Bickford v. Bickford
| Decision Date | 03 December 1999 |
| Docket Number | CA971569B |
| Citation | 1999 MBAR 435 |
| Parties | Carol A. Bickford et al.1 v. Mary A. (Porzio) Bickford |
| Court | Massachusetts Superior Court |
Mass L. Rptr. Cite: 12 Mass. L. Rptr. 378
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): DOERFER
Plaintiffs seek to enforce the terms of an antenuptial agreement in this case. They are the children of the first marriage of the Decedent William J. Bickford. Defendant seeks a declaration that the agreement should not be enforced according to its terms for a number of grounds. She is the second wife of the Decedent and executed the antenuptial agreement in question with the Decedent.
There is no dispute that the agreement in question was executed nor any dispute as to the authenticity of the document itself which was received in evidence as Exhibit 6.2 In paragraph 3 the defendant waives and relinquishes any and all rights which she might otherwise have as a surviving spouse under any statutes in the property and estate of her husband whether by distributive share in the event of intestacy, the right of waiver of or election to take against a will, or the right to dower or a widow's allowance. In paragraph 5 it states, "Whether or not husband and wife are married at the time of the first of them to die and whether or not they are then living separate and apart (whether pursuant to a legal separation or otherwise) the survivor shall be entitled only to whatever interest the deceased party chooses to provide for the survivor in a will or trust executed on or after the date of this agreement..."3
and Circumstances Leading to
the Antenuptial Agreement
Defendant was born in 1949 in Chelsea, Massachusetts, and graduated from the business program at her high school. She later took courses at various community colleges and universities. For approximately twenty-five years, defendant worked part-time as a bookkeeper for Wasserman Associated and Sandell Development in Cambridge. In 1982, she also began working part-time for Mr. Bickford in his construction firm, Master Contractors, Inc ("Master Contractors"). Defendant asserts that she worked for Mr. Bickford as a receptionist rather than doing bookkeeping or accounting functions, but the weight of the evidence persuades the court that her responsibilities included bookkeeping including managing accounts and making disbursements and deposits to and from Mr. Bickford's business and personal accounts. She also trained two other employees, Patricia Pepe and Ellen Hamilton, in those functions. Defendant became a clerk and director of Master Contractors in 1991.
Mr. Bickford was born in 1941 in Winthrop, Massachusetts, and grew up in East Boston. At age twelve, he began working part-time. Following his graduation from high school, Mr. Bickford worked as an apprentice plumber. He later became a licensed master plumber. During this time, Mr. Bickford also attended night courses at Northeastern University, obtaining a degree in engineering, and other courses for building contractors through Harvard Extension School.
Both defendant and Mr. Bickford had previous marriages. Defendant married Edward Porzio in 1969. They had two children during that marriage, but divorced in 1987. Defendant maintained physical custody of the children after the divorce. Mr. Bickford married Mary E. Bickford in 1964. Together they raised three children, who are the plaintiffs in this case. At some time during Mr. Bickford and Mary E.'s marriage, however, Mary E. developed a serious mental illness. This illness led Mr. Bickford to move out of their home in 1987 and subsequently to obtain a divorce in 1988. Nonetheless, Mr. Bickford maintained certain ties with Mary E. Mr. Bickford provided for Mary E.'s care by entering into a separation agreement ("the separation agreement") under which he was required to pay her alimony for life and maintain life insurance for her benefit. The separation agreement also obligated Mr. Bickford to convey to Mary E. his interest in the family home located on Loring Road in Winthrop and a rental property located on Summit Avenue in Winthrop. Mr. Bickford held those properties in trust until his death, but never formally conveyed them to her according to the separation agreement.
Defendant and Mr. Bickford began dating in 1987. They became engaged in 1990 and married on February 22, 1992. At that time, Mr. Bickford was fifty years old, and defendant was forty-two. Both brought to the marriage strong commitments to their first families. In particular, because of Mary E.'s mental illness, Mr. Bickford had a substantial role in raising his children and a strong relationship with them.
