Mark E. Swirbalus, Esq., Goulston & Storrs, P.C.
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.
Sacchetti
v. Sacchetti
In Sacchetti v. Sacchetti, Case No. 10-P-2200, 2012
Mass. App. Unpub. LEXIS 1000 (Sept. 24, 2012), a decision issued pursuant to
Rule 1:28, the Appeals Court addressed cross-appeals from a judgment following
the eleven-day trial of a dispute between father and son concerning the
father’s assets.
Evo Sacchetti and his wife Lynn relied on their son
Kenneth Sacchetti for investment advice. According to that advice, Lynn listed
Kenneth’s name as a joint tenant on some of her accounts to avoid probate.
Following Lynn’s death in 1989, Kenneth claimed ownership of these joint
accounts and promised to transfer them to Evo. Kenneth also assumed control of
Evo's finances, who believed he could trust Kenneth in financial matters. When
Evo suffered a stroke in 2008, however, Kenneth continued to claim ownership of
the joint accounts with Lynn as well as certain accounts he held jointly with
Evo, and also claimed a fifty-percent interest in the family home in Milton as
a joint tenant with Evo with a right of survivorship. Evo subsequently filed
suit in Superior Court against Kenneth for breach of fiduciary duty and other
torts arising from Kenneth’s alleged manipulation of Evo's assets over a
twenty-year period.
The Superior Court ruled in Evo’s favor, ordering
Kenneth to reconvey title to the Milton home to Evo and to convey certain bank
and brokerage accounts to Evo. Both parties appealed from the judgment. Evo
appealed from the denial of his motion to make additional findings and to amend
the judgment, which failed to require Kenneth to account for $1.1 million in withdrawals
he had made from an account that was found to belong to Evo. Kenneth appealed
from the denial of his motion for a new trial or to alter or amend the
judgment, arguing that the statute of limitations had expired on some of Evo's
claims and that the judge erred in concluding that Kenneth was not the owner of
certain funds.
The Appeals Court affirmed in part (denying Kenneth’s
request for a new trial or an amended judgment) and reversed in part (granting
Evo’s request for additional relief).
Regarding Kenneth’s statute of limitations defense,
the Court recited the well-settled principle that a cause of action for breach
of trust or fiduciary duty does not accrue until the trustee repudiates the
trust and the beneficiary has actual knowledge of that repudiation. The Court
then held that the trial judge was not required to believe Kenneth's naked
assertions that Evo “knew” of Kenneth's breach of fiduciary duty and thus that
his claims had accrued and expired long ago. It was a question of credibility,
and there was no error in the trial judge's conclusion that the statute of
limitations did not begin to run until 2008, after Evo had suffered a stroke
and his family and financial experts began to review his assets and discovered
Kenneth's wrongdoing.
The Court also rejected Kenneth’s argument that the
trial judge erred in concluding that Evo was entitled to the proceeds of the
sale of "Kenneth's" Florida condominium because Evo’s name was not on
the deed. Kenneth had not included the deed in the record, and thus there was
no documentary support for Kenneth’s argument that Evo’s name was not on the
deed. Moreover, even if it were true that Evo’s name was not on the deed, the
Court explained that the evidence permitted the reasonable inference that it was
Lynn's and/or Evo’s money that was used to purchase the condominium, and that
the trial judge could properly deny Kenneth's contention that his parents
intended to make a gift to him.
Regarding Evo’s argument that Kenneth should be liable
to account for the $1.1 million he had withdrawn from Evo's account, the record
reflected Kenneth’s concession that he had withdrawn the funds and deposited
them into other accounts, including $989,000 into his own account with Weymouth
Bank. Although the Court acknowledged that not all of the funds in the Weymouth
Bank account derived from Evo's funds, the Court found this fact to be
irrelevant. Kenneth had failed to demonstrate that the withdrawn funds were
provided to or used for Evo's benefit, and so the Court ordered Kenneth to
return the funds to Evo. The Court noted that it was not incumbent on Evo to
prove that all of the funds in the Weymouth Bank account belonged to him, even
though that account is a source from which Kenneth may repay the funds he
withdrew..
Porst v. Deutsche Bank National Trust Company
In Porst v. Deutsche Bank National Trust Company, No.
11-04137, 2012 Bankr. LEXIS 4680 (Bankr. D. Mass. Oct. 4, 2012), the U.S.
Bankruptcy Court for the District of Massachusetts discussed what constitutes
valid revocation of a revocable trust and whether the trustee of a revocable
trust owes any duties to contingent remainder beneficiaries.
