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Subject: AFT-A and AFT-B Comparison (was Re: Author's Family Trust) Newsgroups: alt.religion.scientology References: Message-ID: <2f31cc98edc3d6abb5a34e3f804af7c8@dizum.com> Date: Wed, 10 Apr 2002 18:40:04 +0200 (CEST) Mail-To-News-Contact: abuse@dizum.com Organization: mail2news@dizum.com Lines: 567 Path: news2.lightlink.com!news.lightlink.com!gail.ripco.com!news.chaven.com!ord2-feed1.news.algx.net!jfk3-feed1.news.algx.net!allegiance!news.stealth.net!news.stealth.net!194.25.134.62.MISMATCH!newsfeed00.sul.t-online.de!newsfeed01.sul.t-online.de!t-online.de!fr.clara.net!heighliner.fr.clara.net!news.tele.dk!small.news.tele.dk!news.dizum.com!sewer-output!mail2news Xref: news2.lightlink.com alt.religion.scientology:1452994 This report is the result of a side-by-side comparison of the trust instruments for AUTHOR'S FAMILY TRUST-A and AUTHOR'S FAMILY TRUST-B. Two paralegals did the comparisons, one reading AUTHOR'S FAMILY TRUST-A aloud while the other read AUTHOR'S FAMILY TRUST-B along silently, indicating where every difference occured. Then a computerized comparison was done on each section that had been marked as being different using software designed specifically for such comparisons. The results are outlined and commented below. This report is not a legal analysis of the differences; it is only a presentation of the differences, provided as an aid to legal analysis. Nothing in this document is intended as legal advice, nor should anything in this document be construed or used as legal advice. In isolating the differences, the following four classes of "differences" have been eliminated from the comparison: 1. TYPOGRAPHICAL ERRORS: E.g., "agains" rather than "against;" "pursuatn" rather than "pursuant." In places these were spelled correctly in one document, and spelled incorrectly in the other. These could be attributable to OCR errors, or typist errors, or intentional errors to foil comparisons. Such errors are not fatal or challengeable in legal documents except where egregious and materially affecting the meaning and legal interpretation of the document. 2. OMISSION OF GRAMMATICAL ARTICLES AND OTHER TERMS: The word "the" was included in places in one document, but excluded in the other document, e.g., "as the Trustee" vs. "as Trustee." In one place the word "shall" was included in one document but omitted from the other, but in such a way that does not materially alter the meaning of the sentence: "provided that any such loan be adequately secured" vs. "provided that any such loan shall be adequately secured." These could also be interpreted in the manner of typographical errors. 3. SINGULAR VS. PLURAL: In some cases a term had a trailing "s" in one document but not in the other. These discrepencies between documents, though, are all covered by the "singular/plural" clause at "Choice of Law, Gender, Number and Headings" in each of the contracts, and so are null as regards legal interpretation. 4. NUMBERING OF CONTRACTUAL ARTICLES: They are different in the two documents, but the numbering has no legal ramifications as is covered in "Choice of Law, Gender, Number and Headings" in each of the contracts. E.g., "TRUSTEE'S POWERS" is "ARTICLE SEVEN" in one of the documents, and "ARTICLE EIGHT" in the other. Since the numbering has no legal significance (except where one Article references another Article in the same document), we have omitted the Article numbers from this comparison, using, instead, only the Article subject titles. Introductory paragraphs of each document, which only established the parties and dates of execution, were ignored. This left six (6) sections, or Articles, of the two documents that were different enough to include in this report. Note that this presentation of differences contains none of the sections that were identical in both documents. This is not to minimize the possible importance of those sections in any legal analysis. This presentation, below, is only to facilitate the identification of sections of the two documents that are different. I. AUTHOR'S FAMILY TRUST-B ONLY No comparable article is in AUTHOR'S FAMILY TRUST-A: RECITALS GIVING RISE TO THIS AMENDED AGREEMENT On May 10, 1982, Trustor created the AUTHOR'S FAMILY TRUST, for the benefit of his family, friends and the religion of Scientology, of which he is the Founder. By this instrument, Trustor intends to amend and (for the sake of convenience) restate the AUTHOR'S FAMILY TRUST. In declaring this Trust, Trustor has made few changes in the ultimate disposition of the assets to be held by the Trustee herein. II. NAMES OF TRUSTS The only difference in this Article is the rather obvious self-referencing names of the trusts, but is included here anyway: A. FROM AUTHOR'S FAMILY TRUST-A: NAMES OF TRUSTS The Trusts created in this instrument may