Legal workarounds for testamentary trust perceived as unfair My mother recently passed away and her will includes a testamentary trust for a portion of the estate designated for her grandchildren. Unfortunately, the terms of this trust seem to unfairly benefit my children vs. my brother's, which is creating family drama -- so much so that extended family (cousins) designated as trustees want to refuse to get involved. My brother and I are aligned on a more equitable arrangement (with which the trustees concur) but my initial research indicates that testamentary trusts must be followed exactly. The trust is for the benefit of five grandchildren: Two from my brother, presently age 27 and 22, and my three children, ages 17, 13, and 11. However, rather than equal distribution, the trust specifies the following (excerpting some of the exact legal language): for the benefit of any one or more of the living benficiaries for their health, and education (including room and board) without the necessity of equalization among them at any time Education is more fully defined in another paragraph and largely applies to tuition, room, board, books, etc. at an accredited college, university, or trade school. The trustee has "absolute discretion" but is advised to "consider all funds or resources available to a beneficiary". When the youngest beneficiary is 21, the trust is to be divided into two trusts (no specific split percentage is mentioned) based on children of myself and my brother, from which income is paid at the trustee's discretion to the children until the youngest of each of these two trusts reaches age 25, at which point the trust(s) terminate with equal division. As written, the trust would seem to possibly unfairly benefit me/my children: My brother's children have both graduated college, and do not plan to pursue postgraduate education His two children's college was funded primarily through Pell Grants; they do not have student loans My three children do have college coming up (the first next year!) and my income precludes any significant financial assistance, but is not enough to avoid taking out loans Obviously there's no clear cut "need" and the "absolute discretion" allows the trustee to make that judgment (which our relatives don't want to have to make.) Everyone (my brother, myself, trustees) would love to just equally split the benefits to all five grandchildren; however, there does not seem to be a way to do that within the constraints established. Even if we "designated" 60% to be disbursed to my children and supported their college, we would have to wait 10 years until my youngest child reaches age 21 before we could "divide" the trust (100% to my brother's children, 0% to mine) to pay out to the other beneficiaries. One thought I've had to reduce family drama is to request the trustees disburse all the funds for my own children's education and simply gift my brother's children their "share". Are there any other legal ways of overriding the specific instructions of the will with a more equitable distribution that everyone involved (and alive) agrees with?
There is no requirement that a will, or a trust created by a will, be "fair". The will could have left $500,000 in trust for one set of siblings, and $5,000 to another set. It could specifically exclude one beneficiary from some of the benefits, or specify an unequal division. That is all the choice of the testator. As described in the question, the trust does seem likely to give greater benefits to one set of children than to their cousins. Unless there are grounds to upset the will, that is just how it is. However, the wide "absolute" discretion granted to the trustee might allow the trustee to modify this outcome, but the trustee is not allowed to simply rewrite the trust. How much the payments can be varied will depend on the exact terms of the trust. It does sound as if this trust was not worded as carefully as it might be, since it does not specify a ration when the trust is to be split. The designated relative can decline to serve as trustee, then any specified alternate would serve, or if there is none, or none who will serve, the court would appoint a trustee.
Maybe I'm reading Walsh wrong, but it seems to me to be saying that Stout might apply in some cases, but it doesn't in that specific case. I think you are indeed reading it wrong. In the Walsh case, the court says: We have not had occasion to decide the question up to this time, but now that it is presented, we not only reiterate the doubt which we expressed in the McAlpin case (supra), but we think that the question of the defendant's negligence was erroneously submitted to the jury in the Stout case, and that we ought not to follow it as a precedent. It's clearly repudiating Stout here, and not just as it applies to that case. It literally says they think it should not be followed as precedent.
