793 N.E.2d 335 (Mass. 2003)
In 1978, Josephine D’Amore created the 291 Commonwealth Avenue Trust and conveyed an apartment building located at that address in Boston to the trust, declaring herself sole trustee and sole beneficiary during her lifetime with her daughter Jean Bongaards to succeed her as sole trustee and lifetime beneficiary upon D’Amore’s death.1 The trust incorporated a schedule of beneficiaries providing D’Amore a life estate, followed by a life estate to Jean, and then remainder interests to D’Amore’s living grandchildren or to the living siblings of Jean as Jean might appoint by written instrument or will, with equal division among living grandchildren if no appointment occurred.2 In 1979, D’Amore executed a deed purporting to convey the real estate to Jean individually, though D’Amore held the property only as trustee at the time, and D’Amore died later that year.3 Jean and the plaintiff, who had married in 1965 and resided in one of the apartments, continued living there while Jean managed the property.4
In 1988, Jean executed a certificate accepting her appointment as trustee, though the document was never recorded.5 On July 19, 1996, Jean executed a recorded acceptance of her appointment as trustee, an appointment of the remainder interest in favor of her sister Nina Millen, an appointment of Nina Millen as successor trustee, an amendment adding a spendthrift clause, and a confirmatory deed clarifying that title to the property was held by the trust.6 Jean died ten days later on July 28, 1996, leaving a will that intentionally made no provision for the plaintiff.7 During her lifetime, Jean also maintained a bank savings account titled in her name as trustee for Nina Millen, retaining the power to withdraw funds at any time, and the account held assets totaling $39,905 at Jean’s death.8
The plaintiff filed a complaint in the Probate and Family Court seeking a declaration that the trust property and the bank account assets should be included in Jean’s estate for purposes of his elective share under G. L. c. 191, § 15, and the first amended complaint added a claim regarding the bank account.9 Acting on cross motions for summary judgment, the probate judge rejected both claims and entered judgment dismissing the complaint.10 The Appeals Court affirmed in part and reversed in part, concluding that the trust property was not included in the elective share estate but that the bank account should have been included.11 The Supreme Judicial Court granted the plaintiff’s application for further appellate review.12
Whether the real property at 291 Commonwealth Avenue held in the 291 Commonwealth Avenue Trust forms part of Jean Bongaards's estate for purposes of calculating the plaintiff's elective share under G. L. c. 191, § 15?13
Under the prospective rule announced in Sullivan v. Burkin, the estate of a decedent for purposes of G. L. c. 191, § 15 includes the value of assets held in an inter vivos trust created by the deceased spouse as to which the deceased spouse alone retained the power during life to direct the disposition of those trust assets for his or her benefit.14 The rule applies only to trusts created by the deceased spouse and does not reach assets placed in trust by a third party.15
No. The 291 Commonwealth Avenue Trust was created by Josephine D’Amore in 1978 when she conveyed the apartment building to the trust and declared herself sole trustee and beneficiary with Jean Bongaards to succeed her upon D’Amore’s death.16 Although Jean executed documents in 1996 that amended the trust by adding a spendthrift clause and thereby made the trust subject to the Sullivan rule, the trust property remains outside the elective share estate because D’Amore, not Jean, created and funded the trust.17 Jean’s powers under the trust, including the ability to appoint remainder interests and to terminate the trust, do not convert the third-party trust into one created by the deceased spouse.18 The plaintiff’s additional arguments that Jean held the property free of trust or that equitable estoppel bars assertion of the trust fail because the 1979 deed was a nullity, the trust remained valid, and Jean made no representations intended to induce the plaintiff’s reliance on individual ownership.19
The real property at 291 Commonwealth Avenue does not form part of Jean Bongaards's estate for purposes of the plaintiff's elective share under G. L. c. 191, § 15.20
Related opinions on this issue
Joined by Justice Spina
Justice Greaney concurs in the result on the theories argued by the plaintiff but dissents from the refusal to adopt Restatement (Third) of Property: Wills and Other Donative Transfers § 9.1(c) prospectively.21 He would treat property over which the decedent held complete control for her sole benefit as owned in substance by the decedent regardless of whether the trust was created by the spouse or a third party.22 This approach follows because Sullivan contemplates extension when Restatement text approves it.23
Functional equivalents of ownership should not be excluded merely by choice of form.24 Justice Greaney notes that the elective share statute is outdated.25 The gender issue of protecting typically female surviving spouses is of societal importance.26
A prospective rule would provide equity without disrupting existing plans.27
Chief Justice Marshall concurs that the trust property is not part of the elective share estate because Sullivan applies only to trusts created by the deceased spouse and the plaintiff advanced no other claim.28 She dissents from the majority’s extensive criticism of Restatement (Third) § 9.1(c) as dicta that reaches an issue neither raised nor briefed by the parties or amicus.29 Chief Justice Marshall would leave open the possibility of considering the Restatement (Third) in an appropriate future case.30
Sullivan itself relied on the predecessor Restatement.31 The court should not foreclose review of whether the new formulation should inform interpretation of G. L. c. 191, § 15.32
Whether the assets in the bank savings account maintained by Jean Bongaards as trustee for Nina Millen form part of Jean Bongaards's estate for purposes of calculating the plaintiff's elective share under G. L. c. 191, § 15?33
Under the prospective rule announced in Sullivan v. Burkin, assets held in an inter vivos trust created by the deceased spouse after the date of that decision, as to which the deceased spouse alone retained the power during life to direct the disposition of those assets for her benefit, are included in the decedent’s estate for purposes of G. L. c. 191, § 15.34
Yes. Jean Bongaards created the bank savings account in her name as trustee for Nina Millen after the Sullivan decision.35 She retained the unlimited power to withdraw all funds at any time.36 This retained sole control to direct the assets for her own benefit.37 The account therefore satisfies every element of the Sullivan rule and must be included in Jean’s estate for calculation of the plaintiff’s elective share.38
The assets in the bank savings account form part of Jean Bongaards's estate for purposes of the plaintiff's elective share under G. L. c. 191, § 15.39
Whether Jean Bongaards held the trust property free of trust or whether equitable estoppel prevents assertion of the trust's existence?40
A valid inter vivos trust once created cannot be revoked or altered except by the exercise of a reserved power exercised in strict conformity to its terms.41 Equitable estoppel requires a representation intended to induce reliance, reasonable reliance on that representation, and resulting detriment.42
No. The 291 Commonwealth Avenue Trust was a valid inter vivos trust created by D’Amore in 1978 with a schedule of beneficiaries signed by the settlor.43 The 1979 deed executed by D’Amore in her individual capacity conveyed nothing because she held title only as trustee.44 Jean’s later conduct in managing the property, filing taxes, and obtaining insurance did not constitute representations intended to induce the plaintiff to believe he would receive a share of the property.45 The plaintiff conceded he understood Jean held the property in trust.46
Consequently neither the free-of-trust theory nor equitable estoppel applies.47
Jean Bongaards did not hold the trust property free of trust and equitable estoppel does not prevent assertion of the trust's existence.48