont’s Petition and have drawn all reasonable inferences in his favor. Even
so, for reasons I explain below, I cannot reasonably conceive how Section 3327(3)
would warrant the removal of Wilmington Trust as trustee of the Trusts.
19
Pet. ¶ 50.
20
Savor, Inc. v. FMR Corp., 812 A.2d 894, 896–97 (Del. 2002).
7
A. Section 3327(3)
Section 3327(3) sets forth certain bases for judicial removal of a trustee
despite the absence of a breach of trust; i.e., judicial removal of a trustee even
where the trustee has not violated a duty owed to the beneficiary.21 Under
Section 3327(3), the Court of Chancery may remove a trustee on the petition of a
beneficiary if the court, “having due regard for the expressed intention of the
trustor and the best interests of the beneficiaries,” determines that, despite the
absence of a breach of trust—
(a) there has been “a substantial change in circumstances”; or
(b) the trustee is unfit, unwilling, or unable to administer the trust
properly; or
(c) “hostility between the trustee and beneficiaries . . . threatens the
efficient administration of the trust.”22
B. No “Substantial Change in Circumstances”
Delaware courts have not construed the phrase “a substantial change in
circumstances” within Section 3327(3)(a). There is, however, useful guidance in
an official comment to Section 706 of the Uniform Trust Code (“UTC”), which
21
See 12 Del. C. § 3581(a) (defining a “breach of trust” as “[a] violation by a trustee of a
duty the trustee owes to a beneficiary”).
22
12 Del. C. § 3327(3).
8
contains a removal provision very similar to Section 3327(3)(a).23 This official
comment explains that:
Changed circumstances justifying removal of a trustee might include a
substantial change in the character of the service or location of the
trustee. A corporate reorganization of an institutional trustee is not
itself a change of circumstances if it does not affect the service
provided the individual trust account.24
With this explanation in mind, it is not reasonably conceivable that there has
been a “substantial change in circumstances” that would justify the removal of
Wilmington Trust as trustee. First, Petitioner’s allegations regarding “federal-
government investigations, lawsuits, and indictments”25—as pled—do not allow a
reasonable inference of a substantial change in Wilmington Trust’s trustee services
(whether in character or otherwise). Petitioner does not allege (or even suggest)
any connection between Wilmington Trust’s legal tribulations and its delivery of
trustee services. Nor does Petitioner allege that any of the individuals investigated,
sued or indicted were or are associated with Wilmington Trust’s trust services
23
Specifically, UTC § 706(b)(4) authorizes judicial removal of a trustee where there has
been “a substantial change of circumstances . . . , [and] the court finds that removal of the
trustee best serves the interests of all of the beneficiaries and is not inconsistent with a
material purpose of the trust, and a suitable . . . successor trustee is available. Unif. Trust
Code § 706(b)(4) (amended 2010). This court has previously consulted the Uniform
Trust Code to aid its interpretation of Delaware’s Trust Code. See, e.g., In re Mary R.
Latimer Trust, 78 A.3d 875, 884 (Del. Ch. 2013) (comparing UTC and Delaware Trust
Code provisions concerning judicial modification of non-charitable trusts).
24
UTC § 706 cmt.
25
Pet. ¶ 36.
9
business (or have been involved with the Trusts in any capacity). Consequently,
the Petition offers no sound basis to infer the existence of a connection between
any “investigations, lawsuits, and indictments” involving Wilmington Trust and its
role as trustee.26
Second, M&T’s 2011 acquisition of Wilmington Trust does not constitute a
“substantial change in circumstances” for purposes of Section 3327(3)(a).
Petitioner does not allege how (if at all) M&T’s acquisition of Wilmington Trust
has “affected the service [that Wilmington Trust] provide[s] [the Trusts].”27 Nor
does Petitioner allege that there has been a “substantial change” in Wilmington
Trust’s location that has rendered the trustee less available to him.28 Indeed, the
Petition specifically states that “Wilmington Trust . . . is a Delaware non-
depository trust company with its principal place of business in Wilmington,
Delaware.”29 Accordingly, I cannot reasonably conceive how M&T’s acquisition
26
Pet. ¶ 36. See In re Morton’s Rest. Gp., Inc. S’holders Litig., 74 A.3d 656, 660
(Del. Ch. 2013) (On a motion to dismiss under Chancery Rule 12(b)(6), the court need
only “accept those reasonable inferences that flow “logically” from the non-
conclusory facts pled in the Complaint[;] . . . [it need not] accept ‘every strained
interpretation of the allegations proposed by the plaintiff.’” (quoting Malpiede v.
