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Article 2B provided that during the lives of Etta and Alfred, the trust property would be equally allocated between two separate living trusts, the Alfred Kirschner Trust (the Alfred trust) and the Etta Kirschner Trust (the Etta trust), and the property in each trust was to remain separate.
Article 6 provided that as long as Etta and Alfred were both alive, each could revoke or modify their own trust.
Following a trial that stretched over ten months, the trial judge found Howard unduly influenced Etta to execute amendments to the trust.
The judge also found Howard crafted a "gift-back" plan without the knowledge of his parents, and that Howard and his wife breached their fiduciary duties to Eileen and her family with respect to the partnership.
In anticipation of Howard's graduation from dental school and joining the practice in 1961, Alfred purchased a piece of property in Far Rockaway, New York, designed and built a building, and moved his dental practice to the building. By all accounts, the dental practice flourished, ultimately allowing the practice to employ several dentists and other professional staff.
In the early to mid-1980s, Alfred and Howard decided to terminate the pension plan. After attending a dental society meeting concerning estate planning and sheltering assets, Alfred and Etta retained a law firm in Utah to prepare their estate plan.
In December 1987, Alfred dispatched Howard and Deborah to Salt Lake City to meet with Dwight Epperson, an associate at the firm, to work with them.
The judge voided all of the gifts of partnership interests by the Pass family to Howard and his family that occurred before and after Alfred died.
The judge awarded Eileen and the Pass family damages, prejudgment interest, and attorneys' fees, totaling ,838,271.71.