be referred to collectively as the AUTHOR'S FAMILY TRUST-A and each separate Trust created in this Agreement, unless otherwise provided, may be referred to by adding the name of the beneficiary. B. FROM AUTHOR'S FAMILY TRUST-B: NAMES OF TRUSTS The Trusts created in this instrument may be referred to collectively as the AUTHOR'S FAMILY TRUST-B and each separate Trust created in this Agreement, unless otherwise provided, may be referred to by adding the name of the beneficiary. III. DISPOSITIVE PROVISIONS UPON TRUSTOR'S DEATH This section reflects the greatest differences in the two documents. AUTHOR'S FAMILY TRUST-A references AUTHOR'S FAMILY TRUST-B only as "that certain AMENDED TRUST AGREEMENT of even date." AUTHOR'S FAMILY TRUST-B references and includes AUTHOR'S FAMILY TRUST-A by name, and also spells out in detail the disposition of all the assets: A. FROM AUTHOR'S FAMILY TRUST-A: DISPOSITIVE PROVISIONS UPON TRUSTOR'S DEATH Upon the death of the Trustor all principal and accumulated income, together with all distributions to this trust from any probate estate, life insurance proceeds or other source shall be held, administered and distributed in accordance with the provisions of that certain AMENDED TRUST AGREEMENT of even date, between L. RON HUBBARD, as Trustor, and NORMAN F. STARKEY, as Trustee, including any amendments made to such Trust Agreement prior to the death of Trustor. B. FROM AUTHOR'S FAMILY TRUST-B: DISPOSITIVE PROVISIONS UPON TRUSTOR'S DEATH Upon the death of the Trustor all principal and accumulated income of AUTHOR'S FAMILY TRUST-A and AUTHOR'S FAMILY TRUST-B, together with all distributions to this trust from any probate estate, life insurance proceeds to this trust from any probate estate, life insurance proceeds or other source shall be divided and distributed as follows: A. _Specific Distributions to Trustor's Wife._ As soon as convenient following Trustor's death, the Trustee shall distribute or cause to be distributed to Trustor's wife, if she survives Trustor for thirty (30) days, the following: 1. The sum of One Million Dollars ($1,000,000.00); and 2. That certain house, together with its contents, in which Trustor's wife currently resides, commonly known as 2345 Chislehurst Drive, Los Angeles, California 90027, and more particularly described as: Lot 72 of Tract No. 5337, as per map recorded in book 84, page 95 of maps, in the office of the Los Angeles County recorder. Such distribution shall be free and clear of all liens and encumbrances, or assessments and taxes of any kind which are due as of the date of the transfer. If Trustor's wife fails to survive for the requisite period, the distributions pursuant to this paragraph A shall be distributed in accordance with paragraph G of this ARTICLE SIX. B. _Specific Distributions to Trustor's Named Children._ As soon as is convenient following Trustor' s death the Trustee shall distribute the following sums to the following named individuals: 1. The sum of One Hundred Thousand Dollars ($100,000) to DIANA MEREDITH DeWOLF HUBBARD RYAN, if she survives Trustor for thirty (30) days, and if not then to her issue by right of representation. 2. The sum of One Hundred Thousand Dollars ($100,000) to MARY SUZETTE ROCHELLE HUBBARD, if she survives the Trustor for thirty (30) days, and if not then to her issue by right of representation. 3. The sum of One Hundred Thousand Dollars ($100,000) to ARTHUR RONALD CONWAY HUBBARD, if he survives Trustor for thirty (30) days, and if not then to his issue by righ of representation. 4. The sum of [Twenty-five thousand dollars - crossed out and One hundred thousand dollars handwritten] to KATHERINE MAY HUBBARD GILLESPIE, is she survives Trustor for thirty (30) days, and if not then to her issue by right of representation. 5. If any individual named in subparagraphs 1, 2 and 3 of this paragraph B fails to survive for the requisite period and dies without issue, his or her bequest shall be divided equally among the remaining name individuals, or their issue by right of representation. C. _Specific Distributions to Grandchildren: As soon as is convenient following Trustor's death the Trustee shall distribute to each of the children of DIANA MEREDITH DeWOLF HUBBARD RYAN, MARY SUZETTE ROCHELLE HUBBARD and ARTHUR RONALD CONWAY HUBBARD, who are living or in gestation at the time of Trustor's death and who shall survive Trustor by thirty (30) days, the sum of Fifty Thousand Dollars ($50,000). In no event shall any distribution, pursuant to this paragraph C, be made to the issue of any other child of Trustor, whether such child is living or deceased on the date hereof. D. _Distribution Retained in Trust._ Any distribution provided for in paragraphs B, C or D of this ARTICLE SIX to a person who at the time of such distribution shall be under the age of twenty-two (220 shall be retained