What is the limitations period for suing a trustee or their family?
Full Question:
Answer:
Limitation of actions refers to a law which sets the maximum period which one can wait before filing a lawsuit, depending on the type of case or claim. The periods vary by state and by type of claim. Federal statutes set the limitations for federal lawsuits. If the lawsuit or claim is not filed before the statutory deadline, the right to sue or make a claim is lost forever.
In some instances, a statute of limitations can be extended ("tolled") based on delay in discovery of the injury or fraud. A minor's right to bring an action for injuries due to negligence is tolled until the minor turns 18 (except for a claim against a governmental agency). There are also statutes of limitations related to criminal charges, but homicide generally has no time limitation on prosecution. The contractual methods for dealing with statutes of limitations restrictions include a new promise to pay or an acknowledgment of a debt from which such promise may be inferred, or contractual limitation periods and waivers of the defense.
In Oklahoma, unless previously barred by adjudication, consent, or other limitation, a claim against a trustee for breach of trust is barred as to a beneficiary who has received from
the trustee a report or other statement adequately disclosing the existence of the claim unless:
a. a judicial proceeding to assert the claim is commenced
within two (2) years after receipt of the report or
statement or, if no report or statement is received, within
two (2) years after the termination of the trust
relationship between the beneficiary and that particular
trustee, and
b. the report or other statement informs the beneficiary of
this time limitation.
Please see the following OK statutes to determine applicability:
§ 60-175.57. Breach of trust — Remedies — Liability.
A. A violation by a trustee of a duty the trustee owes a
beneficiary is a breach of trust.
B. To remedy a breach of trust that has occurred or may
occur, the court may:
1. Compel the trustee to perform the trustee's duties;
2. Enjoin the trustee from committing a breach of trust;
3. Compel the trustee to redress a breach of trust by
payment of money or otherwise;
4. Order a trustee to account;
5. Appoint a receiver or temporary trustee to take
possession of the trust property and administer the trust;
6. Suspend or remove the trustee;
7. Reduce or deny compensation to the trustee;
8. Subject to subsection I of this section, void an act of
the trustee, impose an equitable lien or a constructive
trust on trust property, or trace trust property wrongfully
disposed of and recover the property or its proceeds; or
9. Grant any other appropriate remedy.
C. A beneficiary may charge a trustee who commits a breach
of trust with the amount required to restore the value of
the trust property and trust distributions to what they
would have been had the breach not occurred, or, if
greater, the profit that the trustee made by reason of the
breach.
D. In a judicial proceeding involving a trust, the court
may in its discretion, as justice and equity may require,
award costs and expenses, including reasonable attorney's
fees, to any party, to be paid by another party or from the
trust which is the subject of the controversy.
E. 1. Unless previously barred by adjudication, consent, or
other limitation, a claim against a trustee for breach of
trust is barred as to a beneficiary who has received from
the trustee a report or other statement adequately
disclosing the existence of the claim unless:
a. a judicial proceeding to assert the claim is commenced
within two (2) years after receipt of the report or
statement or, if no report or statement is received, within
two (2) years after the termination of the trust
relationship between the beneficiary and that particular
trustee, and
b. the report or other statement informs the beneficiary of
this time limitation.
A report or statement adequately discloses the existence of
a claim if it provides sufficient information so that the
beneficiary knows of the claim or reasonably should have
inquired into its existence. A claim this barred does not
include an action to recover for fraud or misrepresentation
related to the report or other statement.
2. For the purpose of paragraph 1 of this subsection, a
beneficiary is deemed to have received a report or other
statement:
a. in the case of an adult, if it is received by the adult
personally, or if the adult lacks capacity, if it is
received by the adult's conservator, guardian, or agent
with authority, or
b. in the case of a minor, if it is received by the minor's
guardian or conservator or, if the minor does not have a
guardian or conservator, if it is received by a parent of
the minor who does not have a conflict of interest.
