Trusts and Estates Litigation in the COVID-19 Era – Balancing Public Health and Litigants’ Rights

April 10, 2020Alerts

Litigators in Fox Rothschild’s Fiduciary Litigation Practice are persevering to protect their clients’ interests in the face of logistical challenges posed by the COVID-19 crisis. The recent experiences of two of the firm's litigators provide an excellent road map for addressing courts’ public policy concerns in balancing litigants’ rights and public health considerations during the pandemic.

Outlined below, the cases demonstrate that while public policy is always a major consideration in actions that sound in equity; it is more important than ever today. Litigators should be prepared to show the court not only why their position is correct as a matter of law and equity, but how their requests for relief will not negatively impact public health. 

  • In a case before the Delaware Court of Chancery, firm attorneys prevailed in removing a trustee and having its client, the beneficiary, installed in the trustee’s place. The post-trial order required the now-former trustee to provide certain information under oath regarding the status of the trust. In an effort to delay providing this information, the former trustee argued that COVID-19 concerns prohibited him from accessing a notary. Fortunately, because the Delaware Supreme Court had recently relaxed the requirements for most sworn documents required to be filed in court, the former trustee was able to provide a statement under oath without the need for a notary. New procedures, put in place to address COVID-19 health concerns, prevented the former trustee from escaping his obligations under the post-trial order.
  • In a case pending in New Jersey, our attorneys demonstrated grounds for removing a fiduciary, but — in light of COVID-19 — the court was hesitant to grant relief that could require non-essential activities. The court reasoned, for example, that a replacement fiduciary might have to appear at a bank to obtain signing authority on the relevant accounts. In lieu of removal, the court ordered the fiduciary to provide a certified inventory and stated that criminal prosecution could result if further discovery demonstrated that the fiduciary had withheld assets or income.  The court entered all other requested relief.

These examples highlight the importance of keeping abreast of the latest measures taken by applicable judicial venues to preserve litigants' rights while protecting public health, in order to identify avenues to reach appropriate outcomes.