February 27th, 2013

Whether a testator had the requisite capacity to execute a will is often the subject of lay testimony.  We’ve frequently talked here about how important the testimony of the drafting attorney, the attesting witnesses, and the notary are in undue influence or lack of testamentary capacity cases.  But, sometimes it may be worth getting an expert to testify in these cases especially when there may be some complex capacity issues.  If you get an expert, however, there’s still the issue of qualifying him or her.

And, even if you have an expert, here’s another reminder of how important the drafting attorney and witnesses to the will are.  In Fowler v. Kulhowvick (Rule 1:28 decision), a Massachusetts probate court actually rejected the expert testimony of a psychologist who failed to interview the drafting attorney and witnesses before offering an opinion on the testator’s testamentary capacity. (more…)

October 19th, 2012

There aren’t a lot of cases out there dealing with reformation of trusts.  Many jurisdictions allow for reformation to conform with the settlor’s intent.  But settlors are usually understood to have meant what they said in the text of the trust instrument.  So what qualifies as an event worthy of trust reformation?

In Rockland Trust Company v. Attorney General, the Appeals Court of Massachusetts showed us one circumstance under Massachusetts law that would allow reformation of a trust:  avoiding adverse tax consequences, but with a caveat . . . . (more…)

August 29th, 2012

We’ve recently looked at the inheritance rights of children adopted out of families, now let’s look at the inheritance rights of children adopted into families.

Big news out of Massachusetts this week, as the Supreme Judicial Court ruled in Bird Anderson v. BNY Mellon, N.A. that a Massachusetts law that had significant implications for trusts and estates planners, fiduciaries, and especially adopted children was unconstitutional as applied to the trust case before it.

Let’s take a look at the law. (more…)

July 9th, 2012

Most grantors understand that their trustee shouldn’t have a court looking over its shoulder every time it exercises a discretionary power.  That’s why trustees are granted discretionary powers.

Despite a grantor’s broad grant of authority to a trustee, however, trustees often find themselves embroiled in litigation over the exercise of a discretionary power, particularly with respect to discretionary distributions.

In Thompson v. Anthony (unpublished), in the context of an unjust enrichment claim, the Appeals Court of Massachusetts considered the implication of a trust provision giving the trustees “absolute discretion” over distributions. (more…)

May 9th, 2012

Estate beneficiaries’ happiness is inversely proportional to the amount of money spent by an administrator for professional help.  That’s why we see a lot of disputes not over the hiring of a professional, but over the appropriateness of the total amount paid to a professional hired to help settle an estate, such as an attorney or accountant.

In Murphy v. Prescott (unpublished), the Appeals Court of Massachusetts weighed in on a group of heirs’ claims that certain fees paid to the administrator, an attorney, and an accountant in connection with settling an estate were unreasonable.   The appellate court also gave some helpful advice to attorneys about those pesky time sheets. (more…)

December 14th, 2011

In a number of jurisdictions, there may be a presumption or inference of undue influence when a testator gives all or part of his or her estate to a person who is not the “natural object of the decedent’s bounty.”

In other words, a son or daughter is usually considered the natural object of a testator’s bounty so that the testator can give all of his or her estate to one child to the exclusion of the others without creating a presumption of undue influence on that basis alone.  Conversely, if a testator gives all of his or her estate to a friend or ‘stranger’ to the exclusion of his or her children, then that friend is usually not the natural object of the testator’s bounty and that may create a presumption of undue influence.

With that background, that’s why it is unusual that a trial court in Massachusetts recently determined that a testator’s friend and not the testator’s adopted daughter was the natural object of the testator’s bounty.  The Appeals Court of Massachusetts affirmed this part of the trial court’s decision in Purcell v. Landers, but reversed the trial court on failing to require trial testimony of the witnesses who attested to the will.

So, how does a friend become the natural object of a testator’s bounty while a daughter loses that status?  Threaten to set the testator’s house on fire with him in it. (more…)