These situations do come up (and incidentally, this is nothing new, it has been a difficult and recurring legal issue since at least the 18th century), and they really suck to be in, and often there aren't easy answers. There are a lot of legal doctrines out there that are designed to avoid a hard clash of conflicting court orders and to prevent someone from suffering contempt of court sanctions when they are in this bind. Generally, litigants caught in this bind look for these outs. For example, when particular property or records are at issue, often the person in question will "interplead" the property placing it in the jurisdiction of a court to resolve and out of their hands. There is a doctrine called in custodia legis which provides that once something is in the custody of a court that another court may not exercise jurisdiction over it. The entire sub-field of civil procedure pertaining to jurisdiction and venue is designed to avoid these conflicts. U.S. law has a whole sub-field a statutes and legal doctrines like the Rooker-Feldman doctrine designed to prevent these conflicts from coming up when they arise between federal and state courts. One of the most important legal doctrines is that a person cannot be punished for contempt of court for failing to do something that the person being held in contempt of court does not have the ability to do. One argument, which doesn't always work, is that once you are subject to a legally binding court order that has been served upon you that you may not legally defy that court order in order to follow the order of a court which cannot override the decisions of the court issuing the first order. Usually, contempt citations are directed at individual employees or agents rather than at entities. For example, in a dispute over Indian Trust Funds against the United States government, contempt citations were brought against the Secretary of Interior personally and could have sent that individual to jail for not complying. One way the an individual can get out of the order relating to an employment or professional duty is to resign from office and thus deprive oneself of the ability to perform the order. But, the short answer is that there is no one simple legal rule for resolving these situations, and the litigants stuck in these situations look for every available legal argument to resolve it until it is resolved.
First of all, there is more than one legal sense in which the term a person's "estate" is used. You are using it in the archaic sense of all of the property owned by a living natural person, but this is not a contemporary use of the term. Normally, the term estate is referred to property that belongs to a dead person that is subject to probate, the property that belongs to a trust, or the property that was transferred to a bankruptcy trustee by operation of law upon the filing of a bankruptcy petition. None of those modern senses of the word apply to this question. You are just asking about the extent to which a particular kind of debt (criminal restitution) can be collected from the person who owes that debt. Your tag also implies that you are particularly interested in New York law. The probate laws of the State of New York are codified in a portion of its statutes known as the EPTL (Estate, Powers and Trusts law), but as noted above, that is not relevant in this case. The criminal law provisions related to restitution, and the general rules applying to debt collection (spread across several of New York's statutes such as the Real Property Actions and Proceedings Law (RPAPL), the New York Penal Law, and the Civil Procedure Laws and Rules (CPLR)) are the laws applicable to your subquestions. 1) Mr. X has spent all the money and is broke. He can't possibly pay the $1 million. When he gets out of jail and (presumably) starts working again, how much of his income can he keep, and how is "excess income" assessed toward the $1 million debt? This involves the liability of Mr. X and not "his estate". If he goes bankrupt this debt would not be discharged if the proper procedural steps are taken. In general, restitution judgments can be enforced by the procedures set forth for collection of a civil judgment and also through the terms of any relevant probation or parole conditions (which would typically allow for incarceration for willful failure to comply with the conditions to the extent that Mr. X is able to do so with minimal due process protections). Civil judgments can be enforced through garnishment of amounts owed to you (such as bank account balances and wages) subject to certain exemptions from creditors (only some of which apply to restitution judgments) and through writs of execution against property owned by you (the process is quite different for tangible personal property v. real property). The general rule is that wages are exempt from creditors up to an amount equal to 30 hours times minimum wage or 75% of the total whichever is greater. There is usually no exemption for income as an independent contractor, businessman or for bank accounts (unless fully traceable to certain exempt assets). Certain kinds of property (there is a long list) are exempt from creditors as well (although certain kinds of assets are exempt as against some but not other creditors). 2) Mr. X has a house worth $1 million with a mortgage of $1 million (a civil liability). I have been told that a criminal judgment takes precedence over a civil liability. Is it true, as my friend asserts, that the $1 million crime victims will get their money before the mortgagee after the house is sold? This is also a claim against Mr. X and not his estate. Your friend was incorrect. A mortgage is a property interest that takes priority over an unsecured debt like a restitution judgment even if that debt may have special priorities in some circumstances. (This assumes that the mortgage is recorded before a "judgment lien" is recorded in the real property records of the county where the house is purchased or is recorded contemporaneously with the purchase of the house. If a judgment lien is recorded and then a mortgage is entered into and recorded later, the judgment lien would have priority.) 