10/09/2026
The exculpatory clause did not save the trustee.
Trust documents and terms of use are often drafted to shield a trustee from liability. A Virginia court recently made clear that boilerplate has a ceiling.
In Eastern Point Trust Company v. Pitt, McGehee, Palmer, Bonanni & Rivers, the trustee pointed to broad exculpatory language and argued the claims against it could not proceed. The court disagreed as to the fiduciary duty and trust claims.
The reason is statutory. Virginia Code § 64.2-799(A)(1) provides that a trustee is not relieved of liability for a breach of trust committed in bad faith or with reckless indifference to the purposes of the trust or the interests of the beneficiaries.
What does that mean for a family?
If a trustee has favored itself, ignored the terms of the trust, or refused to account, language in the paperwork that appears to waive liability is not the end of the conversation. It is the start of a specific legal question: what conduct is alleged, and does the clause actually reach it?
The record decides that. Trust instruments, statements, accountings, correspondence, and the trustee's own internal records are what show intent. They also become harder to reconstruct with time, and the Trust Code has its own deadlines.
If you are dealing with a trustee who will not account, or a family member abusing a position of trust, contact us.
General information only, not legal advice. Every case depends on its facts and the applicable law.
