Trusts & Estates Litigation Update: D'Ambrosio v. Milgroom

Tuesday, December 1, 2009 - 00:00

Three decisions issued last week by the Appeals Court pursuant to Rule 1:28 are worth mentioning.

In D'Ambrosio v. Milgroom , Case No. 09-P-816, 2009 Mass. App. LEXIS 1098 (Oct. 26, 2009), the Appeals Court affirmed a decision by the probate court that the defendant had breached fiduciary duties and converted assets of his late wife, the decedent. A further question was presented as to where the recovered assets belonged. The Appeals Court held that the probate court had erred in ruling that the funds from the sale of certain securities belonged to the decedent's estate rather than to the named surviving joint owners of the securities. Although the orders to sell the securities went out a few days before the decedent's death, the sales were not finally approved until after her death, and so the funds must pass to the surviving joint owners. Conversely, the probate court did not err in ruling that certain joint bank accounts belonged to the estate rather than to the surviving joint owner. The evidence showed that the decedent had established these accounts as a matter of convenience, and not as an estate planning measure.

In Chesley v. Eastern Bank , Case No. 07-P-547, 2009 Mass. App. LEXIS 1105 (Oct. 27, 2009), the Appeals Court affirmed a decision by the probate court striking an affidavit of objections to the probate of the decedent's will. The Appeals Court held that the motion to strike was properly granted because the affidavit of objections, filed by the decedent's estranged son, lacked specificity and was not based on personal knowledge. "[T]he standard by which a judge may evaluate a Rule 16 affidavit is somewhat more demanding than the highly indulgent one that applies to complaints. There need to be allegations, in verified form, of specific subsidiary facts that, if proved by a preponderance of the evidence, state grounds for contesting the will offered for probate." (Citation omitted.)

In Seguin v. Jette , Case No. 09-P-02, 2009 Mass. App. LEXIS 1117 (Oct. 28, 2009), the Appeals Court affirmed a decision by the probate court awarding $62,500 to the plaintiff and ordering partition of the property she owned with the defendant. The deed conveying the property to the plaintiff and defendant had been challenged by a third party on capacity grounds. The plaintiff and defendant settled that claim for $125,000. The plaintiff then sought to recover one-half of the settlement payment from the defendant and to partition the property. Reasoning that the $125,000 settlement payment constituted an "improvement" pursuant to G.L. c. 241, § 23, the probate court ruled that the plaintiff was entitled to $62,500 to be deducted from the defendant's portion of the partition by sale.