Author:
Mark E. Swirbalus, Esq., Day Pitney LLP
The T&E Litigation Update is a recurring column summarizing recent trusts and estates case law. If you have question about this update or about T&E litigation generally, please feel free to e-mail the author by clicking on his name above.
Cohen v. Attorney General
In Cohen v. Attorney General, Case No. 11-11500-NMG, 2011 U.S. Dist. LEXIS 120336 (D. Mass. Oct. 18,2011), the federal district court dismissed an action brought by Jillian Cohen, purporting to act in her capacity as "Full Statutory Administratrix" of the estate of the decedent, effectively seeking federal court review of two state court dismissals of her previous suit for alleged negligence, products liability and wrongful death.
In dismissing the case on a motion brought by the Attorney General on other grounds, the court offered the following commentary on the plaintiff's inability to pursue the action pro se on behalf of the estate:
"Notwithstanding that Cohen may have authority to act based on her appointment as Administratrix, that is not sufficient to permit her to represent the interest of the Estate, where she is not a duly-licensed attorney admitted to practice in this Court. Although 28 U.S.C. § 1654 permits persons to proceed pro se, this provision does not allow unlicensed [sic] lay people to represent other pro se litigants. See Feliciano v. DuBois, 846 F. Supp. 1033, 1039(D. Mass. 1994); Eagle Assocs. v. Bank of Montreal, 926 F.2d 1305,1308 (2d Cir. 1991). Additionally, this Court's Local Rules do not provide such authorization. See District of Massachusetts Local Rule 83.5.3(c), providing that "[a] person who is not a member of the bar of this court, and to whom sections (a) and (b) are not applicable, will be allowed to appear and practice before the court only in his own behalf." Id. See also Pridgen v. Andresen, 113 F.3d 391, 393 (2d Cir. 1997) (holding that "an administratrix or executrix of an estate may not proceed pro se when the estate has beneficiaries or creditors other than the litigant."). Here, it appears that there are several beneficiaries and/or creditors, and thus claims inuring to the Estate...may only be prosecuted in this Court by duly-licensed counsel."
The Boston Bar Association Trusts & Estates Section Blog provides information as a service to its users and BBA members. Neither the Trusts & Estates Section nor the Boston Bar Association are a law firm and do not represent clients in any way. Although the information on this site is about legal issues and informational services it is not legal advice. Use of this blog does not in any way create a lawyer-client relationship. If you need a lawyer, the Boston Bar Association Lawyer Referral Service can refer you to a qualified attorney. http://www.bostonbarlawyer.org or call 617-742-0625.
A discussion of law and developments in the trusts and estates field.
Call for authors: The BBA Trusts & Estates Secton is seeking Massachusetts attorneys to author articles. If you are interested, please contact the Editors for more information.
Monday, November 7, 2011
Thursday, November 3, 2011
Alert: Massachusetts Uniform Trust Code Passes House
Author:
Brad Bedingfield, Esq., Wilmer Cutler Pickering Hale and Dorr LLP
As discussed here, on October 19, 2011, the Massachusetts Uniform Trust Code (MUTC) (formerly H. 2261 and S. 688, now H. 3780 and S. 2034) was reported favorably from the Joint Committee on the Judiciary. On October 31, it was reported from the House Committee on Ways and Means, and on November 1 passed the House.
For those of you who have contacted your representatives to urge passage of the MUTC, thank you for your support. However, we’re not there yet. Please ask your representatives in the Senate to send the MUTC to the Governor’s desk. As discussed here, the trust law provisions of the Massachusetts Uniform Probate Code (MUPC) are scheduled to take effect on January 2, 2012. It is vital that the MUTC, which has an effective date of January 2, 2012, is signed as soon as possible, to avoid a scenario whereby courts, practitioners, trustees and beneficiaries must grapple with multiple disparate bodies of trust law in succession.
In addition, the Massachusetts Uniform Probate Code (MUPC) technical corrections bill (S. 704) has not yet passed the House or the Senate. The Boston Bar Association is working closely with representatives to encourage passage of both the MUTC and the MUPC technical corrections bill as soon as possible. Please contact your representatives and urge them to push this bill through as well.
Thank you for your support.
The Boston Bar Association Trusts & Estates Section Blog provides information as a service to its users and BBA members. Neither the Trusts & Estates Section nor the Boston Bar Association are a law firm and do not represent clients in any way. Although the information on this site is about legal issues and informational services it is not legal advice. Use of this blog does not in any way create a lawyer-client relationship. If you need a lawyer, the Boston Bar Association Lawyer Referral Service can refer you to a qualified attorney. http://www.bostonbarlawyer.org or call 617-742-0625.
Brad Bedingfield, Esq., Wilmer Cutler Pickering Hale and Dorr LLP
As discussed here, on October 19, 2011, the Massachusetts Uniform Trust Code (MUTC) (formerly H. 2261 and S. 688, now H. 3780 and S. 2034) was reported favorably from the Joint Committee on the Judiciary. On October 31, it was reported from the House Committee on Ways and Means, and on November 1 passed the House.
For those of you who have contacted your representatives to urge passage of the MUTC, thank you for your support. However, we’re not there yet. Please ask your representatives in the Senate to send the MUTC to the Governor’s desk. As discussed here, the trust law provisions of the Massachusetts Uniform Probate Code (MUPC) are scheduled to take effect on January 2, 2012. It is vital that the MUTC, which has an effective date of January 2, 2012, is signed as soon as possible, to avoid a scenario whereby courts, practitioners, trustees and beneficiaries must grapple with multiple disparate bodies of trust law in succession.
In addition, the Massachusetts Uniform Probate Code (MUPC) technical corrections bill (S. 704) has not yet passed the House or the Senate. The Boston Bar Association is working closely with representatives to encourage passage of both the MUTC and the MUPC technical corrections bill as soon as possible. Please contact your representatives and urge them to push this bill through as well.
Thank you for your support.
The Boston Bar Association Trusts & Estates Section Blog provides information as a service to its users and BBA members. Neither the Trusts & Estates Section nor the Boston Bar Association are a law firm and do not represent clients in any way. Although the information on this site is about legal issues and informational services it is not legal advice. Use of this blog does not in any way create a lawyer-client relationship. If you need a lawyer, the Boston Bar Association Lawyer Referral Service can refer you to a qualified attorney. http://www.bostonbarlawyer.org or call 617-742-0625.
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