• Acknowledgements 7I. Introduction 91. Trends in trust disputes 101.1 Deep fakes and the metaverse 101.2 Family office conflicts 101.3 Compliance-driven conflict, litigation and court activity 112. Common causes of trust disputes 122.1 Poor drafting 122.2 Communication failures 142.3 Lack of education 152.4 Disenfranchisement 162.5 Appointment of the wrong trust officials 162.6 Diminished capacity (including undue influence) 192.7 Challenges of recollection 223. Our approach 22II. Trust dispute avoidance through design 231. Managing the settlor’s expectations 232. Good drafting 243. Creating the appropriate governance structure 273.1 Checks and balances 273.2 Selecting the right person for each role 303.3 Beneficiary committees 363.4 Qualifications 363.5 Fiduciary versus non-fiduciary capacity 393.6 Term limits 393.7 Age limits 403.8 Designing the right process for succession (appointment and removal) 413.9 Compensation 413.10 Sharing information 443.11 Avoiding co-trustee dysfunction 444. Communicating with the beneficiaries (or not): the duty to inform and the use of quiet trusts 475. Incorporating flexibility and adaptability into the trust 505.1 Power to add and remove beneficiaries 515.2 Variation or modification 535.3 Decanting 535.4 Changing situs 545.5 Changing governing law 545.6 Termination 556. Selecting appropriate liability and evidentiary standards 557. Using no-contest or forfeiture provisions to discourage disputes 568. Incorporating processes for non-judicial dispute resolution 579. Getting the litigator’s perspective during the drafting process 5910. ‘Failure mode and effects analysis’: early detection of potential issues and warning signs 66III. Minimising trust disputes through thoughtful execution 691. Family dynamics redux 692. Witnesses 703. Presence of individuals other than the settlor and witnesses 724. Self-imposed formalities 725. Lifetime approval of trusts 73IV. Administration: deploying best practice and procedures 751. Follow the terms of the trust 762. Engage proactively 763. Communicate with the beneficiaries 773.1 Ongoing due diligence 773.2 Proactive trust accounting 794. Maintain good records 804.1 Retention practices and policies – the ‘hit by a bus’ scenario 804.2 Trustees and other trust officials 804.3 Distributions 814.4 Investments 824.5 Conflict transactions 834.6 Compensation 834.7 Taxes 845. Evaluate the trust and administration regularly 845.1 What has changed? 855.2 Would a change of situs be better for the trust? 865.3 Is modification (variation) or decanting warranted? 875.4 Should the trust be divided into separate trusts? 875.5 Are the right people (still) in the right roles? 895.6 Is your reliance on outside guidance (still) reasonable? 895.7 Are the trust officials working together effectively? 916. Evaluate the trust and administration when an issue arises (or maybe not) 927. Utilise experienced litigators outside of litigation 927.1 The devil’s advocate: having a litigator review proposed changes 95V. Reducing the risk of disputes at termination 971. Releases, judicial accountings and indemnification 982. Providing information 1023. Termination fees 1044. Transferring assets 104VI. Managing trust disputes 1071. Avoid exacerbating the problem 1072. Maintain open lines of communication 1103. Taking a thoughtful position 1114. Preserving lawyer–client privilege 1155. Litigation management 1166. Advice for beneficiaries when a dispute arises 118VII. Conclusion 121Notes 122About the authors 129About Globe Law and Business 131

The beauty of this special report is that it contains real-world practitioner guidance, perspective, and insight on issues of critical importance to fiduciaries, trust officials and beneficiaries alike.

• Acknowledgements 7I. Introduction 91. Trends in trust disputes 101.1 Deep fakes and the metaverse 101.2 Family office conflicts 101.3 Compliance-driven conflict, litigation and court activity 112. Common causes of trust disputes 122.1 Poor drafting 122.2 Communication failures 142.3 Lack of education 152.4 Disenfranchisement 162.5 Appointment of the wrong trust officials 162.6 Diminished capacity (including undue influence) 192.7 Challenges of recollection 223. Our approach 22II. Trust dispute avoidance through design 231. Managing the settlor’s expectations 232. Good drafting 243. Creating the appropriate governance structure 273.1 Checks and balances 273.2 Selecting the right person for each role 303.3 Beneficiary committees 363.4 Qualifications 363.5 Fiduciary versus non-fiduciary capacity 393.6 Term limits 393.7 Age limits 403.8 Designing the right process for succession (appointment and removal) 413.9 Compensation 413.10 Sharing information 443.11 Avoiding co-trustee dysfunction 444. Communicating with the beneficiaries (or not): the duty to inform and the use of quiet trusts 475. Incorporating flexibility and adaptability into the trust 505.1 Power to add and remove beneficiaries 515.2 Variation or modification 535.3 Decanting 535.4 Changing situs 545.5 Changing governing law 545.6 Termination 556. Selecting appropriate liability and evidentiary standards 557. Using no-contest or forfeiture provisions to discourage disputes 568. Incorporating processes for non-judicial dispute resolution 579. Getting the litigator’s perspective during the drafting process 5910. ‘Failure mode and effects analysis’: early detection of potential issues and warning signs 66III. Minimising trust disputes through thoughtful execution 691. Family dynamics redux 692. Witnesses 703. Presence of individuals other than the settlor and witnesses 724. Self-imposed formalities 725. Lifetime approval of trusts 73IV. Administration: deploying best practice and procedures 751. Follow the terms of the trust 762. Engage proactively 763. Communicate with the beneficiaries 773.1 Ongoing due diligence 773.2 Proactive trust accounting 794. Maintain good records 804.1 Retention practices and policies – the ‘hit by a bus’ scenario 804.2 Trustees and other trust officials 804.3 Distributions 814.4 Investments 824.5 Conflict transactions 834.6 Compensation 834.7 Taxes 845. Evaluate the trust and administration regularly 845.1 What has changed? 855.2 Would a change of situs be better for the trust? 865.3 Is modification (variation) or decanting warranted? 875.4 Should the trust be divided into separate trusts? 875.5 Are the right people (still) in the right roles? 895.6 Is your reliance on outside guidance (still) reasonable? 895.7 Are the trust officials working together effectively? 916. Evaluate the trust and administration when an issue arises (or maybe not) 927. Utilise experienced litigators outside of litigation 927.1 The devil’s advocate: having a litigator review proposed changes 95V. Reducing the risk of disputes at termination 971. Releases, judicial accountings and indemnification 982. Providing information 1023. Termination fees 1044. Transferring assets 104VI. Managing trust disputes 1071. Avoid exacerbating the problem 1072. Maintain open lines of communication 1103. Taking a thoughtful position 1114. Preserving lawyer–client privilege 1155. Litigation management 1166. Advice for beneficiaries when a dispute arises 118VII. Conclusion 121Notes 122About the authors 129About Globe Law and Business 131