in trust by the Trustee as a separate share and be held and administered as otherwise provided in this instrument and be distributed as follows: The Trustee shall accumulate the net income of such person's share. The Trustee may apply so much of the accumulated income and principal of said person's share as the Trustee in the Trustee's absolute discretion may from time to time deem necessary or advisable for such person's proper health, maintenance, support and education until said person attains the age of twenty-two (22) years. Upon each person attaining the age of twenty-two (22) years, the Trustee shall distribute and deliver all of the remaining balance of said person's share of the Trust Estate to said person. If any of said persons should die prior to attaining the age of twenty-two (22) years, then upon such person's death all of the balance of such deceased person's share of the Trust Estate shall be distributed to his or her then living issue, said issue to take by right of representation, or if there should be no such issue of such deceased person then living, then upon such person's death all the balance o such share of the Trust Estate shall be distributed in equal shares to the brothers and sisters then living of the whole blood of such deceased person, if any, and if none, then to the lawful issue then living of any deceased brother or sister of the whole blood who shall take by right of representation, or if there be none then the remaining balance of such share of the Trust Estate shall be distributed to those of the Trustor's isse hen living who are beneficiaries or issue of beneficiaries specified in subparagraphs 1, 2 and 3 of Paragraph B and Paragraph C of this ARTICLE SIX above. Said issue shall take by right of representation, provided that if the Trustee is then holding another trust hereunder for the primary benefit of any such issue of the Trustor, his or her share shall augment prorata the distributed and undistributed portions of said trust and shall be held and administered as if it had been an original part of such trust. No distribution pursuant to this Paragraph D shall be made to any of the following or their issue: ALEXIS HOLLISTER and LAFAYETTE RONALD HUBBARD, JR., also known as L. RON HUBBARD, JR., also known as NIBS HUBBARD, also known as RONALD DeWOLF. it is believed that QUENTIN HUBBARD died, without issue: however, should the existence of issue become known at a later date, such purported issue shall receive no distributions hereunder. E. _Support Trust._ At the time of execution of this Trust Trustor is married to MARY SUE HUBBARD and is providing her with approximately $8,000.00 per month, after tax, for her support, maintenance and comfort. If she shall survive Trustor, the purpose of this Trust is to assure, to the extent possible, that after Trustor's death, she receive sufficient support to maintain a comparable standard of living. Trustor believes that $10,000.00 per month tax free will be sufficient to assure Trustor's wife of a comparable standard of living. If Trustor's wife does not survive Trustor, then the distribution provided for in this paragraph E shall be distributed as provided in Paragraph G below. It is further Trustor's intention to provide this support through a qualified terminable interest property trust, which shall be eligible for the federal estate marital deduction allowable under the Economic Recovery Tax Act of 1981 and the Trustee is hereby authorized to join with the Executor of Trustor's estate in making any election necessary to so qualify such trust. The Trustee shall, in his sole discretion, determine the amount to be set aside to this Support Trust. In exercising such discretion, the Trustee shall first adjust the $10,000.00 monthly support by increasing or decreasing such amount in the same ratio as the Consumer Price Index of the United States Department of Labor, Bureau of Labor Statistics, for all Urban Consumers, Loas Angeles/Long Beach/Anaheim Metropolitan Area, Los Angeles, California, or any substitute or successor index published by the Department of Labor, shall have changed from the first day of the month in which this Agreement is executed to the month of Trustor's death. Taking into account the figure thus arrived at, Trustor's wife's then life expectancy, the anticipated rate of inflation and investment yields over that expectancy, and anticipated Federal and State income tax rates, the Trustee is to fund the Support Trust with an account which in his sole discretion shall seem sufficient to provide to Trustor's wife sufficient after tax income with which to maintain a standard of living comparable to that which she was enjoying at the time of Trustor's death. Having determined the amount to be aside to the Support Trust, the Trustee is authorized to fund the Support Trust in money or in kind or partly in each, and if wholly or partly in kind, to select and transfer to the trust the specific asset or assets so selectedd; _provided_ that any asset transferred in kind to fund the trust shall be valued for that purpose at its fair market value determined as of the date of the transfer; and _provided_ _further_ that such assets shall not consist of Trustor's intellectual properties. Only assets which qualify for the marital deduction under Internal Revenue Code of 1954, as amended ("Code"_ shall be allotted to the trust. Also, to the extent that other assets qualifying for the marital deduction are available, the trust shall not be funded with: (a) assets with respect to which a credit for foreign taxes paid is allowable under the Code; (b) assets which may be subject to both income and estate taxes and which may be eligible for a credit or deduction; or (c) United States Treasury Bonds eligible for redemption at par in payment of federal estate tax. Subject to the foregoing, the decisions of the Trustee as to which assets shall be set aside to fund this trust for the benefit of Trustor's wife shall be conclusive and binding on all persons. Subsequent to Trustor's death and prior to the funding of the Support Trust, the Trustee shall make monthly distributions to Trustor's wife in the amount of $10,000.00 adjusted for the cost of living change as above provided. Trustee shall distribute all net income of the Support Trust, which shall include all income retroactive to the date of Trustor's death attributable to the assets used to fund the Support Trust and the monthly distribution referred to above, to or for the benefit of Trustor's wife at least annuallly. The Trustee shall make additional distributions from principal if required to meet the previously determined monthly level of support. In making such distributions, the Trustee shall treat distributions made to Trustor's wife, following Trustor's death and prior to funding the Support Trust, as advances against distributions of income from the Support Trust and income earned by assets following Trustor's death by prior to their transfer to the Support Trust. In addition the Trustee shall be authorized to make distributions from principal as they in their sole discretion shall deem necessary or advisable for the support, maintenance and comfort of Trustor's wife at the same standard to which she had become accustomed at the time of Trustor's death. No income or principal of the Support Trust shall be distributed to anyone other than Trustor's wife during her lifetime. During Trustor's wife's lifetime, she shall have the power to reasonably require the Trustee to make all or part of the principal of the Support Trust productive or to convert promptly any unproductive property into productive property. This power shall be exercised by Trustor's wife in a written instrument delivered to the Trustee. Notwithstanding the foregoing, Trustor's wife shall have no right to dictate specific investments for the Trust Estate. Trustor's wife shall not assign, transfer or convey, anticipate, pledge, hypothecate or otherwise encumber her interest hereunder, and neither the principal of this Support Trust nor any income thereof shall be liable for any debt of Trustor's wife or be subject to any bankruptcy proceedings or claim of creditors, or be subject to any judgment rendered against her or other process of any court in aid of execution of any judgments so rendered; and all of the income and principal of such trust shall be transferable, payable and delivereable only to her as above provided. The Suport Trust shall be subject to all authorizations and directions applicable to this Trust Agreement, as herein provided or hereafter amended, except that no provision, authorization or direction which would prevent the Support Trust from qualifying for the marital deduction under the Code shall apply to the Support Trust. On the death of Trustor's wife, the Trustee shall distribute any remaining balance of the Support Trust, including principal and accrued or undistributed income, to such one or more persons and entities, including the Trustor's wife's own estate and on such terms and conditions, either outright or in trust, and in such proportion as Trustor's wife shall appoint by Will or codicil specifically referring to and exercising this power of appointment. This power of appointment shall be exercisable by Trustor's wife alone in all events. Any portation of the Support Trust not effectively appointed by the Trustor's wife under this Paragraph E shall be distributed in accordance with Paragraph G of this ARTICLE SIX. It is the Trustor's intention to have the Support Trust qualify for the marital deduction under the Internal Revenue Code Section 2056 and the regulations pertaining to that section or any corresponding substitute provisions applicable to the Trust Estate. In no event shall the Trustee take any action or have any power that will impair the marital deduction, and all provisions regarding the Support Trust shall be interpreted to conform to this primary objective. F. _Taxes, Expenses and Debts of My Estate._ The Trustee is authorized and directed to pay out of the Trust Estate Trustor's debts, the estate and inheritance taxes, including interest and penalties, arising because of his death, Trustor's last illness and funeral expenses, attorneys' fees, and other reasonable and necessary costs incurred in administering Trustor's probate estate as and to the extent provided in his Last Will. Any such paymensts shall be paid out of the residue of the Trust after funding the distributions provided for in Paragraphs A, B, C, D, and E above. Notwithstanding the foregoing, no such payments shall be made from funds received by the Trustee from qualified employess benefit plans, or from payment of insurance policies on the Trustor's life, ans such funds shall not be used to satisfy any other obligations of the decedent's estate; provided, however, that to the extent there are no other assets available for such purposes, or the to the extent the Trust includes insurance in excess of the amount of the insurance exemption available under the California Revenue and Taxation Code, insurance proceeds may be used for such purposes. Nothing contained in this paragraph F shall accelerate any obligation or be construed as a direction to pay any obligation other than as the same becomes due. Notwithstanding anything contained in this paragraph F to the contrary, the Trustee shall have no right to pay any costs of administering Trustor's probate estate without the prior written approval of an independant firm of certified public accountants as to the reasonableness and necessity of such costs. G. _Residue._ All principal and accumulated income remaining after the distribution provided for in paragraphs A, B, C, D, E, and F, above including any lapsed gifts, shall, as soon as is convenient, be distributed to the CHURCH OF SPIRITUAL TECHNOLOGY a nonprofit religious corporation, of Los Angeles, California; provided that the CHURCH OF SPIRITUAL TECHNOLOGY is then an organization described in Section 501(c)(3) of the Code. If at the time of Trustor's death the status of the CHURCH OF SPIRITUAL TECHNOLOGY as an organization described in Section 501(c)(3) of the Code is under challenge or question by the Commissioner of Internal Revenue in any administrative or judicial proceeding, then the Trustee shall withhold the remaining Trust Estate from distribution until either the status of the CHURCH OF SPIRITUAL TECHNOLOGY as an organization described in Section 501(c)(3) of the Code has been confirmed in an administrative or judicial proceeding, or the CHURCH OF SPIRITUAL TECHNOLOGY has exhausted all administrative and judicial remedies in pursuit of confirming its status as an organization described in Section 501(c)(3) of the Code. If the status of the CHURCH OF SPIRITUAL TECHNOLOGY as an organization described in Section 501(c)(3) of the Code is confirmed, then the Trustee shall distribute the entire remaining Trust Estate to the CHURCH OF SPIRITUAL TECHNOLOGY. If the CHURCH OF SPIRITUAL TECHNOLOGY has exhausted all administrative and judicial remedies available to it and its status as an organization described in Section 501(c)(3) of the Code is not confirmed, or is denied, then the Trustee shall distribute the entire remaining Trust Estate to or among such other organization or organizations, whether domestic or foreign, which are organized exclusively for the purposes of the religion of Scientology as founded and further developed by Trustor and which is an organization or are organizations described in Section 501(c)(3) of the Code, as the Trustee may in his sole discretion determine. During any period in which the Trust Estate is withheld from distribution pending the outcome of proceedings respecting the status of the CHURCH OF SPIRITUAL TECHNOLOGY as an organization described in Section 501(c)(3) of the Code, the Trustee shall, not less frequently than annually, distribute all of the Trust's income to such organization, or among such organizations, as are organized exclusively for the purposes of the religion of Scientology as founded and further developed by Trustor and which is an organization or are organizations described in Section 501(c)(3) of the Code as the Trustee may in his sole discretion determine. IV. TRUSTEE'S POWERS Paragraph "U" from the two documents is dissimilar enough to include in this comparison. Also, AUTHOR'S FAMILY TRUST-B contains a paragraph "Z" that is not in AUTHOR'S FAMILY TRUST-A: A. FROM AUTHOR'S FAMILY TRUST-A: TRUSTEE'S POWERS ... U. _Power to Make Tax Elections._ To take any action and to make any election, in the Trustee's dicretion, in order to minimize the tax liabilities of these trusts and their beneficiaries. The Trustee shall allocate the benefits from such action or election among the various rights of any beneficiaries, or between the income and principal accounts, to compensate for the consequences of any tax election, investment or administrative decision that the Trustee believes has had the effect of directly or indirectly preferring one beneficiary or group of beneficiaries over others, except that this paragraph shall not be applied in such a fashion as would preclude Trustor's wife from receiving all net income of the Support Trust. B. FROM AUTHOR'S FAMILY TRUST-B: TRUSTEE'S POWERS ... U. _Power to Make Tax Elections._ To take any action and to make any election, in the Trustee's discretion, in order to minimize the tax liabilities of these trusts and their beneficiaries. The Trustee shall allocate the benefits from such action or election among the various beneficiaries. The Trustee shall make adjustments in the rights of any beneficiaries, or between the income and principal accounts, to compensate for the consequences of any tax election, investment or administrative decision that the Trustee believes has had the effect of directly or indirectly preferring one beneficiary or group of beneficiaries over others, except that this paragraph shall not be applied in such a fashion as would preclude Trustor's wife from receiving all net income of the Support Trust. ... Z. _Power to Acquire Assets._ It is Trustor's intention that the beneficiary, or beneficiaries, of the residue of the Trust Estate, as described in Paragraph G of Article SIX, own all of Trustor's copyrights, including but not limted to, and [sic: any(?)] contingent renewal rights that may be exercisable by the Trustor's heirs. Therefore, the Trustee shall have shall have the power to acquire Trustor's copyright or any contingent renewal rights therefor. V. INSURANCE, DISINHERITANCE, TAX RETURNS These similar paragraphs from the two documents are dissimilar in several ways: A. FROM AUTHOR'S FAMILY TRUST-A: INSURANCE, DISINHERITANCE, TAX RETURNS ... C. _Prohibition of Contest._ Should any Trust beneficiary, no matter how remote or contingent such beneficiary's interest appears, or any legal heir of the Trustor or any person claiming under any of them, contest the provisions of this Trust or attack or seek to impair the provisions of this Trust or attack or seek to impair or invalidate any of the Trust's provisions, or conspire with or voluntarily assist anyone attempting to do any of those things, then in such event the right of that person to take any interest given to him by this Trust shall be determined as it would have been determined has such person predeceased the execution of this instrument without surviving issue. B. FROM AUTHOR'S FAMILY TRUST-B: INSURANCE, DISINHERITANCE, TAX RETURNS ... C. _Prohibition of Contest._ Should any Trust beneficiary, no matter how remote or contingent such beneficiary's interest appeasr, or any legal heir of the Trustor or any person claiming under any of them, contest the provisions of this Trust or attack or seek to impair or invalidate any of the Trust's provisions, or conspire with or voluntarily assist anyone attempting to do any of these things, then in such event the right of that person to take any interest given to him by this Trust shall be determined as it would have been determined had such person predeceased the execution of this instrument without surviving issue. Notwithstanding the foregoing, the provisions of this paragrapg C shall not be deemed to apply to Trustor's wife in connection with the specific distributions to Trustor's wife under Paragraph A of ARTICLE SIX [DISPOSITIVE PROVISIONS UPON TRUSTOR'S DEATH] and the benefits payable to Trustor's wife during her lifetime under Paragraph E of ARTICLE SIX. VI. TRUSTEE PROVISIONS This contains a significant difference in compensation for the Trustee of $49,900.00. Also, AUTHOR'S FAMILY TRUST-A makes no mention of the CHURCH OF SPIRITUAL TECHNOLOGY (CST). A. FROM AUTHOR'S FAMILY TRUST-A: TRUSTEE PROVISIONS ... E. _Trustees' Fees._ During the lifetime of Trustor the Trustee, shall not receive any fees. Upon death of Trustor and continuing until the occurrence of the distributions, required by this Agreement, the Trustee shall be entitled to an annual fee not exceeding the sum of $100.00. B. FROM AUTHOR'S FAMILY TRUST-B: TRUSTEE PROVISIONS ... E. _Trustor's Fees._ During the lifetime of Trustor, the Trustee shall not receive any fees. Upon death of Trustor and continuing until the occurrence of the distributions, required by this Agreement, to the CHURCH OF SPIRITUAL TECHNOLOGY, the Trustee shall be entitled to an annual fee not exceeding the sum of [handwritten: $50,000.00]