3) Mr. X has a house worth $2 million with a $1 million mortgage, and $1 million of equity. Is there anything (e.g. taxes) that will stand in the way of the house being sold, $1 million being paid to reimburse the crime victims, and $1 million to the mortgagee? Put another way, what is the order of reimbursment between victim, mortgagee, and other claimants such as taxes? To grossly oversimplify a complicated process with a variety of exceptions: The highest priority would be any outstanding liens for unpaid property taxes, Then sometimes all or part of a homeowner's association lien, then the first mortgage, then any other other liens junior to the mortgage that are not subject to a homestead exemption of CPLR Section 5206, because the homestead exemption was waived or to which it does not apply by law (e.g. mechanic's liens for work done on the property but not paid for and second mortgages), then the homestead exemption amount (paid to Mr. X) which in New York ranges from $75,000 to $150,000 depending upon the county in question which remains exempt for one year if kept segregated or reinvested in a new home (twice as much if the debtor is married), then judgment liens paid in order of recording which were recorded prior to the restitution judgment lien. The property interest in the house associated with judgment liens or other mortgages recorded after the restitution judgment lien foreclosed upon that burden the property (i.e. junior liens) are erased in a foreclosure, subject to a right of redemption set forth in in RPAPL Section 1352: Sec. 1352. JUDGMENT FORECLOSING RIGHT OF REDEMPTION. Where real property has been sold pursuant to a judgment in an action to foreclose a mortgage, and an action is thereafter brought to foreclose or extinguish a right of redemption in such real property, the judgment, instead of directing a sale of the property, shall fix the right of any person having a right of redemption therein or the right to foreclose a subordinate mortgage or other lien and shall provide that a failure to redeem or commence an action for the foreclosure of such mortgage or other lien within such time shall preclude such person having a right of redemption or the holder of such mortgage or other lien from redeeming such property or foreclosing such mortgage or other lien, and thereafter such person having a right of redemption or the holder of such mortgage or other lien shall be excluded from claiming any title or interest in such property and all title or interests of such person having a right of redemption in, or the right to foreclose a subordinate mortgage or other lien against such property shall thereby be extinguished and terminated. The claims would be paid out of the proceeds of a sheriff's sale net of the costs of sale. If there is money left over after all of these claimants are paid, it would go to the property owner, Mr. X. But, in your scenario with a $1 million mortgage and a $1 million restitution lien and a $2 million value, there would be no excess. If a properly bid sale price is not enough to pay the entire restitution judgment, the shortfall called a "deficiency" remains as a "deficiency judgment" that is still owed by Mr. X. Strictly speaking, the higher priority liens don't get paid from the sales proceeds (except the owner's homestead exemption amount), instead the foreclosure sale buyer takes the property subject to those liens and those senior lienholders have a right to foreclosure in turn if they are paid off. Also, procedurally, the value of the property net of higher priority liens and encumbrances is determined by the highest bid made at a sheriff's sale (with the foreclosing debtor allowed to use the amount of the lien as payment), not on the basis of an appraisal or prolonged sale via a realtor. Often there will be no bidder other than the creditor bringing the foreclosure. APPENDIX: Criminal restitution in New York State is primarily governed by N.Y. Penal Law Section 60.27 which reads as follows: Restitution and reparation In addition to any of the dispositions authorized by this article, the court shall consider restitution or reparation to the victim of the crime and may require restitution or reparation as part of the sentence imposed upon a person convicted of an offense, and after providing the district attorney with an opportunity to be heard in accordance with the provisions of this subdivision, require the defendant to make restitution of the fruits of his or her offense or reparation for the actual out-of-pocket loss caused thereby and, in the case of a violation of section 190.78, 190.79, 190.80, 190.82 or 190.83 of this chapter, any costs or losses incurred due to any adverse action taken against the victim. The district attorney shall where appropriate, advise the court at or before the time of sentencing that the victim seeks restitution or reparation, the extent of injury or economic loss or damage of the victim, and the amount of restitution or reparation sought by the victim in accordance with his or her responsibilities under subdivision two of section 390.50 of the criminal procedure law and article twenty-three of the executive law. The court shall hear and consider the information presented by the district attorney in this regard. In that event, or when the victim impact statement reports that the victim seeks restitution or reparation, the court shall require, unless the interests of justice dictate otherwise, in addition to any of the dispositions authorized by this article that the defendant make restitution of the fruits of the offense and reparation for the actual out-of-pocket loss and, in the case of a violation of section 190.78, 190.79, 190.80, 190.82 or 190.83 of this chapter, any costs or losses incurred due to any adverse action, caused thereby to the victim. In the event that restitution or reparation are not ordered, the court shall clearly state its reasons on the record. Adverse action as used in this subdivision shall mean and include actual loss incurred by the victim, including an amount equal to the value of the time reasonably spent by the victim