Wills & Trusts – Trustee Replacement – Individual Capacity

In this suit against defendant as an executor of an estate and a trustee of a trust established by the testator in June 2007, a Loudoun County Circuit Court grants defendants’ demurrers to most counts of plaintiffs’ complaint, but will allow plaintiffs to go forward on claims for removal and replacement of trustee and executor, and for declaratory judgment and reformation.

I generally agree with defendant executor that the complaint fails to inform not only him, but each defendant, of the true nature of the claim against him or her. There are some counts where it is clear which defendant or defendants from which relief is requested. For example, counts for civil conspiracy and unjust enrichment are clearly claims against Andrew, Anna and Marykim Stamile, and the counts for surcharge and injunctive relief and removal and replacement of trustee and executor are clearly against Andrew as trustee and executor. However, some counts do not even state from whom relief is requested. For example, count I (for an accounting) does not state from whom an accounting is demanded. Count II (for breach of fiduciary duty) does not state from whom plaintiffs are requesting damages. The same is true as to the counts involving fraud.

I do not think that any defendant in this case should have to guess as to the nature or application to him or her of any claim. Taken as a whole, no defendant can be reasonably assured as to which claim, or the nature of it, applies to him or her.

The court also agrees that counts I, II, IX and X all fail to state a cause of action against defendant trustee/executor individually. I think these causes of action can only be against Andrew as trustee under the 2007 trust and as executor of the estate. Further, I agree with Andrew that plaintiffs have no standing to allege damage or injury to the testator’s property. Andrew, as executor, would obviously take no action to enforce any claim of the testator’s estate against himself, Anna or Marykim. Virginia does not recognize a cause of action for tortious interference with an inheritance.

The court also sustains a demurrer to the count for conversion, as the properly allegedly converted was the testator’s, not plaintiffs’.

I do think the complaint alleges sufficient facts to show a confidential relationship between Andrew and the testator, but the complaint otherwise fails to state a claim for undue influence.

Andrew argues as to count X, for removal and replacement of trustee and executor, and count XI, for declaratory judgment and reformation, that plaintiffs have failed to allege that they lack an adequate remedy at law for equitable claim in each count. Andrew’s demurrer on this ground is overruled because I do not think the relief purportedly requested by plaintiffs is so equitable in nature as to require a lack of adequate remedy at law before it can be granted. Also, I do not agree that count XI fails to allege sufficient facts to establish a cause of action for reformation.

Carter v. Wyczalkowski, Executor of 2007 Will and Trustee of 2007 Trust of Marcin Wyczalkowski (Chamblin, J.) No.56468, Dec. 15, 2009; Loudoun County Cir.Ct.; Michael C. Whitticar, Jennifer D. Royer, Woodrow W. Turner, Erin P. Thompson for the parties. VLW 009-8-260, 6 pp.