Throughout the year, the Boston Bar Association (BBA) receives
many proposals for amicus briefs. All proposals for BBA amicus briefs are fully
vetted to determine what if any value the BBA's voice can add to the questions
before the court. Extremely selective about weighing in with an amicus brief,
the BBA takes pride in the quality of its briefs, all of which are drafted by
dedicated volunteers. In today's decision by the Supreme Judicial Court in
Rachel A. Bird Anderson vs. BNY Mellon, N.A. trustee and others, the BBA is delighted to report that the SJC
answered the questions posed by the BBA's amicus
brief filed in this case. A BBA news
release issued on May 1, 2012 illustrates the
underlying problems in Bird.
Amid controversy, confusion and uncertainty over the retroactivity of a 2009
amendment, the BBA amicus brief, filed on April 30, 2012 urged the SJC to answer
two specific questions:
Is the retroactive application of Chapter 524 to instruments executed prior
to 1958 constitutional?
If so, what are the consequences for actions taken by fiduciaries in reliance
on Chapter 524 prior to the SJC's determination that such an application is
constitutional?
In its BIRD decision released today the SJC provided the clarity and
assurances the BBA was seeking:
"On balance, the retroactive application of the 2009 amendment to the
plaintiff is not reasonable," says the decision. The decision goes on to provide
even greater clarity:
"Although our discussion has focused on the factual situation before us, what
we have said presumably applies to others who, like the plaintiff, have
significant interests in pre-1958 trusts or other grants or devises, subject
only to divestment by predeceasing an existing beneficiary or to dilution
through the birth of others. Because of the uncertainty whether the 2009
amendment could constitutionally be applied retroactively, we think it is
appropriate to clarify that our decision does not make unreasonable any
distributions to adopted beneficiaries made in reliance on the 2009 amendment
between July 1, 2010, and the date of this opinion, nor does it make
unreasonable a trustee's declination to make such distributions. Although
"[b]eneficiaries of a trust are entitled to the protection of the courts where
there is a clear abuse of discretion or where the exercise of judgment by a
fiduciary is clearly inconsistent with a due appreciation of his
responsibilities as a fiduciary," McMahon v. Krapf, 323 Mass. 118, 124 (1948),
in light of the uncertain state of the law, neither of the above- mentioned
actions would be an abuse of discretion or clearly inconsistent with a trustee's
responsibilities."
The BBA deeply appreciates the work of its Amicus Committee for bringing to
light issues that have an impact on the entire bar.