PROBATE CORNER
PROBATE CORNER
Is A Trust A Contract ? ( Continued )
DAVID M . GARTEN
See Garber v . Garber-Nevins , 2023 Ariz . App . Unpub . LEXIS 653 ; 2023 WL 4571160 ( Ariz . App 7 / 17 / 23 ); Isgro v . Wells Fargo Bank , N . A ., 2019 Ariz . App . Unpub . LEXIS 106 ; 2019 WL 273373 n1 ( Ariz . App . 1 / 22 / 19 ) ( A trustee who fails to perform his duties is not liable to the beneficiary for breach of contract .); Diaz v . Bukey , 195 Cal . App . 4th 315 , 125 Cal . Rptr . 3d 610 ( Cal . App . 2011 ) ( A beneficiary of a trust receives a beneficial interest in trust property while the beneficiary of a contract gains a personal claim against the promissor . Moreover , a fiduciary relationship exists between a trustee and a trust beneficiary while no such relationship generally exists between parties to a contract ); McArthur v . McArthur , 224 Cal . App . 4th 651 , 168 Cal . Rptr . 3d 785 ( Cal . App . 2014 ) ( same ); Schoneberger v . Oelze , 208 Ariz . 591 , 96 P . 3d 1078 ( AZ App 2004 ) ( same ).
Pursuant to the Restatement ( Third ) of the Law of Trusts § 5 , the following are not trusts : ( a ) successive legal estates ; ( b ) decedents ' estates ; ( c ) guardianships and conservatorships ; ( d ) receiverships and bankruptcy trusteeships ; ( e ) durable powers of attorney and other agencies ; ( f ) bailments and leases ; ( g ) corporations , partnerships , and other business associations ; ( h ) conditions and equitable charges ; ( i ) contracts to convey or certain contracts for the benefit of third parties ; ( j ) assignments or partial assignments of choses in action ; ( k ) relationships of debtors to creditors ; and ( l ) mortgages , deeds of trust , pledges , liens , and other security arrangements .
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Although § 736.0102 ( 2 ) and ( 3 ), F . S . list those matters where the FTC does apply , contracts in general are not on the list . Therefore , if the issue arises , it may be necessary to refer to the Restatement ( Second ) of Trusts .
PBCBA BAR BULLETIN 19