Product Description

Recent updates:

• Update: June 2024

  Dear Subscriber:

  Thank you for choosing to stay current in your practice with this 2024 edition of Fiduciary Litigation in the Probate Court. Inside, you will find case decisions, insights, and practice tips on topics including the following:

  • Complaints for instructions. See chapter 2 for a discussion regarding the distinction between a complaint for instruction and a petition for instructions. The chapter also offers a practice tip suggesting the preparation of an accompanying affidavit.

  • No-contest clauses. Chapter 3 contains a discussion about whether declaratory judgment is an appropriate mechanism for determining if beneficiaries violated a no-contest clause in a trust.

  • Lis pendens. See chapter 5 for a newly added sample memorandum of lis pendens.

  • Removal of trustees. Chapter 7 adds a discussion regarding a 2022 case wherein the court considered whether the language of the trust, which seemed to require "cause" for trustee removal, took into account the provisions of G.L. c. 203E, § 706(b)(4).

  • Hearings of contested accounts. See chapter 8 for new material about contesting accounts in the case of estates or trusts involving minors, incapacitated persons, or unborn/unascertained interests.

  • Defending accounts. Chapter 9 discusses whether testamentary trust accountings require court involvement for settlement, and whether trustees of testamentary and nontestamentary trusts are still required to account at least privately to qualified beneficiaries. The chapter cites a 2023 case.

  • Fraud and undue influence. Chapter 10 cites a 2023 case illustrating shifting burdens of proof of undue influence.

  • Contests regarding suitability of fiduciaries. Chapter 10 also offers a new discussion about a 2023 case where the court considered the requirements for an objector to contest the suitability of a fiduciary, including that of a sufficient legal interest in the estate.

  We at MCLE trust that you will find this new content useful in your fiduciary litigation and estate planning practice, and valuable in keeping your law library current.

  Cordially,

  MCLE Press

Table of Contents

Chapter 01 expand

Filings in the Probate and Family Court After the MUPC and MUTC

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James Gavaghan, The Mullen Law Group, LLC
Noreen A. Mullen, Esq., The Mullen Law Group
Sharon B. Quinan, Day Pitney LLP

Exhibit 1A

- List of Massachusetts Probate and Family Court Forms Buy Form

Exhibit 1B

- Notice Requirements Buy Form

Chapter 02 expand

Complaint for Instructions

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Stephanie Addeo, Esq., Rubin and Rudman LLP
Sara E. Kitaeff, Esq., Rubin and Rudman LLP
Mark J. Warner, Esq., Warner, Federico & Ryan LLP

Exhibit 2A

- Complaint for Instructions, Sample 1 Buy Form

Exhibit 2B

- Complaint for Instructions, Sample 2 Buy Form

Exhibit 2C

- General Probate Petition Buy Form

Exhibit 2D

- Decree and Order of General Probate/Trust Petition Buy Form

Exhibit 2E

- Affidavit of Diane Jones Buy Form

Chapter 03 expand

Declaratory Judgment

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Jason Andreas Benitez, Esq.,
Jennifer Locke, Esq., Goodwin Procter LLP

Exhibit 3A

- Motion to Exclude Certain Persons as Parties Buy Form

Exhibit 3B

- Motion to Waive the Appointment of Guardian ad Litem and Approve Virtual Representation Buy Form

Exhibit 3C

- Affidavit of Representative Buy Form

Exhibit 3D

- General Trust Petition for Appointment of Guardian ad Litem—Trust, G.L. c. 203E, § 305(b) Buy Form

Exhibit 3E

- Complaint for Declaratory Judgment and to Divide Trust Buy Form

Exhibit 3F

- Answer and Request for Declaration Buy Form

Exhibit 3G

- Joint Motion for Approval of Settlement Agreement Buy Form

Exhibit 3H

- Motion for Issuance of Decree and Order of General Trust Petition, Proposed Findings of Fact, Decree and Order Buy Form

Chapter 04 expand

Reformation of Trusts Under Massachusetts Equity Procedure

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Eric P. Hayes, Esq., Goodwin Procter LLP

