Hold Harmless Agreement For Trustee

With respect to fairness, the court focused on how the release was compared to the relief the agent was able to obtain in a court proceeding to settle his accounts. The majority opinion concluded that “the terms of PNC`s exemption and indemnification clause do not constitute a radical departure from the common law protection and legal right to which PNC was already entitled”, namely compensation for “costs reasonably and properly incurred by the management of a trust”. In particular, the majority found that, while an agent could correctly request the release of the activities of his fiduciary service, “he could not apply for the exemption from liability of his securities intermediation for the trust`s brokerage services if, by chance, the agent used his own brokerage division of the institution to make trades on behalf of the trust. [If it could], the financial institution would effectively use its position as agent to secure a release for its securities department, which would be contrary to the duty of loyalty. Dissent. The three dissenting judges allegedly found that PNC had breached its obligations by issuing a call for tenders for the declassification because it wished to (1) release PNC in its capacity as contractor and in its role as agent, (2) for all costs (that they were reasonably and properly incurred) and (3) for any liabilities (including vis-à-vis third parties). None of those safeguard measures was available in the context of a procedure for approving the trustee`s accounts. The dissent also found that PNC had an obligation to explain to recipients how the agreement extended PNC`s liability protection beyond the protection it would have obtained after a court approved final accounting. Finally, the dissent stated that “we should not tolerate the practice where a bank asks beneficiaries to insure the bank against its own mistakes.” The agreement invited beneficiaries to acknowledge that they had consulted a lawyer (or had decided not to do so), audited the agent`s accounts, and authorized PNC`s management of the trust. It also contained a provision that exempted and indemnifies PNC, both as an agent and in its capacity as a business, from “all losses, claims, claims, supplements, causes of recourse, costs and expenses (including attorneys` fees) that may arise from the management of the trust.” Of course, the relevance of the disclosure is in the eye of the viewer, and this “eye” can consider the situation a posteriori many years later. Agents would do well to think carefully about the facts to be disclosed in order to avoid asserting that they have gone too far or that the beneficiary is not related because he or she has not received sufficient explanation.. . .

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