Heisinger v. Cleary
Allegations that an executrix helped to arrange to hire an appraiser who grossly overvalued estate assets may be sufficient to allege breach of fiduciary duty. After the plaintiff’s father passed away on Nov. 9, 2007, the plaintiff’s aunt, Ann Dillon, met with a co-executor, who advised her that an appraiser should be hired to estimate the value of her brother’s shares of stock in a closely held business, the F.A. Bartlett Tree Expert Co. Dillon, who worked for 35 years as a speech and language pathologist in the public schools, agreed. An appraiser, Management Planning Inc., valued the decedent’s common stock at $4.84 million and the decedent’s preferred stock at $19,020. Dillon relied on the appraisal when she prepared federal and Connecticut estate tax returns. The estate was unable to pay the federal tax until it sold 189 shares of common stock to Bartlett Tree Expert Co. for the price in the Management Planning Inc. appraisal. Dillon’s nephew, who was the decedent’s beneficiary, sued Dillon and alleged that the estate was grossly overvalued, and that Dillon breached her fiduciary duty as an executrix. The plaintiff nephew presented evidence that another appraiser, Tim Hurley of Bentley Associates, valued his father’s shares of stock in the Bartlett Tree Expert Co. at approximately $1.76 to $2.46 million. Dillon denied that she breached her fiduciary duty as an executrix and moved for summary judgment. "Contrary to the plaintiff’s argument," wrote the court, "Dillon is not responsible for a co-executor’s defalcations unless they were open, obvious and remediable by Dillon." The Bentley Associates appraisal could raise a genuine issue of material fact with respect to whether Dillon breached her fiduciary duty, and the court denied Dillon’s motion for summary judgment.