Jones, Matter of
| Decision Date | 19 February 1980 |
| Citation | 401 N.E.2d 351,379 Mass. 826 |
| Parties | In the Matter of Wanda W. JONES. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Louis H. Hamel, Jr., Boston, for the conservator.
Carol G. Fubini, Asst. Atty. Gen., for the Attorney General.
Karin Blake, Boston, guardian ad litem, for the ward.
Paul B. Sargent, Boston, guardian ad litem, for persons unborn and unascertained.
Before QUIRICO, BRAUCHER, KAPLAN, WILKINS and ABRAMS, JJ.
This case is before us on the reservation and report by a Probate Court judge of certain questions of law arising from a petition by a conservator for approval of an estate plan for his ward under G.L. c. 201, § 38. 1 The Probate Court judge reserved and reported questions concerning the estate plan to the Appeals Court pursuant to G.L. c. 215, § 13. 2 We transferred the case to this court on our own motion.
The proposed estate plan principally consists of the creation of two inter vivos trusts: one, a revocable trust, providing for distributions to or for the ward during her lifetime from income or principal as necessary or advisable for her health and comfortable support, with reminders to certain charitable organizations; the other, an irrevocable charitable remainder trust which provides for an annual payment to or for the ward, during her lifetime, of an amount equal to nine per cent of the fair market value of the trust assets, determined annually, with remainders to certain charitable organizations. 3
As we read the judge's reservation and report, three basic questions are presented: (1) whether the creation of revocable and irrevocable trusts specifying the ultimate distribution of trust assets to other than the estate of the ward is the same as making a will; (2) whether G.L. c. 201, § 38, as amended through St.1976, c. 515, §§ 25-26, authorizes making a will; and (3) whether the proposed estate plan could be approved in a proceeding in which the Commonwealth's representation may have been neutralized by a conflict of interest, and in which the ward's next of kin were represented by a guardian ad litem for unborn and unascertained heirs. 4 Although not reported by the judge, the parties have also asked whether an estate plan which is found to be in accordance "with the ward's wishes so far as they can be ascertained, although speculative" complies with the requirements of G.L. c. 201, § 38.
We hold that the proposed estate plan is not a testamentary disposition and is authorized by the statute. Furthermore, we find no infirmities arising from representation of the next of kin by the guardian ad litem or of the Commonwealth by the Attorney General. Finally, we uphold the judge's finding that the estate plan complied with the statutory criteria.
We briefly summarize the evidence presented below and reported by the judge. Wanda W. Jones is a ninety-year-old woman residing at the McLean Hospital in Belmont. She was found to be incapacitated by reason of advanced age and mental weakness in 1975 conservatorship proceedings. She is mentally incompetent and is unlikely to recover sufficient mental capacity to execute a will.
The conservator was first introduced to the ward in 1950 by her husband, Dr. Stephen G. Jones. The conservator did occasional legal work for Dr. Jones until 1959, when Dr. Jones died. Thereafter the conservator became the ward's attorney. The conservator alleges that to the best of his knowledge, the ward has no husband, issue, or other kindred. On her death, unless it should ultimately prove to be the case that she has a will or next of kin, her estate would pass by escheat to the Commonwealth. The conservator believes his ward never made a will. 5
In 1968, the conservator drafted a will for the ward under which virtually all her estate would pass to various charities, 6 but she never executed the will. Although the ward refused to sign the will, she never repudiated the dispositive provisions. The ward claimed that she had consulted with unidentified advisors who told her that the will was not properly drafted. 7 There was no evidence as to the ward's competency at the time she refused to sign the will. Although the will was presented to the ward for signature only once, the conservator reminded her of it on several occasions, the last being either in 1974 or 1975. The conservator also testified that the ward made small annual gifts, shown in her tax returns, to the charities named in the draft will; however, no individual charitable gift exceeded seventy-five dollars.
