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Probate Challenges – A Cautionary Tale

If you read this blog on a regular basis (who doesn’t!!) you may recall an article entry from a year ago about challenges one can face when contesting a Will.  In that entry we cautioned that a challenger to a probate estate can be held responsible for the other parties’ legal fees for an unsuccessful challenge.  Whether you are from Lynn, Saugus, Lynnfield, Peabody, Salem and seeking redress in the Essex Probate Court, or Wakefield, Reading, North Reading or elsewhere in Middlesex County; it is important to know your rights and what limitations and pitfalls could await you in contesting a Will or appointment of a personal representative.

commerce-acts-books-477966-mA recent Probate Court decision illustrates how tricky (and costly) an unsuccessful challenge in a probate court can be.  Here’s what went down in Giroux v. Laranjo, et al., Lawyers Weekly No. 15-007-16.

Ms. Giroux was the attorney in fact for the decedent during his life under a power of attorney and after his death was the estate’s personal representative.  While the decedent was living, Ms. Giroux amended the distribution percentages in the decedent’s realty trust so that her beneficial interest increased and the other beneficiaries’ interests decreased.  She did this under her power as attorney in fact for the principal.  This was apparently what the decedent wanted.

Giroux asked the Probate Court for a declaration confirming her right to control the trust while the decedent was still alive.  The decedent’s other beneficiaries filed a counterclaim and asserted that Ms. Giroux “breached her fiduciary duty” by revising the schedule of beneficiaries.  They further asserted that Ms. Giroux’s unduly influenced the decedent, resulting in a larger percentage of the beneficial interest going to her.

Bristol Probate Court Judge Field rejected the beneficiaries’ Counterclaim against Ms. Giroux.  Judge Field entered Judgment against the beneficiaries for their failure to offer any supporting evidence of their claim.  Ms. Giroux then requested that the Court award her legal fees and costs pursuant to M.G.L. c. 215, §45.  M.G.L. c. 215, §45 states that,

“In contested cases before a probate court or before the supreme judicial court on appeal, costs and expenses in the discretion of the court may be awarded to either party, to be paid by the other, or may be awarded to either or both parties to be paid out of the estate which is the subject of the controversy, as justice and equity may require. In any case wherein costs and expenses, or either, may be awarded hereunder to a party, they may be awarded to his counsel or may be apportioned between them. Execution may issue for costs awarded hereunder.”

The beneficiaries opposed the request for fees and costs, arguing that such an award was not reasonable because it would wipe out their entire inheritance and there was no finding of bad faith.  The Court did not accept the beneficiaries’ argument.  The Court found that,

The Court need not find bad faith to make an award under §45 and a party whose conduct has triggered litigation may be ordered to pay the expenses resulting from that litigation,” … “Here, if attorney’s fees and costs are not shifted, the shares of the estate and trust to [Giroux] will be significantly diminished, while the shares of the defendants … will only be affected slightly.”

If you are considering contesting a Will or challenging the actions of a fiduciary in a probate matter in Massachusetts, be sure to weigh the merits of your claim, the evidence that supports your challenge and the potential for an award of legal fees to the successful party.  “The usual rule in Massachusetts is to prohibit successful litigants from recovering their attorney’s fees and expenses except in a very limited class of cases. This rule is known as the “American Rule”.”   Preferred Mutual Insurance Company V.  James G. Gamache, 426 Mass. 93 (1997).  However, the American Rule does not apply to all matters, and does not apply to matters that fall within the scope of M.G.L. c. 215, §45.  As a result, one must be thoughtful and informed about challenging probate appointments and decrees in Massachusetts.  If you think you may have a reasonable basis for contesting or challenging a Will or probate appointment, contact an experienced North Shore probate attorney to discuss your options.

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