Townson, 780 A.2d 1075, 1083 (Del. 2001))).
27
UTC § 706 cmt. (“A corporate reorganization of an institutional trustee is not itself a
change of circumstances if it does not affect the services provided the individual trust
accounts.”).
28
Id.
29
Pet. ¶ 2.
10
of Wilmington Trust constitutes a “substantial change in circumstances”
warranting its removal as trustee of the Trusts.
Finally, the 2013 modifications to the Trust Agreements do not constitute a
“substantial change in circumstances” that would warrant removal. Under the
modified Trust Agreements, the Trusts are administered as follows:
Wilmington Trust, as trustee, is responsible for calculating a four-
percent annual unitrust payment for each of the five Trusts and
distributing those payments to Mr. du Pont in monthly
installments.
Wilmington Trust “has no investment authority or discretion over
the Trusts’ assets.”30 Such authority (and discretion) is instead
reposed in the Trusts’ Investment Direction Advisor—currently
Mr. du Pont.31
Mr. du Pont, in his capacity as Investment Direction Advisor,
directs Wilmington Trust as to how the Trusts’ assets are to be
deployed.32
Wilmington Trust, as “directed trustee,” carries out such
directions, being obligated to do so under the modified Trust
Agreements.33
Wilmington Trust, as trustee, retains limited (but sole) discretion
under two of the Trust Agreements (as modified) to make
30
Pet. ¶ 27.
31
See, e.g., Pet. Ex. A, ¶¶ 6–7; Pet. Ex. B (Trust Agreement of Margaret F. du Pont dated
May 13, 1954 (as modified)), ¶¶ 7–8; Pet. Ex. C (Trust Agreement of Margaret F.
du Pont dated July 8, 1954 (as modified)), ¶¶ 7–8; Pet Ex. D (Will of Lammot du Pont,
Jr. dated Oct. 1, 1954 (as modified)), at art. 13.
32
See, e.g., Pet. Ex. A, ¶¶ 6–7; Pet. Ex. C, ¶¶ 7–8; Pet. Ex. D, at art. 13.
33
Pet. ¶ 27; see, e.g., Pet. Ex. A, ¶ 6(b)–(e); Pet. Ex. C, ¶ 7(b)–(e).
11
payments of the corresponding Trusts’ principal to Mr. du Pont as
necessary to meet his and his dependents’ “essential needs”;
provided that Wilmington Trust makes a prior determination that
“the [trust] funds payable . . . for the benefit of [Mr. du Pont],
together with the funds available to [him] from other sources, are
insufficient to provide properly for the essential needs . . . of
[Mr. du Pont] and his . . . dependents . . . .”34
The 2013 modifications to the Trust Agreements unquestionably “affect[]
the service [that Respondent] provide[s] [the Trusts].”35 The modified Trust
Agreements limit Wilmington Trust’s discretion and narrow the scope of its role.
Indeed, the trustee’s functions under the modified instruments are principally
ministerial in nature (albeit not exclusively so). I cannot reasonably conceive how
this change in Wilmington Trust’s role, instigated by Mr. du Pont, warrants its
removal as trustee.
Under Section 3327(3), the court must “hav[e] due regard for the expressed
intention of the trustor . . . .”36 Accordingly, insofar as the modified Trust
Agreements keep intact the arrangement contemplated by the original instruments,
I must have “due regard” for that arrangement.37 Here, the Trust Agreements
34
Pet. Ex. A, ¶ 3; Pet. Ex. D, at art. 9.
35
UTC § 706 cmt.
36
12 Del. C. § 3327(3).
37
See In re Trust Under Will of Flint for the Benefit of Shadek, 118 A.3d 182, 194
(Del. Ch. 2015) (Different jurisdictions have taken different positions on “whether the
wishes of living beneficiaries should prevail over the wishes of a dead settlor . . . . In
Delaware, the settlor’s [expressed] intent controls.”).
12
expressly appoint Wilmington Trust as trustee of the Trusts and are silent as to
removal of the trustee. That being so, I cannot reasonably conceive how removing
Wilmington Trust as trustee of the Trusts is consistent with a “due regard” for the
trustors’ expressed intention. The 2013 modifications to the Trust Agreements do
not alter that intent or otherwise justify the removal of Wilmington Trust as trustee.
