In Redding v. Proulx, Case No. 09-P-722, 2010 Mass. App. Unpub. LEXIS 580 (June 1, 2010), a decision issued pursuant to Rule 1:28, the Appeals Court addressed the shifting of the burden of proof in an undue influence action. The decedent's grandson claimed that the granddaughter had unduly influenced the decedent to amend her will for the granddaughter's benefit and to transfer certain bank accounts during her lifetime to the granddaughter. The grandson argued that because the granddaughter was the decedent's attorney-in-fact, the burden should have shifted to the granddaughter to disprove undue influence. The Court disagreed, holding that the burden does not shift where the fiduciary does not play a role in the principal's generosity toward the fiduciary. Here, the evidence showed that although the granddaughter was the decedent's fiduciary, and although the decedent changed her will and transferred bank accounts for the granddaughter's benefit, the granddaughter played no role in these decisions.In Davis v. Davis, Case No. 09-P-1356, 2010 Mass. App. Unpub. LEXIS 596, another decision issued pursuant to Rule 1:28, the trustee of a realty trust sought instruction and a declaration allowing her to terminate the trust and distribute its assets to the beneficiaries, arguing that continuation of the trust would be uneconomical due to the cost of maintaining the property. Four of the five beneficiaries supported termination and distribution. The fifth beneficiary counterclaimed that, among other things, the trustee deliberately spent down the trust by commencing the action and paying associated legal fees from the trust account. The Court affirmed the lower court's grant of summary judgment for the trustee, holding that the judge had not abused her discretion under G.L. 203, § 25 in ruling that continuation of the trust would be uneconomical. Moreover, the trustee was well within her rights in seeking instruction from the court, given the lack of unanimity among the beneficiaries. As the Court explained, "faced with the lack of unanimity of the beneficiaries and the depletion of funds to maintain the property, the trustee more likely would have breached her duties had she failed to seek instruction from the court."
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.