In re Naarden Trust
In In re Naarden Trust, 195 Ariz. 526, 990 P.2d 1085 (App. 1999) the trustee argued that the lawsuit arose out of the trust instrument and a divorce settlement agreement, thereby allowing the award of attorneys' fees pursuant to 12-341.01. Id. at 527, P 3, 990 P.2d at 1086.
The Court pointed out, however, that a trust is not a contract, id. at 529, P 10, 990 P.2d at 1088, and that the trustee's fiduciary duties are enforceable "even though the trustee received no consideration." Id. at P 12. Thus, the trustee's duties "initially stem from the special nature of the relation between trustee and beneficiary and . . . although the trustee may be liable for a breach of fiduciary duties, the undertakings or promises in a trust instrument are not normally 'contractual.'" Id. at 530, P 15, 990 P.2d at 1089.