Question: Your client is the founder of Epsilonia, a highly successful, closely held business. Your client never married or had children, but he did have three sisters, all of whom were active in the company's management and served on the company's Board of Directors. Epsilonia was started over 70 years ago. Prior to 1960, your client was the sole stockholder of Epsilonia. As the company's value grew rapidly, your client became concerned about income taxes and estate taxes. This concern was common in 1960 because the top income tax rate was 91%, and the top estate and gift tax was likewise extremely high. Long-term capital gains tax rates were 25%.
In 1960, your client retained 40% of Epsilonia stock for himself and placed the remaining 60% of the stock into trust for the benefit of his sisters and their children. The trust said, in relevant part: "The split-interest trust annually shall distribute trust income to each sister during her life. Upon each sister's death, the principal attributable to her share of the trust shall be distributed in kind to her then-living children." Your client remained the sole trustee of the trust during his lifetime. Upon the recent death of your client, his sisters became cotrustees. Due to the generosity of your client to his sisters during his lifetime, each sister is independently wealthy and self-sufficient financially.
Epsilonia stock historically has paid a dividend distribution rate equal to only .007% on market value. Two of the three sisters do not mind that Epsilonia stock pays such a low dividend because the stock has generated substantial capital appreciation, making each sister's children "ridiculously rich." In fact, the Epsilonia stock has appreciated at more than twice the rate of the overall stock market from 1960 to present. However, one of the sisters would like to receive more income for herself and has pleaded with her sisters, as cotrustees, to shift the trust's assets into a High-Income Stock Index Fund that will generate significant dividend income. The other sisters have refused, however. As a result, the aggrieved sister has filed a lawsuit, claiming that, as the income beneficiary of the trust, she is receiving an inadequate amount of money. She contends that:
• The cotrustees have breached their fiduciary duty of reasonable care by failing to adequately diversify the trust.
• The cotrustees have breached their fiduciary duty of impartiality. This duty requires trustees to establish investment policies that give "due regard" to the interests of both the income beneficiary and the principal beneficiary in a split interest trust .
a. Did the three sisters, as cotrustees, unethically gamble with the trust's wealth by maintaining a concentrated investment ownership position only in Epsilonia stock?
b. In this situation, was it unethical for the cotrustees to keep all the trust's assets invested in a stock that generated such a low dividend that the trust's income beneficiaries barely received any income?