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T&E Litigation Newsletter - 6/25/13

June 2013Advisories

The past month has been relatively quiet for reported decisions in this area in Massachusetts, but two decisions by the Appeals Court are worth noting:

In Adler v. Adler, Case No. 10-P-1760, 2013 Mass. App. Unpub. LEXIS 639 (June 7, 2013), a decision issued pursuant to Rule 1:28, the Appeals Court affirmed the invalidation of a will, a restated trust, and related conveyances of real property on grounds of lack of capacity and undue influence. The facts of the case are interesting, but the decision is most noteworthy for its thorough discussion of the state of the law involved in will and trust contests. Specifically, the Court discussed (1) testamentary capacity versus capacity to contract, (2) the presumption of capacity and the shifting burden of proof, (3) the elements of undue influence, (4) the shifting of the burden of proof to a benefitting fiduciary on an undue influence claim, and (5) the standard of review for a will contest versus an equity action. The remedy affirmed by the Court is also noteworthy, in that a prior will was allowed as a matter of equity rather than on an adjudicated petition for its probate. The Court held that this prior will had been admitted into evidence during the trial, reflected the decedent’s true “untainted” wishes, and that the defendant effectively waived his right to contest it.

In Ramsten v. Alfieri, 83 Mass. App. Ct. 1132 (May 17, 2013), another decision issued pursuant to Rule 1:28, the Appeals Court reversed an order that enjoined an executor from improving and subdividing certain real property held in the estate. There was a disagreement about how to maximize the value of the property. The executor believed that he could maximize the value by creating additional buildable lots and marketing them as independent parcels. The plaintiffs, who were some (but not all) of the beneficiaries, disagreed. The probate court granted the plaintiffs' motion for preliminary injunction against the executor. In reversing the issuance of the injunction, the Appeals Court explained as follows: "[The executor's] subdivision plan does not appear to be unreasonable, and we conclude that by allowing the plaintiffs' application for a preliminary injunction, the judge substituted her judgment for that of the executor. Indeed, the judge did not find that the plan constituted a fraudulent, arbitrary, or capricious use of [the executor's] discretionary power as executor. That there may have been an easier course of action in dealing with the lots is beside the point." The Court also noted that the plaintiffs have no entitlement to the property itself – their interest as beneficiaries is in the effective and profitable administration of the estate. If the executor's plan decreases the value of the estate, then they could have an action against him in the final accounting of the estate.

This update was authored by Mark Swirbalus, a Director in the firm's Probate & Fiduciary Litigation group. For questions or additional information on this topic, please contact Mark at [email protected] or contact any member of the Probate & Fiduciary Litigation group.

This newsletter should not be construed as legal advice or legal opinion on any specific facts or circumstances. The contents are intended for general informational purposes only, and you are urged to consult your own lawyer concerning your situation and any specific legal questions you may have.

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