attempting to remediate the harm incurred by the victim from the offense, and the consequential financial losses from such action. Whenever the court requires restitution or reparation to be made, the court must make a finding as to the dollar amount of the fruits of the offense and the actual out-of-pocket loss to the victim caused by the offense. In making this finding, the court must consider any victim impact statement provided to the court. If the record does not contain sufficient evidence to support such finding or upon request by the defendant, the court must conduct a hearing upon the issue in accordance with the procedure set forth in section 400.30 of the criminal procedure law. The provisions of sections 420.10, 420.20 and 420.30 of the criminal procedure law shall apply in the collection and remission of restitution and reparation. For purposes of the imposition, determination and collection of restitution or reparation, the following definitions shall apply: (a) the term "offense" shall include the offense for which a defendant was convicted, as well as any other offense that is part of the same criminal transaction or that is contained in any other accusatory instrument disposed of by any plea of guilty by the defendant to an offense. (b) the term "victim" shall include the victim of the offense, the representative of a crime victim as defined in subdivision six of section six hundred twenty-one of the executive law, an individual whose identity was assumed or whose personal identifying information was used in violation of section 190.78, 190.79 or 190.80 of this chapter, or any person who has suffered a financial loss as a direct result of the acts of a defendant in violation of section 190.78, 190.79, 190.80, 190.82 or 190.83 of this chapter, a good samaritan as defined in section six hundred twenty-one of the executive law and the office of victim services or other governmental agency that has received an application for or has provided financial assistance or compensation to the victim. A victim shall also mean any owner or lawful producer of a master recording, or a trade association that represents such owner or lawful producer, that has suffered injury as a result of an offense as defined in article two hundred seventy-five of this chapter. (a) Except upon consent of the defendant or as provided in paragraph (b) of this subdivision, or as a condition of probation or conditional discharge as provided in paragraph (g) of subdivision two of section 65.10 of this chapter, the amount of restitution or reparation required by the court shall not exceed fifteen thousand dollars in the case of a conviction for a felony, or ten thousand dollars in the case of a conviction for any offense other than a felony. Notwithstanding the provisions of this subdivision, if an officer of a school district is convicted of violating any section of article one hundred fifty-five of this chapter where the victim of such crime is such officer's school district, the court may require an amount of restitution up to the full amount of the fruits of the offense or reparation up to the full amount of the actual out-of-pocket loss suffered by the victim, provided further that in such case the provisions of paragraph (b) of this subdivision shall not apply. (b) The court in its discretion may impose restitution or reparation in excess of the amounts specified in paragraph (a) of this subdivision, provided however that the amount in excess must be limited to the return of the victim's property, including money, or the equivalent value thereof; and reimbursement for medical expenses actually incurred by the victim prior to sentencing as a result of the offense committed by the defendant. Any payment made as restitution or reparation pursuant to this section shall not limit, preclude or impair any liability for damages in any civil action or proceeding for an amount in excess of such payment. In the event that the court requires restitution or reparation to be made to a person and that person dies prior to the completion of said restitution or reparation, the remaining payments shall be made to the estate of the deceased. The court shall in all cases where restitution or reparation is imposed direct as part of the disposition that the defendant pay a designated surcharge of five percent of the entire amount of a restitution or reparation payment to the official or organization designated pursuant to subdivision eight of section 420.10 of the criminal procedure law. The designated surcharge shall not exceed five percent of the amount actually collected. Upon the filing of an affidavit of the official or organization designated pursuant to subdivision eight of section 420.10 of the criminal procedure law demonstrating that the actual cost of the collection and administration of restitution or reparation in a particular case exceeds five percent of the entire amount of the payment or the amount actually collected, as the case may be, the court shall direct that the defendant pay an additional surcharge of not more than five percent of the entire amount of a restitution or reparation payment to such official or organization, or the actual cost of collection or administration, whichever is less unless, upon application of the defendant, the court determines that imposition of such additional surcharge would cause undue hardship to the defendant, or any other person who is financially supported by the defendant, or would otherwise not be in the interest of justice. Such additional surcharge, when added to the initial five percent surcharge, shall not exceed ten percent of the amount actually collected. If the offense of which a person is convicted is a class A, class B, class C, or class D felony involving the sale of a controlled substance, as defined in article two hundred twenty of this chapter, and no other victim who is a person is seeking restitution in the case, the term "victim" as used in this section, in addition to its ordinary meaning, shall mean any law enforcement agency of the state of New York or of any subdivision thereof which has expended funds in the purchase of any controlled