In Re Trust of Friedenson

Vermont Superior Court
Filed 24
Lamoille unit

VERMONT SUPERIOR COURT CIVIL DIVISION
Lamoille Unit Case No. 24-CV-01048
154 Main Street
Hyde Park VT 05655
802-888-3887
www.vermontjudiciary.org

In Re: Trust Estate of Jay Friedenson u/t/a 8/27/21

ENTRY REGARDING MOTION
Title: Motion to Dismiss; Appellant Memo for Lack of Prosecution; (Motion: 1; )
Filer: Noah A Greenstein; Jon R. Eggleston
Filed Date: June 14, 2024; June 20, 2024
The motions are DENIED.

This is a probate appeal concerning the interpretation of a specific trust provision. The

parties agree that no discovery or trial is necessary in this matter, and that the issue is reviewable and
resolvable on motion and briefing.

At the initial status conference in this matter held on May 6, 2024, Appellants agreed to
submit briefing on this issue in 30 days. Following the expiration of 30 days, Appellants had not

filed a brief, and Appellee moved to dismiss for lack of prosecution under V.R.C.P. 41(b). Shortly

thereafter, Appellants filed their promised brief competently and ably laying out the issue and

providing the Court with the necessary briefing to review and decision the sole issue on appeal.
Based on Appellant's filing, the short delay, and the fact that the initial deadline was self-imposed

and not jurisdictional, the Court DENIES Appellees' motion to dismiss under V.R.C.P. 41(b).!

Turning to the substance of the appeal, the issue is straightforward. Jay P. Friedenson
established a Trust in 2001, of which he and his wife, Ingrid Friedenson were co-trustees. Upon Mtr.

Friedenson's death in November 2021, Ms. Friedenson became the sole trustee and primary

beneficiary of the trust. Upon Mr. Friedenson's death the Trust, which had been revocable became

1
The Court would strongly recommend in the future that counsel contact opposing counsel to determine the
nature of the delay as the Court is unlikely, absent outstanding circumstances, to grant a dismissal for lack of
prosecution after a self-imposed/non-jurisdictional deadline and less than 30 days have elapsed between the
deadline and the motion to dismiss. This is because dismissal is an ultimate sanction, and it is not one that the
Court can enter absent specific, well-established facts showing either willful non-compliance or abandonment of
the case. See State v Howe Cleaners, inc., 2010 VT 70, 1 18 (noting that dismissal is an ultimate sanction and
requires specific findings or basis).

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24-CV-01048 In Re: Trust Estate ofJay Friedenson u/t/a 8/27/21
irrevocable. Upon Ms. Friedenson’s passing, Mr. Friedenson’s two adult daughters will become the
primary beneficiaries of the Trust.
Under 14A V.S.A. § 813, trustees have specific notification duties toward “qualified
beneficiaries” as that term is defined in 14A V.S.A. § 103(13)(A). The relevant duties under Section
813 to the present appeal are defined as follow:
(a) A trustee shall keep the qualified beneficiaries of the trust reasonably
informed about the administration of the trust and of the material facts necessary for
them to protect their interests. Unless unreasonable under the circumstances, a
trustee shall promptly respond to a beneficiary’s request for information related to
the administration of the trust. Notice does not need to be provided to the Attorney
General by the trustee of a charitable trust under this section except upon request by
the Attorney General or as provided in subsection (f) of this section.
(b) A trustee:
(1) upon request of a beneficiary, shall promptly furnish to the beneficiary a
copy of the trust instrument;
(2) within 60 days after accepting a trusteeship, shall notify the qualified
beneficiaries of the acceptance and of the trustee's name, address, and telephone
number;
(3) within 60 days after the date the trustee acquires knowledge of the
creation of an irrevocable trust, or the date the trustee acquires knowledge that a
formerly revocable trust has become irrevocable, whether by the death of the settlor
or otherwise, shall notify the qualified beneficiaries of the trust's existence, of the
identity of the settlor or settlors, of the right to request a copy of the trust
instrument, and of the right to a trustee's report as provided in subsection (c) of this
section; and
(4) shall notify the qualified beneficiaries in advance of any change in the method or
rate of the trustee's compensation.
14 V.S.A. § 813.
The Trust provisions under title 14A are enabling statutes that are intended to primarily
serve as default provisions, but which may be modified, waived, or altered by the specific terms and
provisions of the trust document. 14A V.S.A. § 105. While section 105 does indicate that certain
provisions of the Trust Code are mandatory and may not be altered, none of the provisions of
Section 813 fall into the ambit of these mandatory exceptions.
As part of the Friedenson Trust, the Settlor included the following provision under
subsection (f) of Article 2.2:
Duty to Inform and Report. Following my death and during my Spouse’s lifetime,
the Trustee shall only have a duty to inform and report to my Spouse and shall have
no duty to inform and report to any beneficiary other than my Spouse. In addition,
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24-CV-01048 In Re: Trust Estate of Jay Friedenson u/t/a 8/27/21
following my Spouse’s death, in informing qualified beneficiaries pursuant to 14A
V.S.A. § 813(b)(3), the Trustee shall only be required to provide a qualified
beneficiary with a copy or copies of the portion(s) of this Agreement that pertain to
such qualified beneficiary’s beneficial interest in the Trust estate.