C. It is Not Reasonably Conceivable That Wilmington Trust is Unwilling,
Unfit or Unable to Administer the Trusts Properly.
Based on the Petition’s well-pled factual allegations, it is not reasonably
conceivable that Wilmington Trust is unwilling, unfit or unable properly to
perform the functions assigned to it under the modified Trust Agreements. First,
the Petition contains no well-pled allegations that Wilmington Trust is unwilling
properly to perform its present functions. “Unwillingness” includes cases “where
the trustee refuses to act” or otherwise exhibits “a pattern of indifference to some
or all of the beneficiaries.”38 Here, the Petition does not allege that Wilmington
Trust has refused to perform the functions assigned to it under the modified Trust
Agreements. The fact that Wilmington Trust, in the exercise of its discretion,
rejected Mr. du Pont’s “reasonable request in 2015 for money to cover tax
38
UTC § 706 cmt.
13
liabilities”39 does not constitute an “unwillingness” to perform. Wilmington Trust
had no absolute obligation to accommodate that request and, in fact, could not
accommodate it without first determining that Mr. du Pont lacked sufficient other
funds to cover his tax liabilities.40 Of course, Mr. du Pont does not allege that he
was without sufficient other funds to cover those liabilities at the time he requested
that the trustee pay them.
Moreover, the Petition falls well short of alleging that Wilmington Trust’s
conduct (as alleged in the Petition) amounts to “a pattern of indifference” 41 to Mr.
du Pont. In this regard, Petitioner’s conclusory allegation of “minimal contact by
trust advisers” is unavailing.42 And his allegation that Wilmington Trust once
miscalculated his unitrust distribution, without more, does not suggest a “pattern of
indifference”43 on Wilmington Trust’s part.
39
Pet. ¶ 23.
40
See Pet. Ex. A, at ¶ 3; Pet. Ex. D, at art. 9.
41
UTC § 706 cmt.
42
Pet. ¶ 23. See Solomon v. Pathe Commc’ns Corp., 672 A.2d 35, 38 (Del. 1996)
(“[C]onclusions [in a complaint] will not be accepted as true without specific allegations
of fact to support them.”) (internal quotation marks and citation omitted); cf. Betty G.
Weldon Revocable Trust ex rel. Vivion v. Weldon ex rel. Weldon, 231 S.W.3d 158, 181
(Mo. Ct. App. 2007) (A “lack of meetings between [co-trustees]” did not establish
indifference to the beneficiary absent evidence that “provisions of the Trust went
unimplemented.”).
43
UTC § 706 cmt. (emphasis added).
14
Second, the Petition contains no well-pled allegations that Wilmington Trust
is unable properly to perform the functions assigned to it under the modified Trust
Agreements. Here again, the fact that Wilmington Trust once miscalculated Mr.
du Pont’s unitrust distribution does not support an inference of general inability.44
Finally, nothing alleged in the Petition would allow a reasonable inference
that Wilmington Trust is unfit to serve as trustee. While the Petition makes much
of Wilmington Trust’s (separate) role as lender and estate planner to Mr. du Pont,
it does not allege how—if at all—that arrangement has interfered with Wilmington
Trust’s proper performance of its functions under the modified Trust Agreements.
Nor has Petitioner well pled a breach of trust on Respondent’s part, viz.—that
Wilmington Trust committed a breach of trust by acting as lender and estate
planner to Mr. du Pont while serving as trustee.45 Trustees are not prohibited from
44
See Walter L. Nossaman & Joseph L. Wyatt, Jr., Trust Adminstration and Taxation
§ 26.11[2] (2017) (“Mistakes in judgment, honestly made, are not ground for removal
[of a trustee], unless the mistakes are of such character or recur so frequently as to
suggest lack of competence to administer the trust . . . .” (citing, inter alia, Will of
Gershcow, 261 N.W.2d 335, 339–340 (Minn. 1977), Manchester v. Cleveland Trust Co.,
168 N.E.2d 745 (Ohio Ct. App. 1960) and Sternberg v. St Louis Union Trust Co., 163
F.2d 714 (8th Cir. 1947) (footnotes omitted))).
45
Ostensibly, if Petitioner believed that Wilmington Trust committed a breach of trust, he
would have sought Wilmington Trust’s removal as trustee of the Trusts under 12 Del. C.
