Contract Liability.

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Presentation transcript:

Contract Liability

Warning Do not sue a trust! A trust is not a legal entity. You must sue the trustee in the trustee’s representative capacity.

Suit against Trustee, in representative capacity Common law = not allowed Texas = allowed if contract was within trustee’s capacity to make. § 114.084(a).

Suit against Trustee personally General Rule = yes Exceptions: Express provision in contract (not trust) excluding trustee from personal liability. Trustee signing contract “as trustee” is prima facie evidence of intent to exclude personal liability.

Duty of Attorney If represent Trustee: If represent other contracting party:

Notice duty of Plaintiff -- § 115.015 Purpose = alert beneficiaries that trustee is breaching contracts; beneficiaries may intervene. Plaintiff must give notice to beneficiaries by registered or certified mail: Within 30 days of filing suit, and At least 31 days before judgment. If plaintiff submits written request, trustee must provide names and addresses within 10 days. Notice to the “list” beneficiaries deemed sufficient.