Pierce & Mandell, P.C.

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Boston, Massachusetts 02108-3002

Phone: (617) 720-2444
Fax: (617) 720-3693

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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.

“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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