§ 3327(1), which authorizes judicial removal of a trustee where “[t]he trustee has
committed a breach of trust.” Id. In any event, Wilmington Trust’s conduct as lender
and estate planner bears on its fitness vel non as trustee only insofar as such conduct
affects its servicing of the Trusts or the Trusts’ property. See George Gleason Bogert et
al., The Law of Trusts and Trustees § 544 (3d ed. 1977 & Supp. 2016) (“Direct business
dealings” between trustee and beneficiary impose fiduciary duties on the trustee “in so far
15
dealing directly with beneficiaries, provided the beneficiary voluntarily consents to
the transaction after full disclosure of all relevant information.46 Where a trustee
lends money to a beneficiary, the transaction also must be fair to the beneficiary.47
Here, Wilmington Trust could not have acted as lender to Mr. du Pont
except upon his express request and consent. That consent was given. And
Petitioner has not pled that Wilmington Trust failed fully to disclose all relevant
information before making loans to him. Nor has he well pled that Wilmington
as [such dealings] affect th[e] [trust] relationship or the property involved in it, but not if
they are concerned with property owned by either party which is unrelated to the
trust . . . .”); Seven G Ranching Co. v. Stewart Title & Trust of Tucson, 627 P.2d 1088,
1090 (Ariz. Ct. App. 1981) (“When [an institutional] trustee ‘wears two hats’ . . . and the
transaction involved affects the res of the trust, it cannot escape its fiduciary duties by
claiming it was acting in its non-trustee capacity.”) (emphasis added); cf. Matter of
Irrevocable Inter Vivos Trust Established by R. R. Kemske, 305 N.W.2d 755, 762 (Minn.
1981) (“The fact that a bank serves in a dual capacity [as trustee and executor], and as
trustee may have to question its own conduct as executor, does not alter the trustee's duty
to its beneficiaries.”). Here, for reasons explained below, it is at least reasonably
conceivable that Wilmington Trust’s conduct as lender affected the Trusts’ property.
Petitioner has not well pled, however, that Wilmington Trust’s conduct as estate planner
has affected its servicing of the Trusts or the Trusts’ property. I have, nevertheless,
assumed, arguendo, that some connection between Wilmington Trust’s estate planning
and trustee services may have been in play.
46
See Hardy v. Hardy, 2014 WL 3736331, at *8 (Del. Ch. July 29, 2014) (“Self-
interested transactions by fiduciaries are not prohibited altogether, but require the
beneficiary’s voluntary consent to the transaction after full disclosure.”); Restatement
(Third) of Trusts § 78(3) (2007) (“[A] trustee has a duty in dealing with a beneficiary to
deal fairly and to communicate to the beneficiary all material facts the trustee knows or
should know in connection with the matter.”).
47
See Restatement (Third) of Trusts § 78 cmt. g. (explaining that, in this context, a “fair”
transaction is one “for fair and adequate consideration or that . . . is consistent with the
beneficial interests of the beneficiary or beneficiaries in question”).
16
Trust’s loan terms were unfair. His conclusory allegation that Wilmington Trust
“overextended credit to [him]”48 does not support a reasonable inference of
unfairness. Nor can the Court reasonably infer that it was unfair for Wilmington
Trust to “collateralize[] [Mr. du Pont’s] personal assets”49 to secure the loans it
made to him. Lenders often require that individual borrowers pledge collateral to
secure their loan obligations; this is a common practice in arm’s-length lending
transactions. In any event, Mr. du Pont does not allege that Wilmington Trust
somehow deviated from its typical lending practices when it made the loans to
him, nor does he allege that the bank took more collateral than necessary to secure
the loans.
Similarly, the fact that Wilmington Trust (as lender) “caused [Petitioner] to
liquidate low-basis assets to pay down a portion of [his] loan”50 does not support
an inference of unfairness that would justify removal. That a lender expects the
borrower to repay the loan on the terms agreed to is hardly remarkable and
48
Pet. ¶ 31. See Solomon, 672 A.2d at 38 (“[C]onclusions [in a complaint] will not
be accepted as true without specific allegations of fact to support them.”)
(internal quotation marks and citation omitted). It is unclear what exactly Petitioner
means when he alleges that Wilmington Trust “overextended credit to [him] . . . .”
Pet. ¶ 31. Insofar as Mr. du Pont believes that Wilmington Trust knew or should have
known that he would be unable to repay his loans, he has not expressed that belief in his
Petition.