The parties agree that the first sentence of this provision addresses and modifies the current
Trustee’s obligation to report to and to inform any beneficiaries about the administration and
specifics of the Friedenson Trust. Appellants frame the first sentence as modifying the Trustee’s
report and information obligations under 14A V.S.A. § 813(a). Appellee argues that the sentence
applies more broadly. The parties then focus their dispute on the second sentence. Appellants
argue that this second sentence is intended as an alternative scenario that would apply if Ms.
Friedenson had pre-deceased Mr. Friedenson, and that because she survived, the obligations of
Section 813(b)(3) remain in effect.
While Appellant’s reasoning concerning the second sentence is not unreasonable, it is largely
unnecessary because the language of the first sentence is broader than Appellants admit. The first
sentence of Section 2.2(f) of the Trust Agreement uses the term “duty to inform and report,” which
applies to all of Section 813 and not just Section 813(a). There is no indication in the plain language
of the first sentence that it is intended to be limited to only portions of Section 813, and the
language creates no ambiguity that would reasonable permit such an interpretation. The language is
broad enough to address all information and reporting duties arising under the statute, and there is
no compelling language to read Section 813(b)(3) out of the first sentence.
While this first sentence largely resolves the current dispute in which Appellants have sought
information about the Friedenson Trust in the wake of their father’s passing, the Court will also
address the second sentence.
In this respect, it is helpful to consider how the two sentences function with each other.
The first sentence controls in the present situation because Mr. Friedenson predeceased Ms.
Friedenson. That event triggered the terms in the first sentence that instruct the Trustee to withhold
trust information and reports from all other qualified beneficiaries other than Ms. Friedenson. The
second sentence, which posits itself as an addition—not an alternative—to the first sentence, applies
to three potential situations: (1) where Mr. Friedenson had survived Ms. Friedenson; (2) where Mr.
and Ms. Friedenson had passed away at the same time; or (3) where following the passing of Ms.
Friedenson, the successor trustee is deemed to have an on-going obligation under the provisions of

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24-CV-01048 In Re: Trust Estate of Jay Friedenson u/t/a 8/27/21
Section 813(b)(3) to provide copies of the Friedenson Trust, information about the Trust, and
corresponding reports to the beneficiaries.
Each of these provisions extends the intent of the first sentence to slightly different factual
scenarios that compliment and correspond to the intent of the first sentence, which is to limit the
amount of information the Appellants and other qualified beneficiaries can receive from the any
successor trustees. In this respect, the second sentence does not create an alternative right to
information upon Mr. Friedenson’s passing, but rather it provides additional provisions to ensure
that the flow of information to the trustees remains limited.
While this runs contrary to the provisions of Section 813, it was within Mr. Friedenson’s
authority to implement such provisions, and it is the role of the Court to simply interpret and apply
them to fulfill the settlor’s intent. Nothing in the two sentences contradict the other or require
disclosure at this time inconsistent with Trustee’s position.
ORDER
Based on the foregoing, the Probate Division’s decision is AFFIRMED and the present
appeal is DISMISSED.
Electronically signed on 7/18/2024 3:27 PM pursuant to V.R.E.F. 9(d)

__________________________________
Daniel Richardson
Superior Court Judge

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