Prior to the hearing on the petition, the judge ordered that notice be given to the Attorney General of the Commonwealth and to the Department of Mental Health, and both filed acknowledgments of notice. The Attorney General's acknowledgment stated that the Attorney General assented to the allowance of the petition. Pursuant to the court order, a notice of the proceedings was also published in a major Boston newspaper once a week for three successive weeks. The judge found that the conservator made no special effort to investigate the possible existence of kindred, but simply relied on his long-standing acquaintance with the ward and her deceased husband, the ward's statements to the conservator and others that she had no relatives, and the failure of any party claiming a relationship to have responded to the newspaper publication of notice in the conservatorship proceedings. 8 In addition, the conservator made inquiries of the ward's brother-in-law, and others who knew her well. All reported that they did not know of any person claiming a relationship to the ward. However, no professional heir search was undertaken.
The court below appointed a guardian ad litem for the ward. The guardian ad litem's report opposed the allowance of the petition in so far as the petition proposed that ninety per cent of the ward's property be transferred to the irrevocable trust and only ten percent to the revocable trust. The guardian ad litem for the ward recommended that fifty per cent of the ward's assets should be transferred to the revocable trust in order to assure the availability of sufficient funds, including principal, for the ward's needs. With that modification, the guardian ad litem for the ward recommended approval of the estate plan as making sufficient provision for the ward's own needs, as being in accordance with the ward's own wishes so far as they can be ascertained, and as reducing prospective State and Federal taxes by a large amount.
The court also appointed a guardian ad litem to represent the interests of the unascertained heirs. He filed a report opposing the allowance of the petition on the ground that heirs who might with reasonable diligence be discovered at the time of the ward's death would be deprived of any rights they might have under the laws governing the estates of deceased persons.
The conservator moved for judgment in accordance with his petition, as modified by the recommendations of the guardian ad litem for the ward. The Probate Court judge declined to issue a judgment but instead reserved and reported certain questions to the Appeals Court. As part of the judge's reservation and report, the judge made the following findings. First, the proposed estate plan, modified as recommended by the guardian ad litem of the ward, includes adequate provision for the ward's own maintenance and support. Second, the estate plan is in keeping with the ward's wishes, so far as they can be ascertained, although speculative, and provides gifts to such charities, relatives and friends as would be likely recipients of donations from the ward. Third, the estate plan is designed to minimize in so far as possible current and prospective State and Federal income, estate and gift taxes.
The judge indicated that the plan might be substantially similar to making a will, and therefore not authorized by the statute, G.L. c. 201, § 38. We do not think the proposed estate plan is objectionable for that reason.
In Strange v. Powers, 358 Mass. 126, 260 N.E.2d 704 (1970), we held that the prior version of § 38 9 did not empower the court to approve the making of a will because that would involve "an unduly broad construction of the term 'estate plan.' " Id. at 133, 260 N.E.2d at 710. We think that the amendment to § 38 still does not permit a conservator to execute a will on behalf of his ward. The 1976 amendment to § 38 was largely drawn from § 5-408(3) 10 of the Uniform Probate Code, which specifically prohibits the conservator from making a will. We think that our decision in Strange v. Powers, supra, stands unimpaired. The omission of language prohibiting the making of a will from § 38 is not decisive. Luacaw v. Fire Comm'r of Boston, 350 Mass. 326, 329, 214 N.E.2d 734, 735 (1966), quoting Commonwealth v. Hartnett, 3 Gray 450, 451 (1855). See Condon v. Haitsma, 325 Mass. 371, 373, 90 N.E.2d 549 (1950).
Moreover, our case law does not support the view that the creation of an inter vivos trust is "the making of a will." In National Shawmut Bank v. Joy, 315 Mass. 457, 53 N.E.2d 113 (1944), the validity of a revocable trust in which the settlor not only created a life interest for himself and another, but also retained a general power of appointment subject to two life estates was upheld despite the argument that the trust was testamentary in nature and did not comply with the statute of wills. ...
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