Probate Appellate Half-Time: Where Have We Been, Where Are We Going? By Joseph N. Schneiderman, Esq.
The 2020-2021 appellate court year in Massachusetts has been a busy one in the realm of probate law. Since the court year runs from September to June (by and large), Christmas and the new calendar year are a good time to recap what’s happened and what’s coming.
MassHealth Cases in October
October saw two cases raising thorny issues relative to MassHealth benefits. The first was Estate of Kendall v. MassHealth, SJC-12881, which the SJC decided on December 28. -and which is the subject of the previous blogpost.
The second MassHealth related case the SJC heard in October is Guilfoil v. Secretary of the Executive Office of Health and Human Services, SJC-12922. Guilfoil case involves this question: do trust assets count in determining MassHealth eligibility? Guilfoil is the representative of nonagenarian Dorothy Frank’s estate. In 1999, Ms. Frank created a reality trust for property she owned in Fitchburg-she now owns a life estate with her five children as joint tenant remaindermen-Guilfoil is a trustee. In March 2017, Ms. Frank entered a nursing home, and MassHealth denied her application for benefits, holding that the realty trust counted and demonstrated that she had too many assets to be eligible. Guilfoil sought judicial review and the case eventually reached the SJC.
Guilfoil contends that the trust is a nominee trust created solely to hold title to the property in Fitchburg. Because she created a nominee trust, she cannot do anything with it without the consent of all beneficiaries-and it is an irrevocable asset. Thus, MassHealth erred in treating it as an asset, particularly since Ms. Frank only has a life estate.
The Secretary responds that the trust was subject to amendment and contends that federal law on Medicaid eligibility applies to define a trust and its assets. The Secretary further disputes the minimal nature of the Trust as a nominee trust and subject to amendment and was revocable. Since the SJC heard the case in October, a decision is likely due by February under the Court’s internal rules.
Upcoming SJC Cases: Anti-SLAPP Meets Probate: Do Conservators Enjoy Immunity?
Two new probate cases are coming in the January and February SJC sittings.
First, on January 8, the SJC will hear an Impounded Case, SJC-13011 raising this issue: Does the Anti-SLAPP statute apply to probate accounting proceedings? The case is impounded so the papers are not publicly available. But, the SJC has made the three legal questions available.
Some background is in order here. SLAPP stands for strategic lawsuit against public participation-i.e. a lawsuit that is filed for the sake of being filed in retaliation or punishment for a person exercising their right to petition the government. A classic example: a big real estate developer sues a neighbor who’s challenging their development. The Anti-SLAPP statute (G.L. c.231, §59H) is a means to stop one of those lawsuits in its tracks-and, as a recent Boston Bar Journal article details, the Anti-SLAPP statute has spurred much litigation.
Without access to the briefs, it’s difficult to forecast the outcome. However, it seems that an accounting proceeding could certainly be used as a means to harass for petitioning activity-especially since petitioning activity is so broadly defined. Mary Trump’s recent memoir certainly suggests that probate proceedings could become bludgeons. The facts, at least, as laid out in the questions, certainly sound like that what’s going on in this case. Stay tuned.
On February 5, the SJC will hear Hornibrook v. Richard, SJC-13030. The case is an interlocutory appeal from the denial of a conservator’s motion to dismiss a tort complaint alleging breach of fiduciary duty, malpractice, conversion, and fraud. The facts are a tragic picture of familial dysfunction culminating in the appointment of a conservator-who apparently deprived the son (the plaintiff here) of property, sold the mother’s property, never filed accounts, and the mother’s estate had to reimburse Medicaid.
This case distills to whether the conservator was acting as a quasi judicial officer and thus is absolutely immune from that role. The conservator asserts that all of her actions were in the course of her duties because she was, effectively, an arm of the court in managing the decedent’s affairs. The son counters that the MUPC has displaced this rule and in any event she still has fiduciary responsibilities-and conservators and other fiduciaries can be liable for misappropriating assets-as apparently occurred here. Indeed, the conservator was under no specific directive about how to carry out her duties.
Whether the MUPC has displaced this common law rule or modified it is a thorny question. There is something to be said that conservators should not fear frivolous litigation. But…the allegations suggest a disturbing, insidious and deleterious form of waste that defeats the very point of having a conservator. The son should at least get to develop the facts a bit more-he may not not survive summary judgment-but to cut him off here seems dubious absent the most compelling rationale for immunity. Amicus briefs are due in mid January and may follow about the practical and thorny consequences here. This case is also paired with another case on quasi-judicial immunity. See Impounded Case, SJC-13015, on further appellate review of 97 Mass. App. Ct. 343.
