United States: T&E Litigation Newsletter- 7/13/16

Last Updated: July 20 2016
Article by Marshall D. Senterfitt and Mark E. Swirbalus

The first two weeks of July have brought us some warm weather and three new decisions worth noting:

First, in Bank of America, N.A. v. Commissioner of Revenue, Docket No. SJC-11995 (July 11, 2016), the Supreme Judicial Court answered the question of whether Bank of America, in its capacity as corporate trustee of a number of inter vivos trusts, qualified as an "inhabitant" of Massachusetts and was thus subject to fiduciary income tax in Massachusetts during the relevant tax year.  Despite the undisputed facts that the bank was domiciled and had a principal place of business in North Carolina at all relevant times, the Court held that the bank was indeed an "inhabitant" of Massachusetts for purposes of the fiduciary income tax.  The decision includes an in-depth analysis of the three governing statutes—G.L. c. 62, §§ 1, 10 & 14—and the bank's arguments under those statutes.  The bottom line of the Court's analysis is that "a corporate trustee will qualify as an 'inhabitant' of the Commonwealth within the meaning and for the purposes of these statutes if it:  (1) maintains an established place of business in the Commonwealth at which it abides, i.e., where it conducts its business in the aggregate for more than 183 days of the taxable year; and (2) conducts trust administration activities within the Commonwealth that include, in particular, material trust activities relating specifically to the trust or trusts whose tax liability is at issue."

Second, in Rice v. Santander Bank, N.A., Civil Action No. 16-10478-FDS, 2016 U.S. Dist. LEXIS 87397 (D. Mass. July 6, 2016), the plaintiff, individually and as the personal representative of his mother's estate, brought claims against Santander Bank to avoid foreclosure on a home that had been owned by his parents and was now owned by the plaintiff individually.  The plaintiff's claims revolved around his arguments that his parents lacked the mental capacity in 2007 to execute the disputed home equity line of credit mortgage on the home, that the bank had obtained the mortgage through fraud, and that he himself did not learn of the mortgage and its default until recently.  The Court dismissed the plaintiff's individual claims as being time-barred and otherwise defective, but did not similarly dismiss the claims he was pursuing as personal representative. 

Regarding the timeliness of the plaintiff's claims as personal representative, the Court explained that under G.L. c. 260, § 7, if a person is "incapacitated by reason of mental illness" when a claim accrues, then the limitations period is tolled until the disability is removed.  Here, because the plaintiff alleges that his mother's disability was never removed before her death, the controlling limitations periods are those applicable to claims brought on behalf of a deceased person.  Specifically, pursuant to G.L. c. 260, § 10, there are three periods in which a claim can be brought on behalf of a deceased person:  (1) during the period within which the deceased person herself might have brought the claim; (2) within two years after the personal representative's posting of his bond; and (3) within three years from the date on which the personal representative knew or should have known of the factual basis for the claim on behalf of the deceased person.  Although the record was unclear as to why it had taken four years for the plaintiff to be appointed as personal representative, he nevertheless had two years from the date of his appointment to take action on behalf of his mother's estate.  The Court reasoned that a claim" could not have been brought on behalf of her estate until some individual was appointed personal representative."

Third, in Sarro v. Ciancarelli, Docket No. 14-P-230, 2016 Mass. App. Unpub. LEXIS 688 (July 7, 2016), the Appeals Court was confronted with the question of whether a claim for intentional interference with expectancy of a legacy had been inappropriately inserted into a case at the last minute, and thus whether it should have been submitted to the jury.  In answering the question, the Court laid out the elements of the claim, namely that "[t]he plaintiff must show that the defendant's interference acted continuously on the donor until the expectancy would have been realized."  (Internal citation omitted.)  The defendant, who was held liable for intentional interference, argued that the jury's verdict against her was improper because there was no evidence of continuous interference.  Specifically, she argued that the plaintiff had the opportunity to discuss the decedent's estate plan with the decedent herself, and so the defendant's interference could not have been continuous.  The Court rejected this argument as confused:  "The element of continuous interference is concerned with the effect of the defendant's wrongdoing, not the conduct of the plaintiff."

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions