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Probate Law and Litigation

Pierce & Mandell Lawyers Secure Landmark Supreme Judicial Court Victory

Wednesday, October 25, 2017

Pierce and Mandell LawyersBy Robert L. Kirby, Jr. and Thomas E. Kenney

The Massachusetts Supreme Judicial Court (“SJC”) recently issued a landmark ruling in a case of first impression, overturning a probate court judgment against Pierce & Mandell’s clients. Robert L. Kirby, Jr. argued the case before the six-justice panel, and Thomas E. Kenney assisted in preparing the appellate briefs.

The case concerned the efforts by Pierce & Mandell’s clients, personal representatives of their deceased brother’s estate, to secure access to the content of their brother’s email account with Yahoo! Yahoo! refused to provide the email content to the personal representatives asserting, among other defenses, that the federal Stored Communications Act (“SCA”) prohibited it from disclosing the email communications. The Norfolk County Probate Court entered summary judgment in Yahoo!’s favor, ruling that the SCA did prohibit such disclosure.

After Pierce & Mandell filed an appeal on its clients’ behalf, the SJC on its own initiative granted direct appellate review. Following oral argument, the SJC reversed the decision of the Norfolk Probate Court and vacated the judgment entered against Pierce & Mandell’s clients, unanimously holding that the SCA did not prohibit Yahoo! from disclosing the email communications to the personal representatives.

The issue before the SJC was whether any of the statutory exceptions to the SCA’s prohibition of disclosure of the email communications applied. Acknowledging that the issue was one of first impression – no appellate court had previously decided whether the SCA barred disclosure of the decedent’s email communications to estate representatives – the SJC held that the SCA’s exception for disclosure “with the lawful consent of the originator or an addressee or intended recipient” of the electronic communications applied to permit Yahoo! to disclose the contents of the email communications to the personal representatives.

In so holding, the SJC rejected Yahoo!’s argument that “lawful consent” under the SCA must be the actual consent of the user of the email account. The Court reasoned that “interpreting lawful consent in such a manner would preclude personal representatives from accessing a decedent’s stored communications and thereby result in the preemption of State probate and common law.” Because nothing in the statutory language or legislative history of the SCA indicates Congress’ intent to preempt state probate law, and because there is a presumption against preemption in areas of traditional state regulation such as family law, the SJC ruled that the only reasonable interpretation of the “lawful consent” exception is that it permits personal representatives to consent to disclosure on behalf of the decedent in connection with their duties to the probate estate.

The SJC further stated that requiring the actual consent to disclosure of the account user “would significantly curtail the ability of personal representatives to perform their duties under State probate and common law.” Additionally, and “[m]ost significantly, this interpretation would result in the creation of a class of digital assets – stored communications –that could not be marshalled.” Thus, “since e-mail accounts often contain billing and other financial information, which was once readily available in paper form, an inability to access e-mail accounts could interfere with the management of a decedent’s estate.”

As a result of its decision, the SJC remanded the case to the Norfolk County Probate Court for a determination as to whether Yahoo!’s terms of service are binding on the personal representatives and, if so, whether those terms of service would permit Yahoo! to delete the contents of the email account rather than turn it over to the personal representatives.

Pierce & Mandell attorneys Robert L. Kirby, Jr., and Thomas E. Kenney regularly litigate in state and federal courts throughout Massachusetts. They handle a variety of cases including probate court litigation, business disputes and intellectual property matters.

A full copy of the opinion can be found here.

Pierce & Mandell Probate Lawyers Secure Appeals Court Victory In Case Involving Interpretation Of A Will

Thursday, June 22, 2017

Scott Zanolli, Pierce & MandelMichael Fee, Pierce & MandelBy: Michael C. Fee and Scott M. Zanolli

The Massachusetts Appeals Court recently affirmed a decision by Judge Virginia Ward, of the Suffolk County Probate Court, granting summary judgment to Pierce & Mandell’s client in a lawsuit seeking a declaration regarding the interpretation of a will. Michael C. Fee argued the case before the three-justice panel, and Scott M. Zanolli and Curtis B. Dooling assisted in drafting the brief.

The will at issue was prepared on behalf of the testatrix by her long-time companion at a time when she was suffering from terminal illness. The will made specific bequests of personal and real property, but omitted her interest as tenant in common with her brother in the family home. After her death, and her brother’s subsequent death, disputes arose regarding ownership of the real estate, and Pierce & Mandell’s probate litigators took the case to court in Boston.

After Pierce & Mandell secured summary judgment in its client’s favor, opposing counsel sought further review before the Appeals Court. The sole issue on appeal was whether the will’s residuary clause requiring a bequest of “any monies remaining in [testatrix’s] estate,” included by implication her one-half interest in real property. The clause at issue read specifically as follows:

“B. Residuary estate

“I direct that any monies remaining in my estate be given to my partner . . . , and, upon his death, to the . . . Center for the Creative Arts . . . ”

Michael C. Fee argued that the term “monies” in the will was not sufficient to devise real estate, and the Appeals Court agreed. The Court held:

Our case law has also eschewed the broader meaning [of monies] . . .. In our view, the rule of thumb in these circumstances is that “money” should be construed as commonly understood, unless “a reading of the whole will produces a conviction that the testator must necessarily have intended” the broader meaning. Metcalf v. First Parish in Framingham, 128 Mass. 370, 374 (1880). Nothing in the language or context of [the testatrix’s] will supports the broader interpretation.

Moreover, the Court expressly rejected the opposition’s argument that the caption “Residuary estate,” supported a broad interpretation of the word “monies” because, “[a]s English professors and writers, [the testatrix] would have selected a title that described in concise fashion what Article 2B was about.” Specifically, the Court stated:

One might equally expect English professors and writers to be precise in their choice of words, and not to have written “monies” if they meant “anything else.” See Strunk & White, The Elements of Style 21 (4th ed. 2000) (“If those who have studied the art of writing are in accord on any one point, it is on this: the surest way to arouse and hold the reader's attention is by being specific, definite, and concrete”).

Finally, the Court acknowledged that in interpreting wills under Massachusetts law there is generally a presumption against intestacy, and that “’a construction of a will resulting in intestacy is not to be adopted unless plainly required; and it is to be presumed that when a will is made the testator intended a disposition of all [her] property and did not intend to leave an intestate estate.’ Lyman v. Sohier, 266 Mass. 4, 8 (1929).” However, in this instance, nothing in the will’s language and the circumstances surrounding the execution of the will, demonstrated the testatrix’s intent with respect to her interest in the real estate.

Pierce & Mandell attorneys Michael C. Fee and Scott M. Zanolli regularly litigate in Probate Court in Boston, and throughout Massachusetts. Together they handle a variety of probate litigation and trust litigation cases including petitions for formal appointment of a personal representative, petitions for probate of wills, will contests, undue influence cases, contested accountings by personal representatives, trust petitions for allowance of accounts, contested trust accountings, and petitions for removal of trustees.

A full copy of the opinion can be found at Roth v. Newpol, 91 Mass. App. Ct. 609 (2017).

Robert Kirby Argues Privacy Case in the SJC

Friday, March 10, 2017

Pierce & Madell, Boston, MA, Robert L. Kirby, JrBy Robert L. Kirby, Jr.

Ajemian v. Yahoo! Inc.: On March 9, Robert Kirby argued before the Supreme Judicial Court in a case of first impression. The issue before the Court was whether the federal Stored Communications Act, 18 U.S.C. 2701, et seq. bars providers of electronic communication services (in this case, Yahoo!) from divulging the contents of a deceased account holder's account to the personal representatives of the decedent. Read more here.

Supreme Judicial Court Takes Appeal in Case Involving the Stored Communications Act

Tuesday, December 20, 2016

Pierce & Madell, Boston, MA, Robert L. Kirby, JrBy Robert L. Kirby, Jr.

In Ajemian v. Yahoo!, we represent the personal representatives of an estate seeking to gain access to the contents of a decedent’s Yahoo! email account. The Probate Court ruled that the Stored Communications Act, 18 U.S.C. 2701 et. seq., prohibited Yahoo! from divulging the contents of the email account to the personal representatives. We appealed. The Supreme Judicial Court has, sua sponte, transferred the appeal from the Appeals Court. We expect the Supreme Judicial Court to hear the appeal in early 2017.

Pierce & Mandell Probate Litigators Granted Summary Judgment in Will Contest Lawsuit

Thursday, October 08, 2015

Last month Judge Virginia Ward of the Suffolk Probate Court granted summary judgment to Pierce & Mandell litigators Michael C. Fee and Scott M. Zanolli in a lawsuit seeking a declaration of our client’s rights to real property under the terms of a will.  The case involved an unusual scenario where our client’s entitlement to a family home in Boston arose not out of specific language in a will, but rather by virtue of the compete omission of any reference to the real estate in the will, and therefore, as a result, the property passing to him through statutory laws of intestacy.

The will at issue was prepared on behalf of our client’s sister by her long-time companion.  The will made specific bequests of personal and real property, but failed to mention the sister’s one-half interest as tenant in common with our client in the family home.  After her death, and her brother’s subsequent death, disputes arose regarding ownership of the property, and Pierce & Mandell filed a petition, on behalf of the brother’s Personal Representative, to quiet title.  The sister’s companion objected and counterclaimed.  On cross-motions for summary judgment, the Court rejected all arguments that the will could be read more expansively than its plain and unambiguous language would allow.

In our brief and at oral argument, we urged the Court to look no further than the four corners of the will to decide the case.  The Supreme Judicial Court has clearly and repeatedly held that an unambiguous will must be interpreted with reference solely to what is written within it:

Under current Massachusetts law . . . “[i]f a will is not ambiguous, extrinsic evidence to explain its terms is inadmissible . . . even where the language involved has a legal consequence either not likely to have been understood by the testator . . . or contrary to [her or] his intention expressed orally.

Flannery v. McNamara, 432 Mass. 665, 668 (2000) citing Putnam v. Putnam, 366 Mass. 261, 266 (1974).  “Thus, extrinsic evidence of the decedent’s alleged intent is only admissible if [her or] his will is ambiguous.”  Id.  Further, to be relevant, an ambiguity must stem from the will itself as our courts have “flatly rejected the idea that extrinsic evidence may be used to create an ambiguity where the language of the will is otherwise plain and unambiguous.”  Id. at 669.  An ambiguity that permits extrinsic evidence occurs “only where the testamentary language is not clear in its application to the facts. . .”.  Mahoney v. Grainger, 283 Mass. 189, 192 (1933).  The omission of a person or item of property from a will is not an ambiguity, and courts will construe testator’s silence as clear intent not to bequeath the omitted item through the will.

Next, we argued that the Court could not infer that the property passed under the will as part of a residuary estate because the will’s residuary clause identified only specific items of personal property, and the catch-all phrases ‘remainder,’ ‘remaining,’ ‘residue,’ or ‘rest’ were entirely absent.  Therefore, we urged the judge to conclude that the property passed to her brother, her only living heir, pursuant to the Massachusetts laws of intestacy.  Analogous is Boston Safe Deposit and Trust Company v. Schmitt, 349 Mass. 669, 672 (1965), where a testator left detailed instructions regarding the disposition of real property.  When certain contingencies failed to occur, however, the will was silent as to how to devise a certain parcel of real estate.  The court ruled that the estate was intestate as to that property, and stated:

Unless there is to be found in the will not only a manifestation of the testator’s intention that this fund should be disposed of by the will, but also a clear and certain designation of the persons to whom it is to be paid, it must go as undevised property to his heirs at law.

Id. (citation omitted.).  Again, the applicable legal principle is that when a will is silent about the disposition of a particular parcel of real property, it is the law of intestacy, and not conjecture, that determines a rightful heir.  For example, in National Shawmut Bank of Boston v. Zink, 347 Mass. 194, 196 (1964).  In National Shawmut Bank the testator gave his wife a life estate in his home, but his will was silent as to the disposition of the property when she died.  The court held:

This will is silent as to an express disposition of the real estate . . . Furthermore the testator’s intent relative thereto cannot be derived from sufficient declaration in any part or the whole of the instrument.  [citations omitted] We are left to conjecture.  ‘[T]he intent so to be carried into effect must be one which appears from the terms of the instrument and not one founded on a construction based merely upon silence, conjecture or the relationship of the parties.’  [citations omitted] We are of opinion that there was an intestacy as to the disposition of the real estate.


Finally, the Court implicitly rejected the defendant’s contention that a residuary clause bequeathing “moneys” to the sister’s companion should be read broadly to also include the real estate.  As the Supreme Judicial Court observed in Parker v. Iasigi, 138 Mass. 416, 423 (1885), “No case has been found . . .  in which the word “moneys” has been held sufficient to include real estate.”  Over a century later, the principle has retained its vitality.  “Under its ordinary meaning, money does not include corporate stocks, embrace notes, bonds, evidence of debt, or other personal or real estate, and a simple bequest of money usually will not be construed as including the personal estate in general.”  80 Am. Jur.2d Wills § 1088 (2014) (italics supplied).  Most recently, in deciding that the term “funds” in a will did not include real estate, the Supreme Judicial Court opined that “ordinarily [funds] is used to describe an accumulation of money or collection of securities . . .”.  Salter v. Salter, 338 Mass. 391, 393 (1959).  The Salter court ruled that the term “money” obviously did not include real property, and dismissed assertions to the contrary without any discussion.

In Massachusetts, it is assumed that a person who writes a will knows the commonly understood meaning of the words she or he used.  Hershman-Tcherepnin v. Tcherepnin, 452 Mass. 77, 90 (2008) (ruling that“[t]he testator was not an attorney, and so we consider the literal meaning of the words he used”).  Massachusetts law also requires testators to state bequests affirmatively, and scrutiny becomes more rigorous when a will makes affirmative bequests as to some assets, and does not do so as to others.  For example, where the question was whether a testator left his wife only the income from a trust or, in addition, the right to dispose of the trust corpus, the Supreme Judicial Court found that she received only the income because, while the will contained language that affirmatively gave the wife certain benefits, it did not affirmatively give her the right to dispose of the corpus.  Loring v. Clapp, 337 Mass. 53, 67-68 (1958).

Pierce & Mandell litigators routinely prosecute all types of fiduciary and probate litigation, and we are highly experienced in handling matters involving will or trust interpretation, will contests, undue influence challenges, contested accountings, challenges to trustees and trust accountings, determinations of title, petitions to partition, as well as petitions for civil commitments, guardianships and conservatorships.

Recent Appeals Court Decision Highlights the Importance of Effective Estate Planning to Avoid Post-Mortem Litigation

Wednesday, June 03, 2015

By: Scott M. Zanolli

A recent Massachusetts Appeals Court decision highlights the importance of having a comprehensive estate plan in place to govern the distribution of assets after death. It is particularly important to ensure that there is a valid will in place when utilizing a trust to dictate the management and distribution of assets. Should either a will or trust be held invalid, or fail to comport with the applicable provisions of the Massachusetts Uniform Probate Code or the Massachusetts Uniform Trust Code, some or all estate property could be subject to the Commonwealth’s laws of intestacy.

In Lesanto, et al. v. Lesanto, 2015 Mass. App. Unpub. LEXIS 318, prior to his death, the decedent engaged an attorney to revoke a previously drafted trust and will to effectuate the disinheritance of his two adult children. After revoking the original trust instrument and drafting and executing a subsequent trust with new provisions regarding the disinheritance, the testator died before he could execute a will to pour over his assets into the new trust. After trial, a Probate and Family Court judge concluded that the second trust, "was intended to be an instrument in the nature of an amendment to the First Trust established [previously], and thus must be reformed to reflect the [testator’s] actual intent regarding same." Id. at 8. The new trust was therefore reformed rather than amended, and the adult children were effectively disinherited.

The testator’s children appealed, and despite the overwhelming evidence showing that the testator intended to disinherit them, the Massachusetts Appeals Court overturned the Trial Court’s decision. The Appeals Court stated that although intent of the testator is the “lodestar of testamentary construction, it cannot be used . . . to supply a missing clause or permit speculation as to what the [testator] might have intended had [he] foreseen or contemplated events as they actually turned out, but for which [he] had made no provision.” Lesanto at 11, quoting Schena v. Pagliuca, 9 Mass. App. Ct. 449, 452 (1980).

Additionally, the Court stated that in the past it has allowed for reformation of a trust under circumstances involving clear proof that a drafting error caused a trust to fail to conform to a settlor’s intent only in the context of fully completed estate plans. Id. at 12.  In this instance, the dispute arose due to neither a drafting error, nor to a failure on the part of the drafting attorney to understand the applicable law. Id. at 11. Rather, the estate plan did not effectuate the testator’s intent due to the decedent’s failure to execute a new will pouring over his assets into the new trust. Id. at 12. In such an instance, “[r]eformation of a trust instrument is not a remedy for failing to complete an estate plan, and specifically, for failing to execute a will.” Id.

The case demonstrates several important issues. First, courts are increasingly hesitant to intervene posthumously to correct errors in a decedent’s estate plan in a variety of situations. Second, this recent decision may embolden both heirs and devisees to challenge questionably drafted and constructed testamentary instruments through the probate litigation process. Finally, Lesanto highlights the importance of meticulously scrutinizing estate plans prior to execution, and of careful review and analysis of wills and trusts after the death of the testator for invalid provisions.

The attorneys at Pierce & Mandell are highly experienced in all forms of probate and fiduciary administration and dispute resolution. Please feel free to contact us with any questions.

Estate Planning: The Lay of the Land - Boston

Wednesday, November 13, 2013
By: Michael C. Fee

The purpose of estate planning is to identify your personal and financial goals during your lifetime, protect your assets, designate individuals who will act on your behalf in the event that you need assistance, or manage and distribute your assets after your death.


A will provides the tools for distribution of your assets upon your death, designates who will serve as executor, and designates who you nominate as guardian of any minor children or incompetent adults in your care. A will may specify funeral and burial directions, and may include specific gifts of cash individual pieces of jewelry, furniture, and charitable gifts. A will must be executed by following specific requirements set forth by statute. A person who has died without a will or whose will is deemed by the probate court to be invalid is said to have died intestate, and the distribution of assets is mandated by statute.


A trust is an instrument which allows you to transfer ownership of assets to a trustee for your benefit or the benefit of others. A trust provides for the efficient, private distribution of assets by avoiding the public probate process.

There are many varieties of trusts. The following are the three most common types:

A support trust is created to manage and preserve your assets for the benefit of indigent or incompetent or disabled children or adults in your care. This arrangement gives you control of the distribution of the assets in the trust after your death while preserving current or future federal, state and municipal benefits provided for such child or adult.

An irrevocable life insurance trust includes a life insurance policy which is paid at your death to those whom you have designated in the trust instrument. The distributions are exempt from estate taxes because you do not own or have any interest in the life insurance policy.

A living family trust is generally nominally funded during your lifetime and then further funded at your death. The trustees who you appoint will manage the trust for however long you choose in order to carry out your wishes regarding distribution or preservation of your assets.

Power of Attorney

A power of attorney appoints another individual to serve as your agent in the management, control and investment of your personal and business interests during your lifetime.  In essence, a power of attorney empowers another to step in and manage your affairs.

A power of attorney may be general, granting unlimited discretion and power to act to your agent, or limited, meaning the agent’s powers are limited to specific matters. In Massachusetts, a durable power of attorney is commonly used and survives incompetence and, until the agent is aware, the death of the grantee of the power of attorney. A power of attorney may also be revocable or irrevocable based on your choice at the time of creation.

Health Care Proxy

A health care proxy allows you to express your wishes regarding your medical care and gives to another individual the authority to make decisions for you if you are unable to communicate. By designating a health care agent, you nominate a person who will make decisions regarding your medical care, including doctors, procedures, locations of service, and medications. You may give specific directions to your health care agent regarding life-sustaining treatment.


The Massachusetts Homestead Act allows a homeowner to elect to file a homestead estate.  The homestead estate provides, in most cases, an exemption to the homeowner of up to $500,000 against unsecured creditors claims. To be effective, the election must be filed at the registry of deeds in the county in which the property is located.

FAQ’s regarding Estate Planning:
1. I may change my mind about the disposition of my assets in the future. Will I have to create another will each time even if there are only small changes?

A codicil is the document in which minor amendments are made to a will. The codicil can revoke or amend as many gifts or provisions as the testator would like.  If there are major changes to be made, a new will may be appropriate. Another option for the disposition of tangible personal property is to include a provision in the will providing for a memorandum which will express the testator’s wishes for the manner and to whom the Executor is to distribute property. The memorandum can be kept by the testator and changed as often as he or she likes. Such a memo is not admitted to probate and is not binding on the Executor.

2. Do I really need an attorney to write my will?  Can I simply write down my wishes for the disposition of my assets and have someone witness it?

Massachusetts has specific statutory requirements for a will to be deemed valid and admitted to probate. One of these requirements is a will must be witnessed by two individuals who sign in the presence of the testator. If the will is invalid, all of the assets will be disposed of through the laws of intestacy as though there were no will.

3. I have specific desires about my funeral and the disposal of my remains. How can I ensure my wishes are carried out?

In Massachusetts, your wishes for the disposal of your remains govern. Otherwise, if you have a surviving spouse, he or she has the right to make the decisions; if not, then your next of kin decides. You can express your wishes by entering a contract with a funeral home which allows for a prepayment, expressing your wishes in your will or by expressing your desires.
4. I am still relatively young and healthy. When do I really need to start thinking about these documents?
It can be very difficult for some people to think about the possibility that they would need a health care proxy or a power of attorney, and even more difficult to think about a will. However, it is important to plan for your sake and the sake of your family. Even if you are young or do not have the assets you will later accumulate, you can make changes to your estate plan throughout your life.

Pierce & Mandell Lawyers Score Appeals Court Victory Over Yahoo!

Wednesday, May 29, 2013

Bob Kirby and Tom Kenney recently achieved a major victory before the Massachusetts Appeals Court in a case concerning the ownership of a decedent’s email content.  Our clients were the duly appointed administrators of the estate of their late brother and had requested access to his Yahoo! email account in connection with their efforts to marshal estate assets.  When Yahoo! refused, Pierce & Mandell filed suit in Norfolk Probate Court seeking an Order requiring Yahoo! to provide access to the email account.  The Probate Court dismissed the lawsuit, finding that Yahoo!’s on-line terms and conditions required that suit be brought in California, and that a prior consent judgment between the parties barred further litigation under principles of res judicata.  

However, after extensive briefing and argument before a three-judge panel, the Massachusetts Appeals Court disagreed and vacated the Probate Court’s dismissal of the complaint.  The Appeals Court held that the forum selection clause in Yahoo!’s on-line terms and conditions was not enforceable absent evidence that the decedent received proper notice of the terms and provided Yahoo! with meaningful assent.  

The Appeals Court also ruled that the prior consent judgment was the result of the parties’ agreement to settle one issue in dispute and leave the larger issue – ownership of the email content – for later resolution.  As a result, the Appeals Court ruled that it would contradict the intent of the parties’ agreement, as well as frustrate the purposes of settlements generally, to permit a consent judgment on one issue to bar the parties from seeking judicial determination of other disputes.

The Appeals Court remanded the case to the Probate Court for a determination of whether the email content is an asset of the estate.  

Click here to read the May 16, 2013 Lawyers Weekly Article concerning the Appeals Court ruling.

“Undue Influence” and Shifting Burdens of Proof in Massachusetts Probate Court

Wednesday, January 23, 2013
By Michael C. Fee

Those dissatisfied with the testamentary provisions of a decedent’s will or trust can usually challenge the instrument by bringing a will contest proceeding in the Probate Court.  While the recent enactment of the Massachusetts Uniform Probate Code streamlines procedures to a certain extent, the substantive law of will contests remains unchanged.  There are several well-established rationales to challenge a will, including the decedent’s lack of capacity or lack of knowledge regarding the will’s contents, the absence of certain statutory formalities in the will itself, and even fraud.  The most common legal argument asserted in will contests, however, is that the decedent was subjected to undue influence.

“Undue influence” is generally described as a set of facts or circumstances that “destroy free agency.”  Undue influence sways the testator’s free will so that he or she acts contrary to his or her own wishes.  Bruno v. Bruno, 10 Mass. App. Court 918 (1980).  Naturally, the facts that give rise to claims of undue influence take all shapes and forms, and it is not my intention to explore the breadth of undue influence law in detail, but rather to focus on what a litigant needs to prove in order to successfully prosecute or defend a will contest action based on undue influence in Massachusetts.

The specific elements that must be proven in order to establish undue influence are “that an (1) unnatural disposition has been made (2) by a person susceptible to undue influence to the advantage of someone (3) with an opportunity to exercise undue influence and (4) who in fact has used that opportunity to procure the contested disposition through improper means.”  O’Rourke v. Hunter, 446 Mass. 814, 828 (2006), quoting from Tetrault v. Mahoney, et al., 425 Mass. 456, 464 (1997).  Mere suspicion, surmise or conjecture are not enough to warrant a finding of undue influence.  There must be a solid foundation of established facts upon which to rest an inference of its existence.”  O’Rourke, 446 Mass. at 828, quoting Neill v. Brackett, 234 Mass. 367, 370 (1920).

In general, a party challenging a will or other document on the ground that it was procured through fraud or undue influence bears the burden of proving the allegation by a preponderance of the evidence.  Cleary v. Cleary, 427 Mass. 286, 290 (1998), citing Taricone v. Cummings, 340 Mass. 758, 762 (1960), Mirick v. Phelps, 297 Mass. 250, 252 (1937) and Hogan v. Whittemore, 297 Mass. 573, 578 (1932).  In other words, the burden of proof lies with the plaintiff to establish that the defendant overcame the will of the grantor. Tetrault v. Mahoney, et al., 425 Mass. 456, 464 (1997), citing Corrigan v. O’Brien, 353 Mass. 241, 350 (1967).  

The burden shifts, however, when a fiduciary benefits from a transaction with his principal.  Cleary, 427 Mass at 290.  The rationale for burden shifting where a conveyance is made to one occupying a fiduciary relationship to the testator is grounded in the presumption that the transaction was executed by virtue of the relationship, “. . . and the burden . . . is placed upon the grantee to prove that the transaction was fair and just to the grantor and was not procured through fraud or undue influence.”  Smith v. Smith, 222 Mass. 102, 106 (1915).  

A critical threshold requirement in burden shifting is the fiduciary’s actual participation in the challenged transaction.  In Rempelakis v. Russell, 65 Mass. App. Ct. 557, 563 (2006), the Appeals Court squarely addressed the issue of whether Cleary’s burden shifting rule “. . . applies in any instance in which a fiduciary benefits from action by his principal, or . . . only where the fiduciary actually participates in a transaction with his principal from which the fiduciary benefits.”  In Rempelakis, the Court concluded

“. . . the burden of proving the absence of undue influence shifts to the fiduciary only where he has actually taken part in the questioned transaction.”  Id. (italics in original).  In cases where the burden of proof does shift to the fiduciary/grantee, it is generally met if the fiduciary shows that his principal made the bequest with full knowledge and intent, or with the advice of independent legal counsel.  Cleary, 427 Mass. at 291, citing Pollock v. Marshall, 391 Mass. 543, 557 (1984).

