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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.

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