T&E Litigation Newsletter - 8/19/13

August 2013Advisories

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.

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