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THE PETITION ALLEGED THE DECEASED CO-TRUSTEE CONCEALED THE TRUST AND DISTRIBUTIONS TO THE TRUST BENEFICIARIES; PETITIONERS HAD STANDING TO SEEK DISGORGEMENT OF THE COMMISSIONS PAID TO THE DECEASED CO-TRUSTEE UNDER “BREACH OF FIDUCIARY DUTY” AND “FAITHLESS SERVANT” THEORIES (FIRST DEPT).

The First Department, reversing Supreme Court, determined the petition alleging Kendall Chen, the deceased co-trustee of his father’s trust, breached his fiduciary duty to the trust and to the trust beneficiaries, and alleging a “faithless servant” claim, should not have been dismissed. Kendall allegedly concealed the existence of the trust from the beneficiaries (his children). Petitioners had standing to seek disgorgement of the commissions paid to Kendall:

The petition alleged that Kendall actively subverted the trust’s stated purpose insofar as, from 2000 until 2016, he concealed from his children the existence of the trust and the joint bank accounts into which distributions from the trust were made for each grandchild, and converted a significant portion of those funds for his personal financial benefit. If proven, Kendall’s conduct constituted a breach of his fiduciary duty to the trust (as well as to his children), and the trust may recover the commissions paid to him at a time when he was a faithless servant, even if the trust suffered no damages … .

Indeed, the trust was damaged by Kendall’s receipt of commissions at a time when he allegedly breached his fiduciary duty to the trust, and it is for that reason that petitioners have standing to seek disgorgement of the commissions paid to Kendall from 2000 to 2015. The corpus of the trust was diminished by the payment of the commissions when Kendall was diverting to himself the distributions intended for his children. …

We reject the estate’s argument that the faithless servant claim is unpreserved. The doctrine has a “close relationship and overlap” with breach of fiduciary duty, which petitioners did raise before the motion court … .  Matter of Chen, 2025 NY Slip Op 06255, First Dept 11-13-25

Practice Point: Here it was alleged the co-trustee concealed the existence of the trust and distributions from the trust from his children, the beneficiaries of the trust. The petitioners had standing to seek disgorgement of the commissions paid to the co-trustee under “breach of fiduciary duty” and “faithless servant” theories.

 

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