Van Dyke v. Van Dyke

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In the Matter of the Estate of Welby J. Van Dyke, Deceased.
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Rene Van Dyke and Albert Van Dyke,
as informal personal representatives,
Appellees,

v.

Joe Van Dyke,
Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 981237-CA

F I L E D
May 13, 1999 1999 UT App 165 -----

Sixth District, Loa Department
The Honorable Louis G. Tervort

Attorneys:
Charles A. Schultz, Salt Lake City, for Appellant
J. Michael Gottfredson, Salt Lake City, and Marvin D. Bagley, Richfield, for Appellees

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Before Judges Bench, Davis, and Orme.

ORME, Judge:

"[A] trustee's transfer of trust property to himself . . . may constitute a breach of the trustee's fiduciary duty and a voidable 'sale . . . affected by a substantial conflict of interest,' except to the extent that 'the trust expressly authorized the transaction.'" In re Estate of West, 948 P.2d 351, 355 (Utah 1997) (emphasis added) (quoting Utah Code Ann. § 75-7-404(2)). Further, "[t]he terms of a trust, unless illegal or contrary to public policy, govern the lawfulness of a trustee's investment of trust funds, even if contrary to statutory or common law limitations." Wheeler ex rel. Wheeler v. Mann, 763 P.2d 758, 760 (Utah 1988). We assume the will and trust are enforceable because appellant has not challenged them. As such, Utah law is clear that their terms trump the conflict of interest provisions of Utah Code Ann. §§ 75-3-712, 75-7-404(2) (1993). Because transfer and sale of agricultural assets to Albert and Rene VanDyke were expressly authorized by the trust, the trial court did not err when it denied appellant's motion to avoid the transfers of property to his brothers.

Affirmed.(1)
 
 

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Gregory K. Orme, Judge

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WE CONCUR:
 
 
 

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Russell W. Bench, Judge
 
 

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James Z. Davis, Judge

1. We have considered the argument of the appellees that this court is without jurisdiction to hear this appeal and find it to be without merit. We therefore decline to address it further. See State v. Carter, 776 P.2d 886, 888 (Utah 1989); State v. Payne, 964 P.2d 327, 332 n.3 (Utah Ct. App. 1998).