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Massachusetts Appellate Case Reflects the Importance of Well-Written Last Will

As you are creating your estate plan in Massachusetts, it is essential to have an attorney who can help create and organize all the documents your family will need to make decisions when you are unable to do so. Last wills are drafted documents that are meant to reflect the intentions of the estate owner, and they usually identify who receives a share or item of the estate. While this may seem straightforward, failure to properly write a will can lead to confusion and extensive litigation.

untitled-1416933-m.jpgThe recent Massachusetts appellate case Lowell v. Talcott provides an example of this sort of litigation. This case involved wills executed by a couple who left much of their property in trust for each of their daughters and their “issue.” One of the couple’s daughters married and had two grandchildren with her then-husband. The daughter and the husband separated, but during the process, she became pregnant with another child by a different man before the divorce was final. The question for the Massachusetts appellate court was whether the third granddaughter should be considered an “issue” of the testators’ daughter and receive her share of the testamentary trust.

The daughter’s husband was listed as the father on the birth certificate, and the husband was aware that he was named, yet he took no steps to correct the certificate. The only recorded disavowal of his paternity occurred when the third granddaughter was surrendered to the state’s care for adoption. After several decades, the granddaughter later contacted the trustees of the estate, presenting her birth certificate and claiming that she is a beneficiary of the testamentary trust.

The term “issue” was not specifically defined in the will, but the Court stated that when the will was written in 1951, “issue” was considered to only include children by marriage, not “illegitimate” children. Several years later, this construction was deemed to be too harsh, and it was changed to include all biological descendants unless clear expressions of contrary intent were made in the will. The Court also looked at the history of the law of the time, which provided the legal presumption that children born in lawful wedlock are “legitimate.” The Court reasoned that since the granddaughter was definitely a biological descendant of the testators and born while the mother was still married, she was “issue” of the mother and a beneficiary of the will. Since the husband took no steps at the time up to this case to remove his name from the birth certificate, the Court determined the presumption of legitimacy remained intact. The appellate court reversed the summary judgment of the lower court against the granddaughter and ordered that she be declared a beneficiary of the last will and testament.

The Massachusetts will and estate attorneys at Karsner & Meehan have the professional experience you need to review or set up a clearly written estate plan. We understand there are many personal, unpleasant topics involved, and we will handle each delicate matter in the strictest confidence. For a free consultation today, contact our office at 508.822.6600.

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