Mother established the revocable trust, naming herself
as trustee and reserving to herself a life estate in any real property conveyed
to the trust. The trust provided that upon mother’s death, her son would
receive a life estate in the family home if it were still held in the trust.
The revocation provision provided that mother could revoke or amend the trust
by delivering to the trustee a written instrument that she had “signed and
acknowledged.”
Ten years later, mother executed a document purporting
to revoke the trust. The document bears the signatures of two witnesses, but
was not acknowledged before a notary public. In her capacity as trustee, mother
also deeded the family home from the trust to her son for one dollar. The son
subsequently obtained a loan secured by the family home, and then filed for
bankruptcy protection. The holder of the security interest filed a proof of
claim in the bankruptcy proceeding. One of the issues in dispute was whether
the security interest was valid, which turned on two questions – whether
mother’s revocation of the trust was valid, and if not, whether her conveyance
of the family home from the trust to her son was valid.
On the first question, the Court set forth the
established principle that “a valid trust, once created, cannot be revoked or
altered except by the exercise of a reserved power to do so, which must be
exercised in strict conformity to its terms.” Based on this principle, the
Court held that mother’s revocation of the trust was not valid because it was
not in strict conformity to the trust’s revocation provision, which required
the instrument to be signed and acknowledged by her. In reaching this holding,
the Court relied on the following rationale from Phelps v. State Street Trust
Company, 330 Mass. 511, 512-13 (1953): “We think that the requirement of
acknowledgement meant that the settlor must acknowledge the instrument making
the alteration before a public officer authorized by law to take
acknowledgements of other writings. . . . And we think that the requirement of
acknowledgement was not wholly for the benefit of the trustees, and that it
could not be waived by them.”
On the second question, the son argued that even if
the trust revocation were invalid, mother could not convey the family home from
the trust to him for the inadequate consideration of one dollar, because doing
so constituted a breach of her fiduciary duty to the contingent remainder
beneficiaries (including himself, ironically). The Court rejected this
argument, holding that because mother had the power to revoke the trust, she
was free to do whatever she wanted with the family home. The Court reasoned
that during the lifetime of a settlor/beneficiary of a revocable trust, a
trustee is under no duty to consider the interests of the contingent remainder
beneficiaries, because those interests may be divested by the settlor. “To hold
otherwise would eviscerate an underlying purpose of the revocable trust and
disrupt the expectations of the settlor.”
Accordingly, mother’s conveyance of the family home
from the trust to her son was valid, and thus the security interest in the
family home that the son subsequently gave to the lender was valid.
Rockland Trust Company v.
Attorney Genera
In Rockland Trust Company v.
Attorney General, Case No. SJC-11257 (Oct. 11, 2012), the Supreme Judicial
Court allowed the requested reformation of a trust.
The settlor died in 2006. The trust
provides that upon the settlor’s death, the income is to be used to fund one or
two scholarships of $10,000 to students at Scituate High School. Any income not
distributed as scholarships is to be added to principal.
The trustee proposed to reform the
trust in two ways. First, the trustee sought to include language in the trust
evincing the settlor’s general (as opposed to specific) charitable intent,
thereby allowing the trust to qualify as a private charitable foundation and thus
be exempt from income tax. Otherwise the trust would have to pay income tax at
a high marginal rate, thus reducing the income available to distribute as
scholarships. Second, the trustee sought to amend the requirement that any
income not distributed as one or two scholarships of $10,000 be added to
principal, because undistributed income retained by a private foundation is
taxed at the rate of 100%. Again, this tax would reduce the amount available
for scholarships.
Based on the evidence in the
record, which included an affidavit from the drafting attorney and affidavits
from two of the settlor’s friends who attested to her charitable donations and
volunteer work, the Court found that the trust’s failure to reflect the
settlor’s general charitable intent was a scrivener’s error. The Court also
found that imposing a tax on the undistributed income retained in the trust
would defeat the settlor’s intent to have as much of the trust income as
possible used for scholarships.
Accordingly, the Court held that
the trust shall be reformed to include the requested language evincing the
settlor’s general charitable intent, and to amend the requirement that the
scholarships be limited to one or two in the amount of $10,000, with the
undistributed income added to principal. The amended language will read as
follows: “If the Distributable Funds exceed Ten Thousand Dollars ($10,000), the
Distributable Funds shall be divided into a number of scholarships in equal
amounts, provided, however, that each scholarship must be at least Ten Thousand
Dollars ($10,000).”
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