In Howes v. Riordan, Case No. 11-P-596, 2012 Mass. App. Unpub. LEXIS 220 (Feb. 28, 2012), a decision issued pursuant to Rule 1:28, the Appeals Court affirmed the allowance of a motion to strike an affidavit of objections.
The decedent executed a last will on February 26, 2008, leaving a tea cart to her daughter Judith and the residue of her estate to her sons John and James. The decedent died on June 12, 2010, following which James filed the will for probate and Judith filed an affidavit of objections. In response to the affidavit of objections, John and James filed a motion to strike or alternatively for summary judgment. In opposition, Judith's counsel filed an affidavit asserting that he could not adequately defend the summary judgment motion without additional discovery.
The probate court granted the motion to strike, and the Appeals Court affirmed, rejecting Judith's argument that it was procedurally improper for John and James to combine their motion to strike with a motion for summary judgment. The Appeals Court also rejected Judith's substantive arguments.
Regarding her claim of lack of testamentary capacity, the Court held that Judith failed to allege sufficient facts supporting her claim. Although the decedent was physically in decline, "Judith simply fails to set forth facts that connect her [the decedent's] physical decline to the elements of testamentary capacity. ... The affidavit is silent as to the [decedent's] communication skills or ability to converse coherently, her level of awareness of her estate, her level of awareness of her children and their relationship with her, her ability to respond appropriately to information, or other indicia of testamentary capacity."
Judith's undue influence claim was rejected for the same reason, i.e., she failed to allege sufficient facts raising a triable claim that the decedent's declining physical health caused her to be susceptible to undue influence.
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.