substance from such person or his agent as part of the investigation leading to such conviction. Any restitution which may be required to be made to a law enforcement agency pursuant to this section shall be limited to the amount of funds expended in the actual purchase of such controlled substance by such law enforcement agency, less the amount of any funds which have been or will be recovered from any other source, and shall not include a designated surcharge pursuant to subdivision eight of this section. Any law enforcement agency seeking restitution pursuant to this section shall file with the court and the district attorney an affidavit stating that funds expended in the actual purchase of a controlled substance for which restitution is being sought have not been and will not be recovered from any other source or in any other civil or criminal proceeding. Any law enforcement agency receiving restitution pursuant to this section shall promptly transmit to the commissioner of the division of criminal justice services a report stating the dollar amount of the restitution received. If the offense of which a person is convicted is defined in section 150.10, 150.15 or 150.20 of this chapter, and no other victim who is a person is seeking restitution in the case, the term "victim" as used in this section, in addition to its ordinary meaning, shall mean any municipality or volunteer fire company which has expended funds or will expend funds for the purpose of restoration, rehabilitation or clean-up of the site of the arson. Any restitution which may be required to be made to a municipality or volunteer fire company pursuant to this section shall be limited to the amount of funds reasonably expended or to be expended for the purpose of restoration, rehabilitation or cleanup of the site of the arson, less the amount of any funds which have been or will be recovered from any other source, and shall not include a designated surcharge pursuant to subdivision eight of this section. Any municipality or volunteer fire company seeking restitution pursuant to this section shall file with the court, district attorney and defense counsel an affidavit stating that the funds reasonably expended or to be expended for which restitution is being sought have not been and will not be recovered from any other source or in any other civil or criminal proceeding. For the purposes of this subdivision, "volunteer fire company" means a fire company as defined in paragraph a of subdivision two of section one hundred of the general municipal law. Notwithstanding any other provision of this section to the contrary, when a person is convicted of harming an animal trained to aid a person with a disability in the second degree as defined in section 195.11 of this chapter, or harming an animal trained to aid a person with a disability in the first degree as defined in section 195.12 of this chapter, the court, in addition to any other sentence, shall order the payment of restitution to the person with a disability who was aided by such animal. If the offense of which a person is convicted is defined in section 155.25, 155.30, 155.35, 155.40 or 155.42 of this chapter, and the property taken is timber, the court may upon conviction, in addition to any other sentence, direct the defendant to pay the rightful owner of such timber an amount equal to treble the stumpage value of the timber stolen as defined in section 71-0703 of the environmental conservation law and for any permanent and substantial damage caused to the land or the improvements thereon as a result of such violation. Such reparations shall be of such kind, nature and extent as will reasonably restore the lands affected by the violation to their condition immediately before the violation and may be made by physical restoration of such lands and/or by the assessment of monetary payment to make such restoration. If the offense of which a person is convicted is defined in section 240.50, subdivision one or two of section 240.55, section 240.60, section 240.61, section 240.62 or section 240.63 of this chapter, and no other victim who is a person is seeking restitution in the case, the term "victim" as used in this subdivision, in addition to the ordinary meaning, shall mean any school, municipality, fire district, fire company, fire corporation, ambulance association, ambulance corporation, or other legal or public entity engaged in providing emergency services which has expended funds for the purpose of responding to a false report of an incident or false bomb as defined in section 240.50, subdivision one or two of section 240.55, section 240.60, section 240.61, section 240.62, or section 240.63 of this chapter. Any restitution which may be required to be made to a victim pursuant to this subdivision shall be limited to the amount of funds reasonably expended for the purpose of responding to such false report of incident or false bomb, less the amount of any funds which have been or will be recovered from any other source and shall not include a designated surcharge pursuant to subdivision eight of this section. Any victim seeking restitution pursuant to this subdivision shall file with the court, district attorney and defense counsel an affidavit stating that the funds reasonably expended for which restitution is being sought have not been and will not be recovered from any other source or in any other civil or criminal proceeding, except as provided for by section 3-112 of the general obligations law. Where a transfer of probation has occurred pursuant to section 410.80 of the criminal procedure law and the probationer is subject to a restitution condition, the department of probation in the county in which the order of restitution was imposed shall notify the appropriate district attorney. Upon notification by the department of probation, such district attorney shall file a certified copy of the judgment with the clerk of the county in the receiving jurisdiction for purposes of establishing a first lien and to permit institution of civil proceedings pursuant to the provisions of subdivision six of section 420.10 of the criminal procedure law.