The beauty of this special report is that it contains real-world practitioner guidance, perspective, and insight on issues of critical importance to fiduciaries, trust officials and beneficiaries alike.

• Acknowledgements 7I. Introduction 91. Trends in trust disputes 101.1 Deep fakes and the metaverse 101.2 Family office conflicts 101.3 Compliance-driven conflict, litigation and court activity 112. Common causes of trust disputes 122.1 Poor drafting 122.2 Communication failures 142.3 Lack of education 152.4 Disenfranchisement 162.5 Appointment of the wrong trust officials 162.6 Diminished capacity (including undue influence) 192.7 Challenges of recollection 223. Our approach 22II. Trust dispute avoidance through design 231. Managing the settlor’s expectations 232. Good drafting 243. Creating the appropriate governance structure 273.1 Checks and balances 273.2 Selecting the right person for each role 303.3 Beneficiary committees 363.4 Qualifications 363.5 Fiduciary versus non-fiduciary capacity 393.6 Term limits 393.7 Age limits 403.8 Designing the right process for succession (appointment and removal) 413.9 Compensation 413.10 Sharing information 443.11 Avoiding co-trustee dysfunction 444. Communicating with the beneficiaries (or not): the duty to inform and the use of quiet trusts 475. Incorporating flexibility and adaptability into the trust 505.1 Power to add and remove beneficiaries 515.2 Variation or modification 535.3 Decanting 535.4 Changing situs 545.5 Changing governing law 545.6 Termination 556. Selecting appropriate liability and evidentiary standards 557. Using no-contest or forfeiture provisions to discourage disputes 568. Incorporating processes for non-judicial dispute resolution 579. Getting the litigator’s perspective during the drafting process 5910. ‘Failure mode and effects analysis’: early detection of potential issues and warning signs 66III. Minimising trust disputes through thoughtful execution 691. Family dynamics redux 692. Witnesses 703. Presence of individuals other than the settlor and witnesses 724. Self-imposed formalities 725. Lifetime approval of trusts 73IV. Administration: deploying best practice and procedures 751. Follow the terms of the trust 762. Engage proactively 763. Communicate with the beneficiaries 773.1 Ongoing due diligence 773.2 Proactive trust accounting 794. Maintain good records 804.1 Retention practices and policies – the ‘hit by a bus’ scenario 804.2 Trustees and other trust officials 804.3 Distributions 814.4 Investments 824.5 Conflict transactions 834.6 Compensation 834.7 Taxes 845. Evaluate the trust and administration regularly 845.1 What has changed? 855.2 Would a change of situs be better for the trust? 865.3 Is modification (variation) or decanting warranted? 875.4 Should the trust be divided into separate trusts? 875.5 Are the right people (still) in the right roles? 895.6 Is your reliance on outside guidance (still) reasonable? 895.7 Are the trust officials working together effectively? 916. Evaluate the trust and administration when an issue arises (or maybe not) 927. Utilise experienced litigators outside of litigation 927.1 The devil’s advocate: having a litigator review proposed changes 95V. Reducing the risk of disputes at termination 971. Releases, judicial accountings and indemnification 982. Providing information 1023. Termination fees 1044. Transferring assets 104VI. Managing trust disputes 1071. Avoid exacerbating the problem 1072. Maintain open lines of communication 1103. Taking a thoughtful position 1114. Preserving lawyer–client privilege 1155. Litigation management 1166. Advice for beneficiaries when a dispute arises 118VII. Conclusion 121Notes 122About the authors 129About Globe Law and Business 131

The beauty of this special report is that it contains real-world practitioner guidance, perspective, and insight on issues of critical importance to fiduciaries, trust officials and beneficiaries alike.