Exhibit 4A

- Complaint to Reform Trust Buy Form

Chapter 05 expand

Determination of Title

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Marshall D. Senterfitt, Esq., Holland & Knight LLP
Mark E. Swirbalus, Esq., Holland & Knight LLP
Hon. Jennifer M. R. Ulwick, Probate and Family Court, Commonwealth of Massachusetts

Exhibit 5A

- Memorandum of Lis Pendens Buy Form

Chapter 06 expand

Removal, Death, and Resignation of Fiduciaries

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Robert J. O'Regan, Esq., Nixon Peabody LLP

Chapter 07 expand

Defending the Trustee Against Removal

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Mark W. Williamson, Esq., Law offices of Mark W. Williamson

Exhibit 7A

- Sample Appendix to a Petition for Removal of a Trustee Buy Form

Exhibit 7B

- Sample Opposition to Petition for Removal of a Trustee Buy Form

Chapter 08 expand

Compelling and Objecting to Accounts

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Tiffany M. Bentley, Esq., Day Pitney LLP
Alex J. Harrington, Day Pitney LLP

Exhibit 8A

- Affidavit of Objections Buy Form

Chapter 09 expand

Defending Accounts

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Mary H. Schmidt, Esq., Verrill Dana LLP
Christopher H. Suh, Esq., The Wagner Law Group, A Professional Corporation

Chapter 10 expand

Litigating Will Contests

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Tiffany M. Bentley, Esq., Day Pitney LLP
Brian D. Bixby, Esq., Wilchins Cosentino & Novins LLP
Sydney Brady, Esq., Rubin and Rudman LLP
Lisa M. Cukier, Esq., Rubin and Rudman LLP
Andrea T. Dunbar, Esq., Bowditch & Dewey LLP

Chapter 11 expand

Compromise Agreements

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Sharon B. Quinan, Day Pitney LLP
Russell Jacob Smith, Esq., Casner & Edwards LLP

Exhibit 11A

- Petition for Will Compromise Buy Form

Exhibit 11B

- Decree that Compromised Will Be Proved and Allowed Buy Form

Exhibit 11C

- Compromise Agreement Buy Form

Exhibit 11D

- Mutual Release Agreement Buy Form

Exhibit 11E

- Compromised Will Buy Form

Chapter 12 expand

Parentage

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Hon. Maureen H. Monks, Middlesex Probate and Family Court South, Commonwealth of Massachusetts

Exhibit 12A

- Petition for Approval of Voluntary Acknowledgment of Parentage Buy Form

Exhibit 12B

- Complaint to Rescind Acknowledgment of Paternity Buy Form

Exhibit 12C

- Public Assistance Affidavit Buy Form

Exhibit 12D

- Complaint to Establish Paternity Buy Form

Exhibit 12E

- Complaint for Support, Custody, and Parenting Time Pursuant to G.L. c. 209C Buy Form

Exhibit 12F

- Petition to Change Name of Minor Buy Form

Chapter 13 expand

Cy Pres and Deviation

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Lisa M. Cukier, Esq., Rubin and Rudman LLP
Ann Hetherwick-Cahill, Esq., Day Pitney LLP
Noelle L. Maffeo, Esq., Day Pitney LLP

Chapter 14 expand

Fees in the Probate Court

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Judith K. Wyman, Esq.,

Exhibit 14A

- Form of Motion for Payment of Special Administrator’s Fees, Costs, and Expenses Buy Form

Exhibit 14B

- Form of Affidavit to Accompany Motion for Payment of Fees, Costs, and Expenses Buy Form

Exhibit 14C

- Proposed Order Buy Form

Chapter 15 expand

Petition to Partition

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Thomas P. Jalkut, Esq., Nutter McClennen & Fish LLP

Chapter 16 expand

Appellate Practice in Fiduciary Litigation

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Robert J. O'Regan, Esq., Nixon Peabody LLP

Chapter 17 expand

Evidentiary Privileges in Fiduciary Litigation

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Nicole E. Collins, Esq., Rubin and Rudman LLP
Mary Beth L. Sweeney, Esq., Atwood & Cherny, PC

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