Ellen Aguiar v. William Natbony, et al

Filing 3

AFFIDAVIT of SIGRID STONE McCAWLEY. Document filed by Ellen Aguiar. (arc) (Additional attachment(s) added on 8/18/2011: # 1 Ex 1, # 2 Ex 2, # 3 Ex 3 Part 1, # 4 Ex 3 Part 2, # 5 Ex 3 Part 3, # 6 Ex 3 Part 4, # 7 Ex 3 Part 5, # 8 Ex 3 Part 6, # 9 Ex 3 part 7, # 10 Ex 4, # 11 Ex 5, # 12 Ex 6, # 13 ex 7) (arc).

33.

As trustee of the Trusts, Natbony has a fiduciary obligation to the plaintiff who

was (and still should be) a beneficiary ofthe Trusts. His duty was to serve as a neutral and
disinterested trustee.
34.

Natbony abused his discretion as a trustee, he did not exercise reasonable care,

diligence or prudence, and he acted in bad faith by allowing the Kaplans, to effectively manage
the Trusts.
35.

To the extent that the Trusts provide discretion to the trustee to make

determinations, the trustee is required to make an independent decision in good faith, to recuse
himself or seek instructions from the court, where as here, he has a conflict of interest, and with
full regard to the fiduciary duty that he owes all the beneficiaries of the Trusts.
36.

Natbony did not exercise his discretion independently and in good faith. Instead,

as a result of the Kaplans' influence and control over him, he improperly removed plaintiff and
her issue as a contingent beneficiary ofthe Trusts. Plaintiff Aguiar was damaged by Natbony's
abuses of discretion, breach of fiduciary duty and bad faith stemming from her removal as a
beneficiary ofthe Trusts. As a result ofNatbony's failure to exercise independent judgment and
his abuse of discretion, bad faith, conflicts, and failure to exercise reasonable care, diligence and
prudence, the January 7, 2009 Amendments to the Thomas and Dafna Kaplan Trusts should be.
deemed invalid and/or null and void and/or rescinded.

Count II
(Breach of Fiduciary Duty - Bad Faith Use of Trust Assets)
37.

Plaintiff incorporates by reference the allegations contained in paragraphs 1 - 36

and count I.
38.

As trustee ofthe Trusts, Natbony has a fiduciary obligation to the plaintiff who

was (and still should be) a beneficiary of the Trusts.

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39.

As trustee, Natbony was required to exercise his fiduciary duties in managing the

Trusts' assets. Natbony owed the Trusts beneficiaries a duty of reasonable care, diligence and
prudence in the administration of the Trusts. Natbony failed to exercise reasonable care,
diligence or prudence and abused his discretion and acted in bad faith in connection with
protecting the Trusts' assets.
40.

Natbony abused his discretion and his fiduciary duty of reasonable care, good

faith, diligence and prudence by allowing the Kaplans to determine the investments and
otherwise manage the Trusts and by making investments that were not in the best financial
interests ofthe Trusts. Natbony further breached his fiduciary duty and dissipated trust assets by
allowing the Kaplans to use the assets of the Trusts for their own personal benefit, to the
detriment of the other beneficiaries of the Trusts. He breached his fiduciary duties and abused
his discretion by, among other things, purchasing millions of dollars in art at the direction of
Thomas Kaplan for his personal use. The art purchases were for an improper purpose and were
unproductive investments that damaged the Trusts and the beneficiaries. In addition, Natbony
abused his discretion and acted in bad faith by taking direction from Thomas Kaplan to purchase
real estate, including unproductive land in the Pantanal for use in Thomas Kaplan's charitable
Panthera Project.
41.

As a result of Natbony' s abuses of discretion and bad faith in handling the Trusts'

assets, plaintiff Aguiar was damaged because, upon information and belief, the Trusts' assets
have been significantly dissipated or put at risk. Therefore, the trustee should be surcharged for
the losses to the Trusts with statutory interest as a result of his mismanagement and the trustee
should be directed to provide a full and complete accounting of the financial condition and
management of the Trusts.

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Count III
(Breach of Fiduciary Duty - Unitrust Election)

42.

Plaintiff incorporates by reference the allegations contained in paragraphs 1 - 41

and Counts I and II.
43.

As trustee ofthe Trusts, Natbony has a fiduciary obligation to the plaintiff who

was (and still should be) a beneficiary of the Trusts.
44.

Natbony breached his duty of loyalty, good faith and reasonable care, diligence

and prudence by misleading plaintiff Aguiar as to the effect ofthe Unitrust Elections and/or
failing to fully inform plaintiff Aguiar of the details of the Unitrust Elections including failing to
disclose the enormous magnitude of the increase in the amount that Natbony was entitled to
distribute from the Trusts to Thomas and Dafna Kaplan and consequent decrease in the amount
available for distribution to the beneficiaries after the Annuity Term.
45.

Natbony failed to fully inform the beneficiaries of their rights related to the

Unitrust Election which affected both Trusts and indeed, intentionally concealed from the
beneficiaries the facts necessary for plaintiff Aguiar to make an informed decision.
46.

With respect to the Thomas Trust, Natbony failed to seek the Unitrust Election

within the two year period allowed by law. Therefore, Natbony was required to obtain the
consent of all beneficiaries and the consent had to be informed.
47.

Natbony failed to make any effort to provide a complete explanation of the

Unitrust Elections to plaintiff Aguiar and instead simply mailed a scant one-page letter that made
no mention of the significant financial impact of the Unitrust Elections and directed plaintiff
Aguiar to sign and return the Consent included with the letter.
48.

Had plaintiff Aguiar been fully informed of her legal rights with respect to the

Unitrust Elections she never would have executed the Consent. The Trusts, and plaintiff, have

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been damaged by Natbony's failure to properly exercise his fiduciary duties with respect to
plaintiff in connection with the Unitrust Elections.
49.

Natbony also failed to ask the court to appoint guardians for the minor children

among plaintiff Aguiar and her issue when making the Unitrust Elections.
50.

Natbony abused his discretion intentionally, in bad faith and with reckless

disregard made the Unitrust Elections. Although he had (and still has) a conflict, Natbony took
such action at the direction of Thomas and Dafna Kaplan, the Settlors of the Trusts.
51.

The Trusts, and plaintiff, were damaged by these fiduciary breaches in that the

principal of the Trusts has been dramatically reduced by the increased payments to the Kaplans.
. 52.

As a result ofNatbony's numerous breaches, the court should render the Unitrust

Elections invalid and/or null and void and/or rescinded and the trustee should be surcharged with
statutory interest for any additional payments Natbony made to the Setllors on account of the
Unitrust Elections.
Count IV
(Aiding and Abetting Breach of Fiduciary Duty Against the Kaplan Defendants)
53.

Plaintiff incorporates by reference the allegations contained in paragraphs 1 - 52

and Counts I - III.
54.

As trustee of the Trusts, Natbony has a fiduciary obligation to the plaintiff who

was (and still should be) a beneficiary of the Trusts.
55.

Natbony abused his discretion, breached his duties to plaintiff Aguiar and her

issue, including his fiduciary duty of undivided loyalty, good faith, reasonable c:;rre, diligence
and prudence and acted in bad faith by allowing the Kaplans to influence the trustee's actions
and effectively manage the Trusts. Specifically, Natbony wrongfully removed plaintiff Aguiar
and her issue as beneficiaries ofthe Trusts, acquired property for the benefit ofthe Kaplans and

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