Fiduciary Litigation Year in Review

Faculty

• Hon. Lee Peterson, Probate and Family Court
• Hon. Jennifer Ulwick, Probate and Family Court
• Lisa Cukier, Esq., Rubin & Rudman LLP
• Jennifer Laucirica, Esq., Rubin & Rudman LLP
• Mary Schmidt, Esq. Verrill

Every year, the Fiduciary Litigation Session (“FLS”) of the Massachusetts Probate & Family Court handles a wide variety of complex fiduciary, trust and estate, and family asset dispute litigation. In doing so, it decides issues not only of first impression but also other complex issues of interest to any practitioner who litigates fiduciary disputes. This CLE will review the most notable FLS decisions from the past year to give practitioners additional tools that they can use when they are litigating in Massachusetts (and perhaps elsewhere). 

A number of significant cases will be discussed. Examples include:

• Reilly, et al., v. Lane, Lane & Kelly, LLP, et al. (Suffolk Superior Court)
  Intended beneficiaries (nonclients) sued the testator’s estate planning attorney and paralegal for contract and malpractice after the decedent died before executing an updated will. Plaintiffs alleged the attorney failed to timely update the will to include the intended beneficiaries before the testator’s death. The Superior Court dismissed the claims holding that third-party beneficiaries have no standing to sue the attorney absent an enforceable will, and attorneys owe duties only to their client. Even if a duty existed, the complaint alleged no breach or negligence. The court granted the defendants’ motion to dismiss. 
• Arnold v. Arnold (Nantucket Superior Court)
  Plaintiff Craig Arnold sued his father Richard Arnold claiming breach of fiduciary duty, conversion, and slander of title relating to a Nantucket property that had purportedly been held in a family trust created in 1993. Richard recorded himself as successor trustee in 2021 after a settlement with his ex-wife (Craig’s mother). Craig asserted rights to full title as successor trustee and sought to recover trust assets. On summary judgment the court found in favor of the defendant that the trust ceased to exist because a 1997 Superior Court judgment had previously set aside the 1993 conveyance as a fraudulent transfer. Because the property was removed from the trust at that time and never reconveyed into the trust, there was no trust res in existence. 
• In the Matter of the Richard E. Howard Trust (Docket No. 23-P-889)
  Petitioner Cape Cod Center for the Arts (CCCA) and the Attorney General appealed the dismissal of a petition to reform a 1993 charitable trust via cy pres. The donor’s trust created a scholarship and a $50,000 gift to the Raymond Moore Foundation (RMF) for a museum room. The petition proposed substituting CCCA for RMF. The trustee and RMF had moved to dismiss for lack of standing. The Appeals Court held that the AG has standing (the trust arguably reflects general charitable intent) and that CCCA, as petitioner, lacked standing but could intervene. The court vacated the dismissal and remanded for further proceedings, leaving the cy pres issue to be decided on a fuller record.
• Charles Schwab & Co., Inc. v. Kamio, et al. (Suffolk Superior Court, Docket No. 2284CV02298H)
  After Michael Kamio’s death, an IRA dispute arose: his wife claimed he changed the beneficiary to her; his estranged sister claimed she remained a contingent beneficiary after her parents (primary beneficiaries) predeceased decedent. Schwab initiated an interpleader to resolve competing claims. The court determined on summary judgment that Mrs. Kamio failed to prove Michael ever substantially complied with Schwab’s formal beneficiary change requirements. This case highlights that individuals must follow the strict account specific requirements for making a beneficiary change.
• Carmela Curley v. Fabiana Ternullo (23-P-1393, January 17, 2025)
  Children of the decedent challenged the validity of a will executed by Domenico Ternullo shortly before he died, asserting lack of testamentary capacity and undue influence; the Probate Court found in favor of the widow and son named in the will. The Appeals Court affirmed the Probate Court’s decree and found there was sufficient evidence in the record (medical expert and testimony from attorney who prepared and witnessed the signing) to support a finding the decedent had testamentary capacity.
• Walton v. Walton (23-P-380, December 18, 2025)
  Heir Derek Walton filed an equity petition in probate after a partition proceeding involving his late mother’s real property. The mother’s will devised the Sunset Strip home to one heir and the residuary to another (Derek), but contained an in terrorem clause threatening forfeiture if the will were contested. Derek’s petition did not trigger the clause because he did not contest the will, but sought clarification of the devise. The Appeals Court vacated the Probate Court’s summary judgment dismissing Derek’s claim. It held the no-contest clause was not triggered by Derek’s equity action. The court also found genuine issues of fact about the decedent’s intent for the property (life estate vs. tenancy in common), so summary judgment was improper. The matter was remanded for further proceedings.
• In re Frank Pedro (24-P-0324, May 1, 2025)
  Frank Pedro (Pedro) deeded his home to his sister-in-law (Profio) for one dollar and transferred a bank account to Profio, these questionable transactions triggered Bristol Elder Services to file petitions for the appointment of guardian and conservator for Pedro. A temporary conservator was appointed and he filed a verified equity complaint against Profio and her husband alleging undue influence, among other things, indicating that Pedro lacked capacity at the time of the transactions. Profio signed a stipulation of agreement in that action agreeing to withdraw a motion to vacate the default judgment against her, that she would withdraw her objections to the guardianship and conservatorship, that she and her husband released any past, current, or future claim relating to Pedro’s estate, and affirming that Pedro wanted no contact with Profio. Pedro’s conservator then filed a petition for license to sell Pedro’s real estate; Profio filed an objection. The trial judge determined that Profio lacked standing (for not being an “interested person” under G.L. c. 190B, § 1-201(24)) to object to the petition for license to sell. The Appeals Court affirmed the trial court decision striking the petition to sell real estate and granting the license to sell. 
• TJR Services v. Hutchinson (SJC-13617, Dec. 26, 2024)
  TJR Services claimed ownership of real property in Duxbury following a 2015 foreclosure sale and brought summary process to regain possession; defendants disputed title and resisted eviction. The court evaluated whether a Housing Court judge may order interim use and occupancy payments in a summary process proceeding where a Land Court judgment on ownership is on appeal. The SJC determined that a final judgment declaring title has preclusive effect even if on appeal. Thus, the Housing Court can order use & occupancy during summary process based on that ruling. The single justice’s order vacating the Housing Court’s order was reversed.
• And more!