49
Pet. ¶ 31.
50
Pet. ¶ 32.
17
certainly is no evidence of unfair lending practices. Petitioner has not advanced
any allegation(s) or credible arguments to the contrary.
Finally, the fact that Wilmington Trust’s conduct (as lender) may have
“reduced [Petitioner’s] unitrust payout” does not support an inference of
unfairness.51 I note that the Petition does not explain how this reduction was
accomplished, which makes it difficult to assess how this allegation supports
Petitioner’s claim for removal.52 As best as I can tell, it appears that the reduction
was incidental to the secured credit arrangement between Wilmington Trust and
51
Pet. ¶ 31 (“As lender, Wilmington Trust overextended credit to Mr. du Pont,
collateralized his personal assets, including his revocable trust and cash account, and
reduced his unitrust payout.”).
52
For instance, Petitioner does not allege that he pledged his beneficial interest in the
Trusts to Wilmington Trust to secure his loan obligations—an action that would likely
violate the spendthrift provisions in the Trust Agreements. See Pet. Ex. A, ¶ 4
(“The interest of any beneficiary hereunder, in either the income or principal of any trust
hereunder, shall not be . . . assigned or transferred by such beneficiary . . . .”); Pet. Ex. B,
¶ 5 (same); Pet. Ex. D, at art. 10 (same); Restatement (Third) of Trusts § 58 cmt. c (2003)
(“A spendthrift restraint prevents the transfer of a trust beneficiary's interest to another,
whether . . . by gift, sale, or exchange, or as security for a new or existing debt.”). Absent
such an allegation, the Court cannot reasonably infer that the parties took such action.
See Malpiede, 780 A.2d at 1083. I also note that the modified Trust Agreements
specifically empower the Trusts’ Investment Direction Advisor (i.e., Mr. du Pont) “to
borrow from the Trustee itself and any of its affiliates and to mortgage, pledge or
encumber such portion of the Trust property as may be required to secure any loans or
indebtedness . . . .” Pet. Ex. A, ¶ 6(c); Pet. Ex. B, ¶ 7(c) (same); Pet. Ex. C, ¶ 7(c) (same);
Pet. Ex. D, at art. 13(c) (same). If Petitioner (as the Trusts’ Investment Direction
Advisor) borrowed money from Wilmington Trust, and collateralized such borrowing(s)
with property of the Trusts, such an arrangement could then reduce the net income of one
or more of the Trusts. And such a reduction would, in turn, reduce Petitioner’s unitrust
payout. None of this has been pled, however.
18
Petitioner.53 Yet the existence of such an arrangement, without more, does not
support an inference of unfairness.
With regard to Wilmington Trust’s role as estate planner, Wilmington Trust
likewise could not have assumed that role except upon Mr. du Pont’s express
request and consent. That consent was given. Mr. du Pont alleges, however, that
“Wilmington Trust did not inform [him] that the Trusts would bypass his wife at
his death” which, in turn, caused him and his wife to make “substantial irrevocable
gifts . . . to trusts for their children naming Wilmington Trust as trustee[].”54 He
further alleges that he and his wife would not have made such gifts had they known
that she would not benefit from the Trusts after his death. To be sure, if
Wilmington Trust as estate planner knew or should have known that the Trusts
would bypass Petitioner’s wife upon his death, and knew or should have known
that Petitioner did not appreciate that fact (and its relevance), it should have
disclosed that fact to Petitioner.55
53
As noted in footnote 52, supra, the reduction in Petitioner’s unitrust payout may be
attributable to Petitioner’s having taken certain actions in his capacity as the Trusts’
Investment Direction Advisor. Again, the Petitioner’s lack of well-pled facts leaves
much room for speculation but ultimately renders the Petition inadequate to provide
notice of the claims.
54
Pet. ¶ 32.
55
See Hardy, 2014 WL 3736331, at *8 (requiring disclosure of conflict transactions).
19
Here, however, the Petition contains no well-pled factual allegations
regarding the nature of the estate planning services that Mr. du Pont and his wife
sought from Wilmington Trust—or what they communicated to Wilmington Trust
about their estate planning goals. Consequently, the Court is unable to infer that
Wilmington Trust knew or should have known the relevance of the fact that the
Trusts would bypass Petitioner’s wife upon his death.