3. Except as otherwise provided by the terms of a trust,
while the trust is revocable and the settlor has capacity
to revoke, the rights of the beneficiaries are held by, and
the duties of the trustee are owed exclusively to the
settlor; the rights to be held by and owed to the
beneficiaries arise only upon the settlor's death or
incapacity. The trustee may follow a written direction of
the settlor, even if contrary to the terms of the trust.
The holder of a presently exercisable power of withdrawal
or a testamentary general power of appointment has the
rights of a settlor of a revocable trust under this
section to the extent of the property subject to the power.
F. 1. A term of the trust relieving a trustee of liability
for breach of trust is unenforceable to the extent that it:
a. relieves a trustee of liability for breach of trust
committed in bad faith or with reckless indifference to the
purposes of the trust or the interest of the beneficiaries,
or
b. was inserted as the result of an abuse by the trustee of
a fiduciary or confidential relationship to the settlor.
2. An exculpatory term drafted by or on behalf of the
trustee is presumed to have been inserted as a result of an
abuse of a fiduciary or confidential relationship unless
the trustee proves that the exculpatory term is fair under
the circumstances and that its existence and contents were
adequately communicated to the settlor.
G. A beneficiary may not hold a trustee liable for a breach
of trust if the beneficiary, while having capacity,
consented to the conduct constituting the breach, released
the trustee from liability for the breach, or ratified the
transaction constituting the breach, unless:
1. The beneficiary at the time of the consent, release, or
ratification did not know of the beneficiary's rights and
of the material facts that the trustee knew, or with the
exercise of reasonable inquiry, the beneficiary should have
known, and that the trustee did not reasonably believe that
the beneficiary knew; or
2. The consent, release, or ratification of the beneficiary
was induced by improper conduct of the trustee.
H. 1. Except as otherwise agreed, a trustee is not
personally liable on a contract properly entered into in
the trustee's fiduciary capacity in the course of
administration of the trust if the trustee in the contract
discloses the fiduciary capacity.
2. A trustee is personally liable for obligations arising
from ownership or control of trust property, or for torts
committed in the course of administering a trust, only if
the trustee is personally at fault, whether negligently or
intentionally.
3. A trustee who does not join in exercising a power held
by three or more trustees is not liable to third persons
for the consequences of the exercise of the power. A
dissenting trustee who joins in an action at the direction
of the majority cotrustees is not liable to third persons
for the action if the dissenting trustee expressed the
dissent in writing to any other cotrustee at or before the
time the action was taken.
4. A claim based on a contract entered into by a trustee in
the trustee's fiduciary capacity, on an obligation arising
from ownership or control of trust property, or on a tort
committed in the course of administering a trust, may be
asserted against the trust in a judicial proceeding against
the trustee in the trustee's fiduciary capacity, whether or
not the trustee is personally liable on the claim.
I. 1. A person who in good faith assists a trustee or who
in good faith and for value deals with a trustee without
knowledge that the trustee is exceeding or improperly
exercising the trustee's powers is protected from liability
as if the trustee properly exercised the power.
2. Dealing in good faith with another person with knowledge
that the other person is a trustee does not place a third
person on notice to inquire into the extent of the
trustee's powers or the propriety of their exercise.
3. A person who in good faith deals with another person
with knowledge that the other person is a trustee is not
solely on that account placed on notice to inquire into the
extent of the trustee's powers or the propriety of their
exercise or to see to the proper application of assets of
the trust paid or delivered to a trustee.
4. A person who in good faith assists a former trustee or
who for value and in good faith deals with a former trustee
without knowledge that the person is no longer a trustee is
protected from liability as if the former trustee were
still a trustee.
5. The protection provided by this section to persons
assisting or dealing with a trustee is secondary to that
provided under comparable provisions of other laws relating
to commercial transactions or to the transfer of securities
by fiduciaries.
§ 60-175.6b. Time limit for challenges to validity of prior
conveyances.
