T&E Litigation Newsletter - 8/19/13August 2013 – Advisories
The month of August began with two noteworthy decisions from the courts:
In Nichols v. Pritzker, Case No. 12-P-1328, 2013 Mass. App. Unpub. LEXIS 828 (August 8, 2013) (Rule 1:28), the Appeals Court affirmed a Superior Court judgment in favor of the plaintiff, who claimed she had an agreement with the decedent and his wife under which, upon their deaths, they were to give “everything” to the plaintiff. The defendant appealed, arguing that the agreement is barred by the Statute of Wills and the Statute of Frauds. The Appeals Court disagreed. “Neither the Statute of Wills, G.L. c. 191, § 1, nor the Statute of Frauds, G.L. c. 259, § 5A, were implicated by the agreement between the plaintiff and [the decedent] and his wife. The plaintiff argued she had an oral contract with [the decedent] and his wife prior to their deaths that governed disposition of their shared property after their deaths, and that agreement does not implicate the Statute of Wills . . . The Statute of Frauds is similarly inapplicable, as the agreement in question was not a will, but a promise to give the plaintiff all of [the decedent’s] and his wife’s property after their deaths.” The Court upheld the jury’s award of more than $1.5 million in damages to the plaintiff for the breach of the promise, but did not give any further explanation on the inapplicability of the Statute of Wills or the Statute of Frauds.
In Kramer v. Chafets, Civil Action No. 2013-876-A (August 2, 2013), the Middlesex Superior Court (Wilkins, J.) denied a motion to dismiss an undue influence claim, and in doing so addressed the level of specificity needed for allegations of undue influence. The Court explained that “not much authority exists” on this question, and adopted a “practical approach” to the particularity requirement of Rule 9(b) applicable to claims of fraud, mutual mistake and undue influence, explaining that the complaint does not have to detail every fact upon which an undue influence claim rests. Here, the complaint contained factual allegations going to the elements of undue influence, and nothing more was required at the pleading stage. “By its nature, undue influence exercised over one party by another generally occurs out of sight and hearing of the disadvantaged third party. To require greater specificity would set up an insuperable barrier to prosecution of undue influence claims. In the circumstances, the complaint contains sufficient particularity as to time, manner and perpetrator to allow the defendant to defend himself.”
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.
Pursuant to IRS Circular 230, please be advised that, this communication is not intended to be, was not written to be and cannot be used by any taxpayer for the purpose of (i) avoiding penalties under U.S. federal tax law or (ii) promoting, marketing or recommending to another taxpayer any transaction or matter addressed herein.
©2013 Goulston & Storrs – A Professional Corporation All Rights Reserved