Fighting Against a Retroactive Rewriting of the Terms of a Testamentary Trust
This is a declaratory judgment action brought by a beneficiary under a 1941 Massachusetts testamentary trust created by her great-grandmother. It was taken by the Massachusetts Supreme Judicial Court (“SJC”) on direct appellate review, based on a reservation and report to the Massachusetts Appeals Court from the Massachusetts Probate and Family Court. At issue was the validity of a Massachusetts statute passed in 2010 that purports to change the meaning of the term “child” in such instruments (wills and trusts) retroactively, i.e., to cover all such instruments from the beginning of time that were in existence on the effective date of the statute. Specifically, prior to 1958 Massachusetts law provided that adopted descendants (other than the testator’s own adopted children) in Massachusetts were presumptively excluded from any bequest in a testamentary instrument, unless the contrary intent was clearly expressed in the document. In 1958, the Massachusetts Legislature reversed this rule of construction prospectively by expanding the default definition of “child,” and its equivalent terms, to include adopted descendants (unless defeated by the clear terms of the instrument), and by applying this default definition to instruments executed after the 1958 statute’s effective date (August 26, 1958). The 2010 Massachusetts statute applied this change to all such instruments in existence on July 1, 2010, regardless of their date of execution. The statute would thus retroactively change the meaning of the relevant term in the 1941 testamentary trust at issue, long after the death of the grantor, and require the proceeds under the trust to be divided among the plaintiff and her two adopted siblings (who, precisely because they were not beneficiaries under their great-grandmother’s trust, had received a separate bequest from their grandmother). The retroactive application of the 2010 statute would alter the plaintiff’s grandmother’s distribution of her property after her death and therefore has important implications for individual property rights, a core area of NELF’s concern.
NELF accordingly filed an amicus brief in support of the plaintiff, arguing that retroactive application of the 2010 statute would violate two fundamental rights under both the United States and the Massachusetts Constitutions. NELF argued, first, that the retroactive application of the statute violates the due process clauses of both the U.S. and the Massachusetts constitutions and, second, that it would constitute an unconstitutional taking of a property interest under both the U.S. and the Massachusetts constitutions. With respect to due process, NELF argued that retroactive application of the statute is unconstitutional because it serves no legitimate public interest. Briefly put, it is established that the legislature many not dictate how an individual should distribute her own private property upon her death. See Hodel v. Irving, 481 U.S. 704, 715 (1987);Powers v. Wilkinson, 399 Mass. 650, 652-54 (1987). At most, the legislature can provide a default definition of a term such as “child” and its equivalents, which individuals are free to accept or reject in their private instruments. Watson v. Baker, 444 Mass. 487, 495-496 (2005) Because the grantor in this case is long dead and, therefore, cannot decide for herself whether or not to accept the more inclusive definition set forth in the 1958 and 2010 statutes, retroactive application of the broader definition, in effect, to change how she left her property clearly offends due process. Retroactive application would also violate the takings provisions of both the state and federal constitutions, because it retroactively impairs the vested property rights of the plaintiff, without compensation. This argument is supported by the SJC’s own decision, Boston Safe Deposit & Trust Co. v. Fleming 361 Mass. 172 (1972), which invalidated any retrospective application of the 1958 statute that first established the more inclusive presumptive definition of “child.” Although the Court in that decision recognized the humanitarian and beneficial effect of the more inclusive definition, it nonetheless rejected the taking of established property interests. NELF argued that, for the same reason, the retroactive aspect of the 2010 statute must be rejected.
On August 28, 2012, the SJC issued its decision, agreeing with NELF that the 2010 amendment could not be applied retroactively to any pre-1958 trusts. The Court invalidated the statute on state due process grounds, applying its own balancing test. Among the factors mentioned by the Court was “the bedrock principle that a testator is entitled to rely on the state of law at the time of execution of a testamentary instrument.”
This is a declaratory judgment action brought by a beneficiary under a 1941 Massachusetts testamentary trust created by her great-grandmother. It was taken by the Massachusetts Supreme Judicial Court (“SJC”) on direct appellate review, based on a reservation and report to the Massachusetts Appeals Court from the Massachusetts Probate and Family Court. At issue was the validity of a Massachusetts statute passed in 2010 that purports to change the meaning of the term “child” in such instruments (wills and trusts) retroactively, i.e., to cover all such instruments from the beginning of time that were in existence on the effective date of the statute. Specifically, prior to 1958 Massachusetts law provided that adopted descendants (other than the testator’s own adopted children) in Massachusetts were presumptively excluded from any bequest in a testamentary instrument, unless the contrary intent was clearly expressed in the document. In 1958, the Massachusetts Legislature reversed this rule of construction prospectively by expanding the default definition of “child,” and its equivalent terms, to include adopted descendants (unless defeated by the clear terms of the instrument), and by applying this default definition to instruments executed after the 1958 statute’s effective date (August 26, 1958). The 2010 Massachusetts statute applied this change to all such instruments in existence on July 1, 2010, regardless of their date of execution. The statute would thus retroactively change the meaning of the relevant term in the 1941 testamentary trust at issue, long after the death of the grantor, and require the proceeds under the trust to be divided among the plaintiff and her two adopted siblings (who, precisely because they were not beneficiaries under their great-grandmother’s trust, had received a separate bequest from their grandmother). The retroactive application of the 2010 statute would alter the plaintiff’s grandmother’s distribution of her property after her death and therefore has important implications for individual property rights, a core area of NELF’s concern.
NELF accordingly filed an amicus brief in support of the plaintiff, arguing that retroactive application of the 2010 statute would violate two fundamental rights under both the United States and the Massachusetts Constitutions. NELF argued, first, that the retroactive application of the statute violates the due process clauses of both the U.S. and the Massachusetts constitutions and, second, that it would constitute an unconstitutional taking of a property interest under both the U.S. and the Massachusetts constitutions. With respect to due process, NELF argued that retroactive application of the statute is unconstitutional because it serves no legitimate public interest. Briefly put, it is established that the legislature many not dictate how an individual should distribute her own private property upon her death. See Hodel v. Irving, 481 U.S. 704, 715 (1987);Powers v. Wilkinson, 399 Mass. 650, 652-54 (1987). At most, the legislature can provide a default definition of a term such as “child” and its equivalents, which individuals are free to accept or reject in their private instruments. Watson v. Baker, 444 Mass. 487, 495-496 (2005) Because the grantor in this case is long dead and, therefore, cannot decide for herself whether or not to accept the more inclusive definition set forth in the 1958 and 2010 statutes, retroactive application of the broader definition, in effect, to change how she left her property clearly offends due process. Retroactive application would also violate the takings provisions of both the state and federal constitutions, because it retroactively impairs the vested property rights of the plaintiff, without compensation. This argument is supported by the SJC’s own decision, Boston Safe Deposit & Trust Co. v. Fleming 361 Mass. 172 (1972), which invalidated any retrospective application of the 1958 statute that first established the more inclusive presumptive definition of “child.” Although the Court in that decision recognized the humanitarian and beneficial effect of the more inclusive definition, it nonetheless rejected the taking of established property interests. NELF argued that, for the same reason, the retroactive aspect of the 2010 statute must be rejected.
On August 28, 2012, the SJC issued its decision, agreeing with NELF that the 2010 amendment could not be applied retroactively to any pre-1958 trusts. The Court invalidated the statute on state due process grounds, applying its own balancing test. Among the factors mentioned by the Court was “the bedrock principle that a testator is entitled to rely on the state of law at the time of execution of a testamentary instrument.”
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