Any conveyance made and filed of record prior to the effective date of
this act placing real property or any interest therein in a trust
naming the trust itself as the grantee shall be valid for all purposes
unless any person claiming adversely to such trust or to its successors
shall file an affidavit setting forth the basis of such in the office of
the county clerk of the county or counties wherein said property is
located within one (1) year from the effective date of this act.
§ 60-175.18. Action on trustee contract — Personal liability of
trustee — Trustee as general or limited partner.
Whenever a trustee shall make a contract which is within his powers as
trustee, or a predecessor trustee shall have made such a contract, and a
cause of action arises thereon:
1. The party in whose favor the cause of action has accrued may sue the
trustee in his representative capacity, and any judgment rendered in such
action in favor of the plaintiff shall be collectible by execution out of
the trust property. In such an action the plaintiff need not prove that
the trustee could have secured reimbursement from the trust fund if he
had paid the plaintiff's claim.
2. No judgment shall be rendered in favor of the plaintiff in such
action unless he proves that within thirty (30) days after the beginning
of such action, or within such other time as the court may fix, and more
than thirty (30) days prior to obtaining the judgment, he notified each
of the beneficiaries known to the trustee who then had a present or
contingent interest, or in the case of a charitable trust the Attorney
General and any corporation which is a beneficiary or agency in the
performance of such charitable trust, of the existence and nature of the
action. Such notice shall be given by mailing copies thereof in postpaid
envelopes addressed to the parties to be notified at their last-known
addresses. The trustee shall furnish the plaintiff a list of the parties
to be notified, and their addresses, within ten (10) days after written
demand therefor, and notification of the persons on such list shall
constitute compliance with the duty placed on the plaintiff by this
section. Any beneficiary, or in the case of charitable trusts, the
Attorney General and any corporation which is a beneficiary or agency in
the performance of such charitable trust, may intervene in such action
and contest the right of the plaintiff to recover. If any beneficiary is
a minor or has been adjudged incompetent, the court shall appoint a
guardian ad litem, whose duty it shall be to defend such action.
3. The plaintiff may also hold the trustee who made the contract
personally liable on such contract, if the contract does not exclude such
personal liability. The addition of the word "trustee" or the words "as
trustee" after the signature of a trustee to a contract shall be deemed
prima facie evidence of an intent to exclude the trustee from personal
liability.
4. If a decedent was a partner in a general partnership and the
articles of partnership so provide, on the death of a partner, his or her
trustee shall be entitled to the place of the deceased partner in the
partnership. Likewise, any other trustee contracting to enter into a
general partnership in its capacity as trustee shall have its liability
limited to the trust assets contributed to the partnership and the other
assets of that trust under the control and management of the contract. A
trustee so entering the partnership shall be liable to third persons only
to the extent of the decedent's capital in the partnership and the funds
of the trust under the control and management of the trustee. This
paragraph does not exonerate a trustee from liability for negligence.
5. Unless otherwise authorized, directed or restricted by order of
court or by the instrument creating the trust, a trustee may contract to
enter into a limited partnership pursuant to the Limited Partnership
Act and may contribute to the partnership the assets designated by
the instrument creating the trust. The trustee shall be liable only to
the extent of the assets contributed by the trustee pursuant to the
instrument creating the trust, notwithstanding the occurrence of any act
or event which would otherwise have the effect of changing the limited
partnership into a general partnership. This paragraph does not exonerate
a trustee from liability for negligence.