These subtle distinctions are often litigated.  In Cleary v. Cleary, the defendant [his aunt’s] insurance agent and attorney-in-fact, assisted her in designating himself as the beneficiary of certain annuity policies.  427 Mass. at 286.  Defendant claimed that his aunt asked him to obtain forms so that she could designate him the sole beneficiary of the policies.  He then brought the forms to the nursing home and explained to her that they would extend the maturity date on the policies while also naming him as the sole beneficiary.  Id. at 288.  The aunt signed the forms and the defendant filed them with the insurer.  In concluding that defendant had the burden of establishing that he had not exerted undue influence on his aunt in connection with the change of beneficiary, the Cleary court referred specifically to the “transaction” between the fiduciary and the principal, and concluded by stating: “We now hold that the fiduciary who benefits in a transaction with the person for whom he is a fiduciary bears the burden of establishing that the transaction did not violate his obligations.”  Id. at 295.

In Rempelakis v. Russell, 65 Mass. App. Ct. 557 (2006), the contestant to a will argued that the trial judge improperly allocated the burden of proof on the issue of undue influence to the contestant, notwithstanding the fact that a fiduciary relationship existed between the beneficiary and the testatrix at the time the challenged documents were executed.  Rempelakis, 65 Mass. App. Ct. at 558.  In affirming the trial court’s decision that the burden should not shift to the fiduciary, the Appeals Court held “that the burden of proving the absence of undue influence shifts to the fiduciary only where he has actually taken part in the questioned transaction.”  Id. at 563.  In Rempelakis, the Court found that the fiduciary had not taken part in the challenged transaction because “he did nothing to influence the decedent’s decision or to prepare the implementing documents.”  Id. at 564.

In construing the parameters of a burden shifting rule, the Rempelakis Court analyzed the Cleary ruling at length and observed as follows:

We are not prepared to assume that the Supreme Judicial Court casually included multiple references to "transactions" between fiduciary and principal, the rendering of assistance by the fiduciary in connection with the event from which he benefits, or the "bargaining" between fiduciary and principal in a matter of advantage to the fiduciary, without intending that the references have some meaning.  We grant that the Cleary case involved a transaction between fiduciary and principal.  But the ease with which the court could, if it wished, have stated a general principle that any fiduciary who benefits from any act of his principal in any circumstances has the burden of justifying the action suggests that its failure to do so was purposeful, and that it intended to limit the occasions on which a shift in the normal burden of the contestant to prove undue influence takes place.

Id. at 571 (footnote omitted) (emphasis in original).  

The Rempelakis went further in clarifying a principle that for many may seem like common sense:

Our reading of Cleary is influenced not only by the language of that opinion, but by considerations of policy as well. Fiduciaries are often relatives or friends of the principal, and thus frequently are natural objects of the principal's bounty. Indeed, it is the principal's feelings for the fiduciary that many times result both in the choice of that individual to perform fiduciary functions and the desire to reward the fiduciary in some manner. We think it a peculiar proposition that this natural state of affairs should be presumed in all instances to be the product of sinister behavior on the part of the fiduciary unless he proves otherwise. It is one thing to require such proof where the fiduciary himself brings about the benefit, even where the fiduciary is a relative or close friend of the principal.  See Cleary, 427 Mass. at 292-293.  It is something else entirely to require it (and accordingly to require the fiduciary to prove a negative) where the fiduciary benefits from the principal's generosity without any role in the decision.

Rempelakis at 567.

The lessons learned from these cases are that proof of undue influence requires facts, not speculation, and the burden will be on the person challenging the will to prove undue influence.  However, when the evidence shows that a beneficiary affirmatively engaged in acts leading to the change or modification of a will to his or her benefit, courts may shift the burden to that individual to prove that such actions were free from improper influence.  

If you have questions about probate laws, undue influence, will contests, or proceedings in the Massachusetts Probate Court, contact the Pierce & Mandell’s Probate and Fiduciary Litigation team.

Massachusetts Adopts Uniform Trust Code

Tuesday, December 18, 2012

The Massachusetts Uniform Trust Code ("MUTC") was recently signed into law and applies to all trusts in existence before, on, or after its effective date, with a few provisions that apply prospectively only.

The MUTC clarifies and, in some cases expands, the rights of trust beneficiaries, gives trustees more flexibility in administering trusts, and reduces the need for court supervision over and intervention in trust matters. Anyone serving as a trustee of a Massachusetts trust or who is a beneficiary of such a trust should contact us if they have any questions about the impact of the MUTC on a particular trust.

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