In Germain v. Girard, Case No. 09-P-1710, 2010 Mass. App. Unpub. LEXIS 1167 (Oct. 28, 2010), a decision issued pursuant to Rule 1:28, the Appeals Court addressed an award of legal fees pursuant to G.L. c. 215, § 39A.
This is the second decision issued by the Appeals Court in this case. The first decision, which I reported on two years ago, concerned the probate court's approval and allowance of a will that was executed by the decedent in 2004, shortly before his death. The probate court had rejected a claim that the will was the product of undue influence. The Appeals Court reversed this ruling and remanded the case to the probate court with instructions that the burden of proof on the undue influence claim should have been shifted to the petitioner, who is the decedent's stepdaughter, because her husband stood in a fiduciary relationship with the decedent and indirectly benefited from the will.
After a bench trial on remand, the probate court ruled that the stepdaughter had met her burden of proving that her husband had not unduly influenced the decedent. The Appeals Court affirmed.
The Appeals Court also affirmed the probate court's allowance of the stepdaughter's motion for legal fees pursuant to G.L. c. 215, § 39A. Section 39A authorizes the probate court to award an attorney compensation and reimbursement for legal services upon a showing that the services "conferred a benefit upon the estate, and 'benefit conferred' means assistance in 'creating, preserving, or increasing the estate.'" Because the work of the stepdaughter's lawyer preserved the decedent's will, the Court held that a benefit was conferred on the estate and that the lawyer was entitled to compensation under the statute.
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.
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.
Stamford, Conn., August 24, 2015 - Day Pitney is pleased to announce that 68 attorneys have been selected for inclusion in the 2016 Best Lawyers in America. Best Lawyers ranks lawyers through peer-review surveys, and has been published annually since 1983.