Even assuming, arguendo, that Wilmington Trust knew or should have
known the relevance of that fact to Petitioner’s estate planning goals, but
negligently failed to disclose it, the Court still cannot reasonably conceive how that
would warrant Wilmington Trust’s removal as trustee of the Trusts. This court
“may only remove a trustee ‘who fails to perform his duties [as trustee] through
more than mere negligence.’”56 Here, the Petition does not set forth well-pled
factual allegations that would allow for a reasonable inference that Wilmington
Trust (as estate planner or trustee) knowingly or even recklessly withheld relevant
information from Petitioner. Consequently, the Court cannot reasonably infer that
Wilmington Trust’s conduct as estate planner renders it unfit to serve as trustee of
the Trusts.
56
In re Unfunded Ins. Trust Agreement of Capaldi, 870 A.2d 493, 495–96 (Del. 2005)
(citation omitted).
20
D. It is Not Reasonably Conceivable That Hostility Between Wilmington
Trust and Mr. du Pont Threatens the Efficient Administration of the
Trusts.
Petitioner asserts that “Wilmington Trust’s improper administration of the
Trusts has resulted in a loss of confidence by the du Ponts in Wilmington Trust
and, unfortunately, created hostility between [them].”57 Yet “[a] mere lack of
confidence in a trustee by the beneficiaries, or the existence of friction between
them, is not a sufficient ground for removal of a trustee. To warrant removal, the
friction or hostility must be of such a nature as to make it impossible for the trustee
to properly perform his duties.”58
Here, the Petition contains no allegations from which the Court can infer that
there is such hostility between Mr. du Pont and Wilmington Trust “as to make it
impossible for [Wilmington Trust] to properly perform [its] duties” under the
modified Trust Agreements.59 Assuming, arguendo, that there is some hostility
between Mr. du Pont and Wilmington Trust, it does not follow that such hostility
57
Pet. ¶ 25.
58
Vredenburgh v. Jones, 1980 WL 6786, at *2 (Del. Ch. June 13, 1980).
59
Id. Indeed, the Petition’s allegations of hostility are conclusory in every sense of that
word. See, e.g., Pet. ¶ 25 (“Wilmington Trust’s improper administration [of the Trusts]
has resulted in a loss of confidence by the du Ponts in Wilmington Trust and,
unfortunately, created hostility between [them].”).
21
would prevent Wilmington Trust from properly performing its trustee duties.60
Stated in the parlance of Rule 12(b)(6), it is not reasonably conceivable that
hostility between Wilmington Trust and Mr. du Pont threatens the efficient
administration of the Trusts.
III. CONCLUSION
For the foregoing reasons, Petitioner has failed to state a claim under 12 Del.
C. § 3327(3) to have Wilmington Trust removed as trustee of the Trusts.
Accordingly, Respondent’s motion to dismiss is GRANTED.61
IT IS SO ORDERED.
60
For instance, it is not reasonably conceivable that periodic squabbles between
Mr. du Pont and Wilmington Trust regarding trust distributions would prevent
Wilmington Trust from properly performing its “purely administrative directed-
trustee role,” Pet. ¶ 27, or any of its other assigned roles. See Broeker v. Ware, 29 A.2d
591, 598 (Del. Ch. 1942) (“[M]ere differences of opinion [between trustee and
beneficiary] are not sufficient to justify removal [of the trustee].”); In re Roberts’ Estate,
35 N.W.2d 756, 759 (Iowa 1949) (Mere “dissatisfaction on the part of [the beneficiary]
because the trustee declined to make disbursements requested by [the beneficiary] . . .
[is] insufficient to justify the removal of the trustee.”); Restatement (Third) of Trusts § 37
cmt. e(1) (2003) (“Beneficiaries may be resentful . . . of reasonable exercise of a trustee’s
discretion with regard to matters of [trust] administration . . . . Such resentment ordinarily
does not warrant removal of the trustee[.]”).
61
Here, Mr. du Pont has opted to stand on the allegations in his Petition; he did not
amend or move to amend his Petition on or before the due date for his answering brief in
opposition to Respondent’s motion to dismiss. Stipulation and Order Governing Briefing
on Resp’t’s Mot. to Dismiss ¶ 2 (Dec. 12, 2016). Consequently, Mr. du Pont may not
now amend or move to amend his Petition, which is dismissed with prejudice. See Ct.
Ch. R. 15(aaa).
22