T&E Litigation Newsletter - 9/11/13September 2013 – Advisories
In three recent decisions, the Appeals Court affirmed a judgment on undue influence grounds in a “classic will contest” with some procedural twists, addressed statute of limitations questions, and restored a beneficiary’s interest in a realty trust.
In Estate of Elizabeth B. Lacey, Case No. 12-P-357, 2013 Mass. App. Unpub. LEXIS 865 (August 29, 2013) (Rule 1:28), the Appeals Court affirmed the judgment in what it described as a “classic will contest.” The beneficiaries of a prior will successfully contested a subsequent will – under which the contestants would receive nothing – as the product of undue influence. The facts are not remarkable, but three aspects of the decision are noteworthy.
First, the proponent of the subsequent will argued on appeal that the trial judge improperly adopted verbatim many of the findings of fact proposed by the contestants. The Court rejected this argument, explaining that although the practice of adopting a party’s proposed findings of fact verbatim has been criticized, it is not fatal if the adopted findings are supported by the evidence. Here, the trial judge did not adopt all of the contestants’ proposed findings (83 out of 225 proposed findings), and provided her own conclusions of law and reasoning, which served as the judge’s “badge of personal analysis.”
Second, in noting that the judgment was not clearly erroneous, the Court pointed to the proponent’s broader scheme of misappropriating the decedent’s assets, including his endorsing and cashing her pensions checks, forging her name on checks after her death, and invoking the privilege against self-incrimination when asked about these checks. “That choice permitted the judge to draw any reasonable adverse inferences in this civil litigation.”
Third, the Court rejected as “meritless” the proponent’s argument that he was deprived of due process by the two-year delay between the trial and the judge’s decision. The proponent had not indicated how he was prejudiced by this delay. Because he possessed no lawful interest in the estate, “he therefore suffered no deprivation of any kind, let alone a deprivation of a due process interest.”
In Surabian v. Billings, Case No. 12-P-1287, 2013 Mass. App. Unpub. LEXIS 870 (August 29, 2013) (Rule 1:28), the Appeals Court reversed the allowance of a motion to dismiss the plaintiff’s claim against the defendants for conversion on statute of limitations grounds. The complaint was filed three years and forty days after the plaintiff’s daughter’s death, who apparently – the facts recited in the decision are sparse – was in possession of the plaintiff’s property at her death.
The Court explained that a three-year limitations period applies to the conversion claim against the defendants in their individual capacities, that the claim would have accrued when the defendants refused the plaintiff’s demand for the property, and that the plaintiff had pled sufficient facts, which are assumed to be true on a motion to dismiss, that the claim did not accrue – i.e., that the defendants did not refuse to return the property – until the date the complaint was actually filed. At the very least, “nothing in the complaint asserts with sufficient clarity that any cause of action for conversion had accrued on the date of the daughter’s death.”
The Court affirmed the trial judge’s dismissal of the plaintiff’s claim for conversion against one of the defendants in her capacity as administrator of the daughter’s estate because the claim was not brought within the applicable one-year limitations period. The Court also seemed to suggest, however, that the claim against the administrator was not yet ripe because the administrator had not listed the property as part of the daughter’s estate in the voluntary administration statement, and that, if this property were later claimed to be part of the estate, then the statute of limitations would be no bar and the plaintiff could amend his complaint on remand or assert a new action against the administrator.
In Stevens v. Stevens, Case No. 12-P-773, 2013 Mass. App. Unpub. LEXIS 883 (September 3, 2013) (Rule 1:28), the Appeals Court affirmed a judgment for the plaintiff Christopher against his brother David and mother Esther on Christopher’s claim for wrongful deprivation of his share of a family trust, awarding him damages in the amount of $918,546. Esther established the trust in July 1983 to hold certain property in Marshfield, naming herself as trustee and executing a schedule of beneficiaries giving Christopher and David equal interests of 50% each. The terms of the trust prohibited any change in the beneficial interests without Christopher’s and David’s authorization.
In 1984, David asked Esther to change the beneficial interests such that he would be given a 51% interest and Christopher a 49% interest. Esther rejected this change, crossing out the percentages proposed on the new schedule and writing 50% next each son’s name. Esther then signed this schedule as trustee as of July 10, 1983, the date when she established the trust. Some years later, however, Esther conveyed the Marshfield property to herself and David as tenants in common, without informing Christopher, and when Christopher eventually learned of this conveyance, he was assured by Esther and David that they would make things “right.” They subsequently acted on this promise by making equal distributions to Christopher, but when the property was later sold to a third party, Esther and David denied that Christopher held any interest.
After a lengthy bench trial, the judge found that the schedule Esther signed as of July 10, 1983 (where she crossed out David’s proposed change in percentage interests and wrote 50% next to each son’s name) was controlling, even though no original schedule could be found. In affirming the judgment, the Appeals Court upheld the trial judge’s validation of this document as a copy of the controlling schedule and rejection of another document showing Esther and David as the sole beneficiaries. The Appeals Court also rejected Esther and David’s argument that Christopher’s claims were barred by the statute of limitations, because Christopher’s promissory estoppel claim was brought within six years of Esther and David’s promise to honor and restore Christopher’s 50% interest in the trust, and Christopher had reasonably relied on this promise, which Esther and David actually fulfilled for some time before finally reneging.
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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