The applicable state law is here. Section 461-A:2 guides the interpretation of the chapter: I. Because children do best when both parents have a stable and meaningful involvement in their lives, it is the policy of this state, unless it is clearly shown that in a particular case it is detrimental to a child, to: (a) Support frequent and continuing contact between each child and both parents. (b) Encourage parents to share in the rights and responsibilities of raising their children after the parents have separated or divorced. (c) Encourage parents to develop their own parenting plan with the assistance of legal and mediation professionals, unless there is evidence of domestic violence, child abuse, or neglect. (d) Grant parents and courts the widest discretion in developing a parenting plan. (e) Consider both the best interests of the child in light of the factors listed in RSA 461-A:6 and the safety of the parties in developing a parenting plan. II. This chapter shall be construed so as to promote the policy stated in this section. The law gets no more specific than to refer to the fact of being a parent. The law does not favor males over females, or vice versa, and the law does not discriminate between a parent who is a minor versus a parent who is a legal adult. The rights of parents are equal, ab initio. However, the recognition of the rights of a father does depend on the legal establishment of paternity whereas the law takes maternity to be self-evident. This may have been dealt with at birth, or may require a legal process if paternity is contested. If that part is sorted out, then disagreements about custody etc. which can't be worked out through agreement possibly with a mediator can be resolved in court. The court will determine what constitutes the "best interests of the child". That is all there is to it, legally. That does not mean that a judge making a decision is absolutely immune from thinking that the minor father is less able take care of the child. Starting next year, a minor can seek emancipation, but until then (and until there is emancipation), the minor's parent have veto power over the father's wishes.
The law was changed several times, and different versions apply to different age groups because certain rules were not changed retroactively. The page you link describes the situation for children born after the year 2000. My advice: citizenship is such a serious matter that you should consult a specialized lawyer, not a random crowd on the web.
Yes that seems to be the case. The section after the one you quoted, 551:11 Share of Unnamed Child says: If the property not devised nor bequeathed shall be insufficient to satisfy the just share of such child, after allowing advancements received by him, the same shall be made up in just proportion from the property devised or bequeathed to others. The page &quot;Can I Disinherit My Child?&quot; from a law firm blog, says: New Hampshire has a strong policy of protecting “pretermitted heirs,” which are heirs that were not mentioned in a Will. N.H. R.S.A 551:10 states that [e]very child born after the decease of the testator, and every child or issue of a child of the deceased not named or referred to in his will, and who is not a devisee or legatee, shall be entitled to the same portion of the estate, real and personal, as he would be if the deceased were intestate. Simply put, you do not name or refer to your child in the Will, then he can claim an inheritance as if you died without a Will. Historically and currently, the rationale is that if you did not mention him anywhere in your Will, you most likely forgot about him, because it is human nature to forget things. However that same blog page also says: There are various ways to disinherit a child. The most often used method is to specifically name or refer to the child, or a class, such as “my children” or “my son, Alex, and his issue,” that you intend to disinherit, and you must then state that you intend to disinherit that child. Another way to disinherit a child is to state that you give that particular child one (1) dollar, or a small sum of money. So it would seem that if one chose to include language such as: I leave to any other children I might have, and to their issue, if any, the sum of $10, jointly. then such possible surprises are covered. This would be after mentioning specifically any children one wanted to leave larger amounts to.
could a case be made for breach of fiduciary duty? Yes, I think, although not every person or stakeholder would have standing to sue the board of trustees of the private university. The prima facie elements of breach of fiduciary duty are "(i) the existence of a fiduciary duty; (ii) a knowing breach of that duty; and (iii) damages resulting therefrom", Johnson v. Nextel Communications, 660 F.3d 131, 138 (2011) (I am not aware of any material differences in other jurisdictions). Absent any explicit disclaimers of fiduciary duty, (1) the element of existence of that duty is applicable because the trustees' relation with the university is not one of arms length; (2) in their deliberate --rather than negligent-- decision to do business with their friends, the trustees are knowingly and intentionally disregarding the advice from economists of the university, despite the evidenced financial detriment of that deliberate decision; and (3) the element of damages would be proved from the expenses as billed by the firm, coupled with any losses the friends' subpar performance may be causing to the university.