Matter of King: Appeals Court Clarifies MUPC Requirements to Prove a Will
In Matter of King, 98 Mass. App. Ct. 332 (2020), the Appeals Court held that a Probate Court judge erroneously deprived a will proponent of the ability to prove the will. John J. King died and his daughter Robin petitioned for intestacy. John King, Jr. objected and petitioned for probate of a will-which committed Robin and the other son, Paul. However, the witnesses to the will had all died. Robin and Paul objected to John Jr.’s proffer of authentic signatures as extrinsic evidence to prove the will-and the Judge barred John Jr. from adding a handwriting expert to trial. The judge dismissed John Jr.’s claim after trial and John Jr. appealed.
The Appeals Court recalled that a valid will needed to be in writing and signed by the testator and two witnesses. The will facially met that standard but because Robin and Paul challenged its validity, an attesting witness needed to testify and they were unavailable due to their death. The issue became whether John, Jr. could offer extrinsic evidence to prove the validity of attestation and execution “by other evidence.” 98 Mass. App. Ct. at 335, citing G.L. c.190B, §3-406(a) (permitting proof of a will “by other evidence.”)
The Appeals Court then held that John, Jr. could prove the will extrinsically, as the MUPC did not displace decisional law that held that the death of an attesting witness did not defeat the validity of the will. Rather, a challenge needed to challenge the facts of attestation. 98 Mass. App. Ct. at 335-336. In this light, John Jr.’s proffer was adequate-he offered multiple exhibits to verify the signatures and attestation-and did not need expert testimony on the nature of signatures on handwriting.
This case is another dealing with when and how and whether the MUPC displaces prior common law. Here, the Appeals Court has harmonized the two successfully and thoughtfully. The ruling is also limited; John, Jr. deserves the opportunity to prove the will and did not need to proffer an expert relative to the nature of handwriting.
Appeals Court Further Clarifies MUPC Objections in Matter of Widdiss
The Appeals Court followed King with Matter of Widdiss, 98 Mass. App. Ct. 808 (2020). Widdis and Galvin lived together on Martha’s Vineyard as a beloved couple although they never married. In 2014, Widdis went to Arizona for cancer treatment and wrote a holographic will by hand leaving a life estate in a house in a home Aquinnah that she could not sell but could pay off a mortgage with life insurance proceeds. Widdis died by that July and Galvin, along with Widdis’s nephew petitioned for an intestacy based probate-she believed the holographic will was invalid. Galvin continued to live there, paid taxes, and maintained the property.
In 2019, the nephew and others then sought to evict Galvin from the home. Galvin brought a new action in the Probate Court to enforce and recognize the holographic will and to confirm her life estate interest. A judge there dismissed the case for failure to state a claim.
The Appeals Court held that Galvin’s claims related to the holographic will could not proceed in light of the 2015 intestacy adjudication but her life estate claims were viable. The Appeals Court recalled that the MUPC established strict and narrow circumstances to reopen a probate proceeding. 98 Mass. App. Ct. at 811-812, citing G.L. c.190B, §3-412. The claims regarding the holographic will fit none of those circumstances; Galvin was aware of the will and she did not seek relief until long after the twelve month limit to reopen estate proceedings. Thus, there was no basis to reopen those proceedings or any salvation in equity especially because equitable powers would collide with the MUPC.
However, the life estate claim was viable because it was a contract claim relating to how Galvin, as personal representative of the estate, could distribute the property under the MUPC. 98 Mass. App. Ct. at 813-814. Although the lease was subject to the Statute of Frauds and required a writing, partial performance by occupying AND maintaining the property could avoid the statute. Id. At 814-815. Thus, Galvin had plausibly well-pled this claim and deserved to adduce evidence to proceed on it.
This decision is a follow up to cases on objections previously discussed in the Boston Bar Journal. Here, Galvin’s failure to follow the strict requirements to reopen the estate was a fatal one that was not salvageable in equity because equity would collide with the MUPC. However, like the objections cases, substance still governs-Galvin’s claim about the life estate would not require reopening the estate and thwarting the purposes of the MUPC to spur the prompt and efficient administration of estates. Galvin thus deserved her day in court.
Conclusion
The 2020-2021 appellate court term has already seen significant developments in the world of probate and new issues and cases are in the pipeline at the SJC.
A common theme of all cases and decisions also offer significant day to day guidance to probate litigation and estate planning attorneys alike. The SJC’s decision that MassHealth is just like any other creditor significantly changes the ballgame for planning and how, when, and whether someone may seek those benefits. Guilfoil will offer guidance on when one becomes eligible for those benefits. The Appeals Court’s MUPC decisions thoughtfully demonstrate what principles have survived the MUPC and what has been displaced. Finally, although perhaps arising on extraordinary facts, the AntiSLAPP case at the SJC will also be important to the day to day because of the broad reach of the AntiSLAPP law. All probate practitioners should continue following the appellate courts into the summer.
Joseph N. Schneiderman, Esq. is an appellate attorney who can be reached at connlawjoe@gmail.com. Joe is arguing in the SJC again on January 6 and thanks Tim for another opportunity to blog and to collaborate on probate developments.