Practice point: Courts have the discretion to take into consideration all of a
trustee's misconduct in determining the grant of annual commission, even
conduct that occurred after the period applicable to the commission. The Surrogate has broad discretion to
deny commission to a trustee if the trustee has engaged in misconduct. In determining if a commission should be
denied, misconduct that is not directly related to the commission being
sought may be taken into consideration,
Student note: Trustees can be denied commission where their acts involve bad
faith, a complete indifference to their fiduciary obligations, or some
other act that constitutes malfeasance or significant misfeasance. The denial of a commission, however, should
not be in the nature of an additional penalty. Rather, it should be based on the trustee's failure to properly serve the trust.
Case: Matter of Gregory Stewart Trust, NY Slip Op 05290 (1st Dept. 2013).
Here is the decision.
Tomorrow's issue: Restitution of funds.
