By the Court (Cohen, Grainger & Wolohojian, JJ.), Clerk
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008). MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff James Sinnott appeals from an entry of summary judgment by a judge of the Superior Court in favor of the defendants in this dispute over the assets of the estate of the decedent Una Sinnott, the mother of James and William Sinnott. The plaintiff and the defendants were beneficiaries of a will that contained an in terrorem clause. The will was allowed by a decree by a judge of the Probate and Family Court on March 23, 2011. The plaintiff did not object to the probate of the will, but instead filed this equity action in Superior Court more than two years later. After dismissal of several of the claims asserted in the complaint (see note 2, supra), the remaining claims alleged that the defendants fraudulently or improperly caused the decedent to divert assets to them during her lifetime.
The plaintiff's complaint contained eight counts: (1) fraud, misrepresentation, deceit, (2) unjust enrichment, constructive or resulting trust, (3) breach of covenant of good faith and fair dealing, (4) violation of G. L. c. 214, § 1, (5) violation of G. L. c. 247, § 7, (6) action pursuant to G. L. c. 214, § 3, (7) action for accounting pursuant to G. L. c. 214, § 3(5), and (8) declaratory judgment. Counts three, four, and six were previously dismissed pursuant to Mass.R.Civ.P. 12(b), 365 Mass. 754 (1974). The judge also dismissed any claims that alleged the defendants frustrated the decedent from implementing her intentions in her will or caused the decedent to deviate in her will from her estate plan, as the previous allowance of the will was conclusive on those issues. Brignati v. Medenwald, 315 Mass. 636, 637-638 (1944). The plaintiff does not appeal the dismissal of those claims; he appeals only from the dismissal of the remaining counts on summary judgment.
The decedent's will states, in pertinent part: "If any beneficiary hereunder shall contest the validity of my Will or any provision thereof, . . . or shall institute or join in (except as a party defendant) any proceeding to contest the validity of my Will . . . from being carried out in accordance with its terms whether or not such proceedings are instituted in good faith and with probable cause, then all benefits provided for such beneficiary hereunder are revoked and such benefits shall pass to the remaining beneficiaries of this will, as if such beneficiary then had been deceased and without issue."
The motion judge determined that the plaintiff would be legally entitled to bring these claims in favor of the decedent's estate as a residuary legatee under G. L. c. 230, § 5. The judge concluded, however, that the plaintiff's "action challenging Mrs. Sinott's final will and testament brings into effect the terrorem clause" in that document, thereby depriving the plaintiff of any right of recovery." See, e.g., G. L. c. 190B, § 2-517. On appeal, the plaintiff argues that in terrorem clauses only apply to will contests and that, therefore, the in terrorem clause here is not triggered because he is not contesting the will, rather making a claim in equity. "We review a decision to grant summary judgment de novo. . . ." Jenzabar, Inc. v. Long Bow Group, Inc., 82 Mass. App. Ct. 648, 649 (2012).
It appears the first time the plaintiff makes the argument that his claims are brought pursuant to G. L. c. 230, § 5, is in his opposition to the defendants' motion to dismiss. However, the plaintiff's complaint states that his claims are brought "as the residuary legatee."
However characterized, the lawsuit included an attack upon the will's provisions governing the distribution of assets. The judge noted in his decision that during oral argument on the motion to dismiss, the plaintiff "acknowledged, entirely appropriately," that his lawsuit "constituted attacks on the will itself." While the plaintiff's oral concession was somewhat equivocal, there is support in the record for the judge's conclusion.
T
he
court: "I take it the first two types of claims are really claims that do attack the will, do they not?"
Plaintiff's counsel: "They do, but I think it's important to give the entire factual context to relate those facts. They're not really the essential facts that the claim under 230, section 5 is based upon."
Pursuant to the in terrorem clause, the plaintiff was no longer a residuary legatee once he asserted the claims initially dismissed by the judge. He cannot avoid that result by couching his remaining claims as an attempt in equity "to enforce [claims] for the benefit of the estate." In order to assert such claims the plaintiff must be "an heir, legatee or creditor having an interest in the[ir] enforcement." G. L. c. 230, § 5. The consequences of the plain language of the in terrorem clause prevent him from claiming the requisite standing required by the statute.
In the exercise of our discretion, we decline the defendants' request for damages and double costs pursuant to Mass.R.A.P. 25, as appearing in 376 Mass. 949 (1979).
Judgment affirmed.
By the Court (Cohen, Grainger & Wolohojian, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: January 5, 2015.