In the much-anticipated decision in In the Matter of the Estate of Bartley J. King, SJC-10404, 2010 Mass. LEXIS 16 (Jan. 27, 2010), the SJC answered three questions relating to an award of legal fees and costs to the prevailing petitioner in a will contest pursuant to G.L. c. 215, § 45. In a nutshell, a number of family members challenged the changes to the decedent's estate plan on capacity and undue influence grounds. The value of the decedent's estate was roughly $1.2 million. The petitioner incurred fees and costs totaling more than $806,000, and the contestants were ordered to pay nearly $575,000 of these fees and costs.
First, the Court held that awards of fees and costs pursuant to G.L. c. 215, § 45, unlike awards of fees and costs pursuant to G.L. c. 231,§ 6F, are not limited to cases involving bad faith or wrongful litigation conduct. The Court noted that § 45 is a special departure in matters involving wills, estates and trusts from the American rule that each party is responsible for his or her own fees and costs. The Court emphasized, however, that fees and costs are not to be awarded under § 45 as a matter of course. Instead, although an award under § 45 need not be based on a finding of bad faith, it must be grounded in equity and as such this broad standard is subject to the probate court's discretion.
Second, the Court held that a hearing on an award that shifts fees and costs pursuant to § 45 is necessary. An "evidentiary" hearing may not be required, particularly where the award of fees and costs is being considered by the same judge who presided over the trial, but the judge who awarded the fees and costs in this case was not the trial judge. Therefore, the Court remanded the case for an evidentiary hearing on whether fees and costs should be awarded.
Third, the Court discussed whether the record supported the amount of the fees and costs that had been awarded. Without commenting specifically on what an appropriate award of fees and costs might have been, the Court suggested that the fees submitted by the petitioner were excessive and held that the probate court erred in its approach. As the Court explained, the judge must consider the well-settled factors outlined in the decision (e.g., the ability and reputation of the attorney; the demand for the attorney's services by others; the amount and importance of the matter involved; the time spent; the prices usually charged for similar services by other attorneys in the same neighborhood; the amount of money or the value of the property affected by the controversy; the results secured) and undertake a more specific and searching analysis of the actual requests for fees and costs than apparently took place, keeping in mind the need to examine the requests through a conservative lens. On this last point, the Court reiterated that "conservative principles" are to govern where the fees and costs being awarded are to be paid by the opposing party.
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Clifford Nichols wrote an article, "When Addressing Cybersecurity and Data Breach, Don't Forget eDiscovery," for New Jersey Law Journal. The article is about how companies should consider eDiscovery and litigation response issues when making policy or infrastructure changes to address cybersecurity and data breach risks.
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Rick Sanders is quoted in an article, "Business Groups Encouraged by Legislators," in NJBIZ, which addresses political activity behind a bill to phase out New Jersey's estate tax. Under the bipartisan bill, the estate tax, which currently applies to inheritances valued at $675,000 or more, would be eliminated gradually over a five-year period. "It affects such a small part of the population," Sanders said. "It just strikes me as unusual that all of a sudden, this bill came. I think it's not coincidental that the governor was campaigning for president at the time he called for the repeal. For years and years, there's been proposals to increase the exemption to $1 million and it never got any traction in New Jersey."
Boston, Mass., January 20, 2016 – Day Pitney is pleased to announce Jillian Hirsch, a partner in Day Pitney’s Litigation Practice, has been selected as one of Massachusetts Lawyers Weekly’s 2015 Lawyers of the Year. Honorees were nominated by their colleagues, clients and other legal professionals for their outstanding professional accomplishments.
Boston, Mass. November 11, 2015 – Day Pitney is pleased to announce Leiha Macauley, a partner in Day Pitney’s Individual Clients Practice, has been selected as a 2015 Boston Rising Star by The National Law Journal.
Jillian Hirsch was quoted in an article, "Trust divisible in divorce despite possible new beneficiaries," in Massachusetts Lawyers Weekly. In the article, Hirsch, who represented the wife in the matter, explains why the Appeals Court's decision of Pfannenstiehl v. Pfannenstiehl is significant.
"It confirmed that an interest in a trust with an ascertainable standard--specifically one with a history of distributions woven into the fabric of the marriage--is a vested, presently enforceable interest and therefore properly included in a marital estate for purposes of equitable division of property in a divorce," she said.