Because they had such strong commitments to their prior families, defendant and Mr. Bickford agreed that they wanted to keep their prior estates separate. In accordance with these wishes, they agreed to sign an antenuptial agreement ("the antenuptial agreement"). Mr. Bickford retained Attorney Brian Bixby ("Attorney Bixby") to draft the agreement at issue in this case. Defendant also received advice from a lawyer and signed the agreement despite her counsel's recommendation to the contrary.
The antenuptial agreement incorporated detailed financial disclosure forms from both parties and meticulously explained each party's rights in clear, numbered paragraphs. In relevant part, the antenuptial agreement provided that "[e]xcept as hereinafter provided, [the parties to the marriage] waive and relinquish any and all rights which [they] might have as a spouse or surviving spouse..." The parties agreed that "[w]hether or not husband and wife are married at the time of the first of them to die..., the survivor shall be entitled to whatever interest the deceased party chooses to provide for the survivor in a will or trust executed on or after the date of this Agreement." The antenuptial agreement also allowed the survivor to continue living in the marital home after one of them died and left the parties free to provide for each other with substantial gifts during their lives.
Defendant and Mr. Bickford had been married for about three years when Mr. Bickford suffered a massive heart attack and died intestate on August 6, 1995. During their marriage, Mr. Bickford provided for defendant by establishing a $150,000 trust and a profit-sharing plan, and by taking out various annuities for her benefit. Defendant and Mr. Bickford also held some joint bank accounts. Defendant's work as a bookkeeper for Mr. Bickford continued throughout their marriage, and she assumed the management of Master Contractors after he died.
Shortly after Mr. Bickford's death, defendant petitioned the Probate Court to be appointed as the administrator of his estate. The court granted her petition on August 16, 1995. During her service as administratrix, defendant did not question the existence or validity of the antenuptial agreement, even acknowledging that it limited her rights as surviving spouse. Nonetheless, she consistently refused to give plaintiffs a copy of the antenuptial agreement. Defendant also did not deny the effect of the antenuptial agreement in correspondence with Attorney Bixby. As a result of that correspondence, Attorney Bixby proposed to plaintiffs that the antenuptial agreement be "waived" to achieve "significant estate tax savings." Under this plan, defendant would take her share as surviving spouse, plaintiffs would take theirs as surviving issue of Mr. Bickford, and defendant would "gift" back to plaintiffs the remaining part of what they would have taken had the agreement been valid, without subtracting estate taxes. Plaintiffs then filed this declaratory judgment action.
Defendant argues that the evidence shows that William rescinded the agreement during his lifetime and that therefore its validity need not even be examined. Defendant testified to instances during the marriage when Mr. Bickford started to draft a will, but never finished. The antenuptial specifically contemplates that either party could make a will and leave to the other such property as he or she chose. The conclusion the court draws from these occasions, though, is that either the decedent did not have the time, had not decided how to distribute his property, or simply decided not to draft a will at those times. These instances are not persuasive of an intent on the part of the decedent to abandon the antenuptial agreement, and it would be speculative to draw any further inference.
The court does not credit defendant's testimony that Mr. Bickford told her that he had rescinded the agreement. Apart from the court's general assessment of her credibility her testimony was difficult to reconcile with the fact that, throughout her term as administratrix, she never mentioned that either she or decedent had rescinded the agreement.
The parties agree that the Supreme Judicial Court's decision in Rosenberg v. Lipnick, 377 Mass. 666 (1979) outlines the factors to consider in judging the validity of antenuptial agreements, including
whether (1) it contains a fair and reasonable provision as measured at the time of its execution for the party contesting the agreement; (2) the contesting party was fully informed of the other party's worth prior to the agreement's execution, or had, or should have had, independent knowledge of the other party's worth; and (3) a waiver by the contesting party is set forth.
Having produced the written agreement, duly executed by the parties the plaintiffs must also show that these three Rosenberg factors are satisfied. Delvecchio v. Delvecchio, 143 So.2d 17, 20-21 (Fla. 1962); ...
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