In Shepard v. Barrell, Case No. 09-P-1658, 2010 Mass. App. Unpub. LEXIS 1146 (Oct. 22, 2010), a decision issued pursuant to Rule 1:28, the Appeals Court affirmed the denial of a motion for summary judgment seeking the partial termination of certain trusts.
The settlors established six trusts between 1923 and 1931. The trusts provide that one half of the principal is to be held for the benefit of the settlors' daughter and her descendants, and the other half for the benefit of the settlors' son and his descendants. The trusts are to terminate twenty years after the death of the last of the named beneficiaries, and upon termination the principal vests and is to be distributed to the settlors' then-living issue.
One of the settlors' great-grandchildren ("Shepard") and his daughters filed an equity action for the termination and distribution of what they claimed was Shepard's twelve percent interest in the principal. The plaintiffs argued that termination was proper because (1) the trusts have no remaining purpose, (2) Shepard's interest vested, (3) his interest is severable from the other interests, (4) all of the beneficiaries consented to termination of Shepard's portion of the trusts, and (5) if Shepard's portion were not terminated in 2010, there is a risk that his share of the principal would be subject to the federal GST tax.
Although the court acknowledged that it has the discretion to order early termination of a trust "where all of its objects and purposes have been accomplished, where the interests under it have all vested, and where all parties beneficially interested desire its termination[,]" the court denied the plaintiffs' request for early termination, holding as follows.
First, the purpose of the trusts, to provide financial support and long-term financial stability for the settlors' descendants, as evidenced by the structure of the trusts and the inclusion of spendthrift provisions, would be ongoing until the stated time for termination.
Second, the settlors did not intend to create severable beneficial interests in the trusts. Rather, the trusts provide the opposite, expressly prohibiting the division of the principal into separate shares.
Third, Shepard's interest had not vested because the trusts are not to terminate until twenty years after the death of the last named beneficiary, and several named beneficiaries are still alive. Therefore, the termination date remained more than twenty years away.
Fourth, not all of the beneficiaries had consented to early termination. Shepard's argument that he alone needs to consent to the termination of his separate share was unavailing. Moreover, at least three beneficiaries had expressly denied their consent, and consent was not provided on behalf of unborn and unascertained beneficiaries.
Finally, the trusts were exempt from the GST tax because they were irrevocable prior to September 25, 1985, and there had been no disqualifying additions to the trusts since that date. On this point, the court noted that appreciation in the value of a trust and undistributed income added to the trust are not considered additions to the principal for GST purposes.
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.
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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.