The answer will depend in part on the basis for the claim. I suggest you consult a local attorney who can review all the facts and documents involved. The Oklahoma law governing limitations periods for civil actions other than those for the recovery of real estate states the following:
12 Okl. St. § 95
§ 95. Limitation of other actions
A. Civil actions other than for the recovery of real property can only be brought within the following periods, after the cause of action shall have accrued, and not afterwards:
1. Within five (5) years: An action upon any contract, agreement, or promise in writing;
2. Within three (3) years: An action upon a contract express or implied not in writing; an action upon a liability created by statute other than a forfeiture or penalty; and an action on a foreign judgment;
3. Within two (2) years: An action for trespass upon real property; an action for taking, detaining, or injuring personal property, including actions for the specific recovery of personal property; an action for injury to the rights of another, not arising on contract, and not hereinafter enumerated; an action for relief on the ground of fraud--the cause of action in such case shall not be deemed to have accrued until the discovery of the fraud;
4. Within one (1) year: An action for libel, slander, assault, battery, malicious prosecution, or false imprisonment; an action upon a statute for penalty or forfeiture, except where the statute imposing it prescribes a different limitation;
5. An action upon the official bond or undertaking of an executor, administrator, guardian, sheriff, or any other officer, or upon the bond or undertaking given in attachment, injunction, arrest, or in any case whatever required by the statute, can only be brought within five (5) years after the cause of action shall have accrued;
6. An action based on intentional conduct brought by any person for recovery of damages for injury suffered as a result of childhood sexual abuse incidents or exploitation as defined by Section 7102 of Title 10 of the Oklahoma Statutes or incest can only be brought within the latter of the following periods:
a. within two (2) years of the act alleged to have caused the
injury or condition, or
b. within two (2) years of the time the victim discovered or
reasonably should have discovered that the injury or condition was
caused by the act or that the act caused the injury for which the
claim is brought.
Provided, however, that the time limit for commencement of an action pursuant to this paragraph is tolled for a child until the child reaches the age of eighteen (18) years or until five (5) years after the perpetrator is released from the custody of a state, federal or local correctional facility or jail, whichever is later. No action may be brought against the alleged perpetrator or the estate of the alleged perpetrator after the death of such alleged perpetrator, unless the perpetrator was convicted of a crime of sexual abuse involving the claimant. An action pursuant to this paragraph must be based upon objective verifiable evidence in order for the victim to recover damages for injuries suffered by reason of such sexual abuse, exploitation, or incest. The evidence should include both proof that the victim had psychologically repressed the memory of the facts upon which the claim was predicated and that there was corroborating evidence that the sexual abuse, exploitation, or incest actually occurred. The victim need not establish which act in a series of continuing sexual abuse incidents, exploitation incidents, or incest caused the injury complained of, but may compute the date of discovery from the date of discovery of the last act by the same perpetrator which is part of a common scheme or plan of sexual abuse, exploitation, or incest. Provided further, any action based on intentional conduct specified in paragraph 7 of this section must be commenced within twenty (20) years of the victim reaching the age of eighteen (18);
7. An action based on intentional conduct brought by any person for recovery of damages for injury suffered as a result of criminal actions, as defined by the Oklahoma Statutes, may be brought against any person incarcerated or under the supervision of a state, federal or local correctional facility on or after November 1, 2003:
a. at any time during the incarceration of the offender for the
offense on which the action is based, or
b. within five (5) years after the perpetrator is released from the
custody of a state, federal or local correctional facility, if the
defendant was serving time for the offense on which the action is
based;
8. An action to establish paternity and to enforce support obligations can be brought any time before the child reaches the age of eighteen (18);
9. An action to establish paternity can be brought by a child in accordance with Section 7700-606 of Title 10 of the Oklahoma Statutes;
10. Court-ordered child support is owed until it is paid in full and it is not subject to a statute of limitations;
11. All actions filed by an inmate or by a person based upon facts that occurred while the person was an inmate in the custody of one of the following:
a. the State of Oklahoma,
b. a contractor of the State of Oklahoma, or
c. a political subdivision of the State of Oklahoma,
to include, but not be limited to, the revocation of earned credits and claims for injury to the rights of another, shall be commenced within one (1) year after the cause of action shall have accrued; and
12. An action for relief, not hereinbefore provided for, can only be brought within five (5) years after the cause of action shall have accrued.
B. Collection of debts owed by inmates who have received damage awards pursuant to Section 566.1 of Title 57 of the Oklahoma Statutes shall be governed by the time limitations imposed by that section.