T&E Litigation Newsletter - 7/2/13

July 2013Advisories

Two recent decisions by the Appeals Court are especially worth noting this week:

In Matter of the Estate of Sharis, Case No. 12-P-693, 2013 Mass. App. LEXIS 113 (June 28, 2013), the Appeals Court affirmed the disallowance of a will on grounds of lack of testamentary capacity and undue influence. The burden of proof had been shifted to the decedent’s fiduciary (one of her grandchildren) who benefitted under the will, and the Court held that he had failed to meet this burden. In doing so, the Court rejected the fiduciary’s argument that the decedent had the advice of independent legal counsel, which would have been a fact militating against undue influence as a matter of law. The Court explained that “[o]ne of the functions of independent counsel is to provide documentation that the making and execution of a will is voluntary and knowing, thus lending transparency and credibility to the bequest.” Here, this function was not served. The decedent never met the attorney and spoke with him only twice by phone, briefly. Moreover, the attorney’s associate who actually drafted the will never spoke with the decedent, instead communicating by e-mail with the fiduciary, and neither the attorney nor the associate reviewed the terms of the will with the decedent, leaving that task to the fiduciary.

In Alford v. Thibault, Case No. 12-P-1184, 2013 Mass. App. LEXIS 110 (June 27, 2013), the Appeals Court addressed the question of whether a life tenant with a power of sale owes a fiduciary duty to his co-remainderman with respect to the sale. The defendant was the life tenant of a condominium, and the will pursuant to which he was given the life tenancy provided that he had the power to sell the condo in his absolute discretion, for such price and upon such terms as he deems advisable. The plaintiff co-remainderman claimed that the defendant had breached his fiduciary duty by selling the condo for less than full value. The trial court rejected this claim after trial, observing that there is no case law in Massachusetts holding that a life tenant, even one with a power of sale, owes a fiduciary duty to remaindermen. The Appeal Court affirmed, concluding that the defendant was required merely to comply with the terms of the will and act in good faith. Though the trial court had found that the sale price of the condo, which was $70,000 below fair market value, “certainly raises an eyebrow,” the sale price alone was not sufficient to demonstrate bad faith because the defendant was under significant pressure to sell. That this pressure resulted from the defendant’s allowing the condo to fall into disrepair and failing to pay real estate taxes and other costs, causing the condo to be subject to a tax taking, seemed not to matter.   

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.

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