In Whittenberger v. Whittenberger, Case No. 09-P-714, 2010 Mass. App. Unpub. LEXIS 437 (Apr. 26, 2010), a decision issued pursuant to Rule 1:28, the Appeals Court addressed the enforceability and effect of a disinheritance clause.
Parents were the settlors of a trust ("Trust 1"), which provided that upon the death of either settlor, the trustee was to divide the trust property into three subtrusts. Although the surviving settlor could amend or revoke two of the subtrusts, he or she would have no right to amend or revoke the third subtrust.
After the mother's death, the father executed a second trust ("Trust 2") which purported to revoke Trust 1. Then, after the father's death, one of his children, Thomas, in his capacity as trustee of Trust 1, filed an equity action seeking a declaratory judgment that Trust 1 controlled the disposition of the father's trust and estate assets, and that Trust 2 was null and void as a matter of law. The defendants filed a motion for summary judgment arguing that Trust 2 was valid and controlled the disposition of the trust and estate assets, and that the disinheritance clause in the father's will precluded Thomas from filing the declaratory judgment action. The disinheritance clause provided for the disinheritance of any person who "(a) attempt[s] to oppose or set aside the probate of this will or any codicil hereto or to impair or invalidate any of the provisions thereof in any legal proceeding..., or (b) attempt[s] to set aside said Trust or any amendment thereto or to impair or invalidate any of the provisions thereof in any legal proceeding..., or (c) brings any legal proceeding against any major beneficiary under my will or trust."
The probate court held that the language of Trust 1 expressly prohibited the father from completely revoking Trust 1, and thus Trust 2 had no effect on two of the three subtrusts created under Trust 1. The third subtrust created under Trust 1, however, which was subject to amendment or revocation, had indeed been revoked by Trust 2. The probate court found it unnecessary to discuss the issue of the inheritance clause, implicitly ruling that Thomas had standing to file the declaratory judgment action.
The Appeals Court affirmed. Regarding the disinheritance clause, the Court held that Thomas's filing of the declaratory judgment action did not trigger the disinheritance clause, and that the disinheritance clause did not deprive Thomas of standing to file the declaratory judgment action. On this second point, the Court explained that a disinheritance clause does not prevent a contest by a beneficiary, but merely results in disinheritance if the contest is unsuccessful. Moreover, even if Thomas were deemed to have forfeited his individual beneficial interest, he would continue to have standing to pursue the declaratory judgment in his capacity as trustee of Trust 1.
Day Pitney Partner Angela Titus McEwan authored an article, "The UTC and the Duty to Inform and Report," published in Trusts & Estates.
Keith Bradoc Gallant and Rebecca Iannantuoni authored an article, "When a Client Lacks Legal Competency, Who Files for the Divorce?," for Family Advocate, a publication of the American Bar Association Section on Family Law.
Day Pitney Newsletter
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.
Day Pitney Press Release
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.