In re Estate of Birkenfeld

• Docket Number: 22-P-1232
• Decision Date: 27 December 2023
• Parties: IN THE MATTER OF THE ESTATE OF RONALD BIRKENFELD.
• Court: Appeals Court of Massachusetts

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IN THE MATTER OF THE ESTATE OF RONALD BIRKENFELD.

No. 22-P-1232

Appeals Court of Massachusetts, Norfolk

December 27, 2023

Heard: October 5, 2023.

Petition filed in the Norfolk Division of the Probate and Family Court Department on July 23, 2021. A motion to dismiss was heard by Elaine M. Moriarty, J.

Mark E. Swirbalus for Bradley Birkenfeld.

Scott C. Ford for Pamela Birkenfeld.

Present: Wolohojian, Desmond, & Sacks, JJ.

WOLOHOJIAN, J.

The central question in this case, which is one of first impression, is whether a person has standing to challenge the appointment of a personal representative of an estate simply by virtue of falling within the Massachusetts Uniform Probate Code's (MUPC) definition of "interested person." G. L. c. 190B, § 1-201 (24). We conclude that the MUPC's

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definition of "interested person" does not displace the common-law requirement that a person have a legally cognizable interest in a probate estate to have standing to challenge the appointment of its personal representative. Because the objector in this case does not receive anything under the will, nor does he challenge the will's validity, he has no standing to object to the appointment of the personal representative even if he (the objector) is an "interested person" under the MUPC. We accordingly affirm the order dismissing the objector's petition and striking his objections.

Background.

On October 25, 2007, Ronald Birkenfeld (Birkenfeld) executed a will giving his tangible personal property to his wife, Pamela Birkenfeld (Pamela), with the residue of his estate to pour over into a revocable trust (trust). Explicitly excluded from the will were Birkenfeld's three sons from a previous marriage and a daughter from another relationship. As to the sons, the will stated that they were excluded because adequate provisions had been made for them under the trust. As to the daughter, the will stated that her exclusion was deliberate, and not the product of inadvertence, mistake, or other error. The will named Pamela as executor, with a financial advisor named as successor. If neither Pamela nor the financial advisor were able to serve as executor, the

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office was to be filled by a person nominated by a majority of the trustees of the trust.

The trust was structured to maximize the Federal estate tax marital exemption by dividing the trust res into two subtrusts: subtrust A was to receive the minimum amount that would wholly qualify for the exemption, and subtrust B was to receive the remainder. Pamela was to receive all of the income of subtrust A during her lifetime, as well as distributions from principal as the trustees determined in their uncontrolled discretion. Upon Pamela's death, the remaining accumulated and undistributed income of subtrust A was to go to Pamela's estate. The remaining principal of subtrust A, however, was to be distributed to Birkenfeld's three sons "in such amounts and proportions as" Pamela directed in her will. As to subtrust B, Pamela was to receive during her lifetime so much of the income and principal as the trustees determined in their uncontrolled discretion. The remaining principal and undistributed income of subtrust B was to be distributed upon Pamela's death to the three sons "in such amounts and proportions as" directed in her will.

The trust's initial trustees were Birkenfeld and Pamela. Pamela was to remain as a trustee after Birkenfeld's death, but

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the trust required that, from then on, there always be a professional trustee as well.^[1]

A little over thirteen years after executing the estate planning documents we have just described, Birkenfeld died on December 25, 2020. Birkenfeld's son Bradley immediately sued Pamela in the Superior Court, asserting fraud, unjust enrichment, and tortious interference with expectancy. The first two claims were based on a $500,000 gift Bradley made in 2012 to Birkenfeld and Pamela after Bradley received a whistleblower award of more than $100 million dollars from the Federal government. In essence, Bradley claimed that his gift was not used to pay off the mortgage on Birkenfeld and Pamela's home as Pamela had represented to Bradley that it would be. These claims were dismissed as time barred. Bradley's interference with expectancy claim was based on his allegation that Pamela interfered with his interest in the trust by diverting assets from Birkenfeld's estate. This claim was dismissed for lack of standing.

The dismissal of Bradley's Superior Court claims was affirmed on appeal. See Birkenfeld v. Birkenfeld, 102 Mass.App.Ct. 1118 (2023).

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A panel of this court determined that Bradley lacked standing to pursue an interference with expectancy claim because he had no legally cognizable interest in the trust. Specifically, the panel explained that "[b]ecause Bradley can only receive income and principal from the trust (if any remains) upon Pamela's death and at her discretion, he has no viable claim that he had an expectancy in [Birkenfeld's] estate that he would have realized but for Pamela's interference." Id.

Meanwhile, in addition to the Superior Court litigation, Bradley opened a separate line of attack in the Probate and Family Court. Specifically, he filed a petition seeking formal proceedings to have his brother Douglas appointed as personal representative of Birkenfeld's estate instead of Pamela, who was named executor in the will.^[2] It is important to note that Bradley did not challenge the validity of the will, nor did he contend that it was the product of undue influence. Bradley sought only to thwart Birkenfeld's desire that Pamela be personal representative of Birkenfeld's estate.

Pamela objected to Bradley's petition and filed a counterpetition in which she sought to be appointed personal

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representative as contemplated by the will. ^[3], ^[4] Bradley objected to Pamela's appointment. Pamela then moved to strike Bradley's objections and to dismiss his petition. Ultimately, a judge of the Probate and Family Court concluded that Bradley lacked standing to object to Pamela's appointment as personal representative of the estate. The judge accordingly dismissed Bradley's petition and struck his objections. The propriety of these rulings is now before us.

Discussion.

Bradley argues that the judge erred in concluding that he lacks standing to object to Pamela's appointment as personal representative. He contends...