Assertion Of Fee Claim In Trust Litigation Is Not Sufficient Reason To Justify Removal Of Guardian Ad Litem

On January 11, 2012, the Appellate Division considered In the Matter of the Inter Vivos Trust, Joseph Brandes, Grantor (September 12, 1994) and In the Matter of the Inter Vivos Trust, Dorothy Singer, Grantor (December 23, 1999), two non-consolidated but related cases in which a mother/guardian ad litem brought litigation against the trustee of two family trusts that had been established for the benefit of her son. After one of those lawsuits was dismissed by way of summary judgment, the trustee sought fees incurred in defending the litigation. Based upon the fee claim, the Chancery Court removed the mother as guardian ad litem, finding that, because there would be a question as to whether a potential fee award would be against the mother/guardian ad litem or the trust, the mother was in a position of conflict that justified her removal.

In reversing the trial court, the Appellate Division found that the potential for an award of attorney fees against the mother, the trust, or both, was insufficient grounds for removal of a guardian ad litem, which must be “for good cause and based on clear and convincing evidence of misconduct or inability to serve the best interests of the ward.”

A copy of the January 11, 2012 opinion can be found here – In the Matter of the Inter Vivos Brandes and Singer Trusts