In Redding v. Proulx, Case No. 09-P-722, 2010 Mass.
App. Unpub. LEXIS 580 (June 1, 2010), a decision issued pursuant to
Rule 1:28, the Appeals Court addressed the shifting of the burden
of proof in an undue influence action. The decedent's grandson
claimed that the granddaughter had unduly influenced the decedent
to amend her will for the granddaughter's benefit and to
transfer certain bank accounts during her lifetime to the
granddaughter. The grandson argued that because the granddaughter
was the decedent's attorney-in-fact, the burden should have
shifted to the granddaughter to disprove undue influence. The Court
disagreed, holding that the burden does not shift where the
fiduciary does not play a role in the principal's generosity
toward the fiduciary. Here, the evidence showed that although the
granddaughter was the decedent's fiduciary, and although the
decedent changed her will and transferred bank accounts for the
granddaughter's benefit, the granddaughter played no role in
In Davis v. Davis, Case No. 09-P-1356, 2010 Mass. App.
Unpub. LEXIS 596, another decision issued pursuant to Rule 1:28,
the trustee of a realty trust sought instruction and a declaration
allowing her to terminate the trust and distribute its assets to
the beneficiaries, arguing that continuation of the trust would be
uneconomical due to the cost of maintaining the property. Four of
the five beneficiaries supported termination and distribution. The
fifth beneficiary counterclaimed that, among other things, the
trustee deliberately spent down the trust by commencing the action
and paying associated legal fees from the trust account.
The Court affirmed the lower court's grant of summary
judgment for the trustee, holding that the judge had not abused her
discretion under G.L. 203, § 25 in ruling that continuation of
the trust would be uneconomical. Moreover, the trustee was well
within her rights in seeking instruction from the court, given the
lack of unanimity among the beneficiaries. As the Court explained,
"faced with the lack of unanimity of the beneficiaries and the
depletion of funds to maintain the property, the trustee more
likely would have breached her duties had she failed to seek
instruction from the court."
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It is important that you have updated financial powers of attorney and New Hampshire Advance Directives, clearly nominating your spouse (or another) as the primary person to make decisions in the event of incapacity.