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In the Matter of the

March 7, 2012

IN THE MATTER OF THE ESTATE OF BERNADINE J. MONCUR.


APPEAL FROM THE CIRCUIT COURT OF THE FOURTH JUDICIAL CIRCUIT BUTTE COUNTY, SOUTH DAKOTA THE HONORABLE JOHN W. BASTIAN Judge

The opinion of the court was delivered by: Severson, Justice

CONSIDERED ON BRIEFS ON NOVEMBER 14, 2011

[¶1.] Two beneficiaries of the Moncur Revokable [sic] Family Trust (Trust) petitioned the trial court to remove the co-trustees of the Trust on the grounds that the co-trustees violated various fiduciary duties. The trial court denied the petition. The beneficiaries appeal, raising the following issues: (1) whether the trial court erred in finding the co-trustees did not violate their fiduciary duties by using a surrogate bidder to purchase Trust property at public auction; and (2) whether the trial court erred in finding the remaining allegations that the co-trustees breached their fiduciary duties were without merit. We affirm.

Background

[¶2.] Bernadine Moncur (Bernadine) created the Trust on December 20, 2002.*fn1 The beneficiaries of the Trust included Bernadine's five daughters: Lois Marie Moncur (Lois), Dianne Irene Shear (Dianne), Miki Val Scheef (Miki), Shirley Kay Anderson (Shirley), and Janet Leann Nelson (Janet). Under the terms of the Trust, Bernadine served as trustee until the date of her death, at which time Miki and Dianne were to serve as successor co-trustees.

[¶3.] Bernadine executed her last will and testament on January 14, 2003.

Under Article II of the will, Bernadine devised and bequeathed her entire estate to the Trust. Miki and Dianne were named as co-personal representatives. Both the Trust document and the will document were prepared by Bernadine's attorney, Leroy Hill.

[¶4.] Bernadine died on December 25, 2007. On December 31, 2007, Miki and Dianne accepted their appointment as co-personal representatives of the estate and co-trustees of the Trust. In accordance with Hill's advice, Miki and Dianne established a single checking account for the Moncur Trust and the Moncur estate. This was done because under Bernadine's will, the Moncur estate was to be devised and bequeathed to the Moncur Trust.

[¶5.] Among the assets held in the Trust was certain real property located in Butte County. Shirley and Janet wanted the Butte County property sold immediately. Miki and Dianne elected not to sell the Butte County property immediately because they believed it was prudent to delay disposition of the property until after the period for notice to creditors expired on May 12, 2008.

[¶6.] Miki and Dianne arranged for the Butte County property to be sold at auction. The auction took place on November 13, 2008.*fn2 Miki and Dianne sent a copy of the auctioneer's employment contract to Shirley and Janet's attorney. An addendum to the employment contract stated family members were permitted to enter the bidding. At the auction, Miki and Dianne used a surrogate bidder and purchased the Butte County real estate for $309,000.

[¶7.] On June 5, 2009, Shirley petitioned the circuit court to remove Miki and Dianne from their positions as co-trustees of the Trust. Janet joined the petition. The petition alleged Miki and Dianne breached their fiduciary duties to the beneficiaries of the Trust by using a surrogate bidder to purchase the Butte County property without obtaining permission from the beneficiaries. The petition also contained several other allegations that Miki and Dianne violated the terms of the Trust and breached their fiduciary duties to the beneficiaries.

[¶8.] A court trial was held on February 24, 2010 and on April 23, 2010.

In a memorandum opinion dated November 30, 2010, the trial court denied Shirley and Janet's petition and found Miki and Dianne did not ...


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