Beyond The Will

Our Most Frequently Asked Questions in Fiduciary Litigation

April 29, 2022



Who can bring an action in Fiduciary Litigation?

A common question in Fiduciary Litigation is who exactly can bring a lawsuit. In other words, who can be the Plaintiff or Petitioner? The legal question is whether or not an individual or entity has “standing.” Standing is defined as a party’s right to make a legal claim or seek judicial intervention. Depending on the Fiduciary Litigation case, typically, an “interested person” has standing to bring an action. For example, in a trustee removal action, generally a party with a beneficial interest (someone who benefits from a trust) has standing to seek removal. In a guardian or conservator case, removal may also be requested by the incapacitated person.

In actions related to estate administration, interested parties also have the right to “appear” and “object” to either the probate of a will and/or the appointment of a personal representative. Interested parties are typically heirs to an estate, devisees under the will, creditors, and those with priority to serve as a personal representative. In those cases, the court requires certain notification be provided to interested parties regarding the estate and the related court proceedings. Once an interested party is provided notice, they are empowered to file an appearance in the case and voice any assent or objection.


Where do you file a Fiduciary Litigation action?

In Massachusetts, Fiduciary Litigation cases are brought either in the Probate and Family Court or the Superior Court. After an action is filed in the Probate Court, parties also have the option to request reassignment to .  To learn more about the Fiduciary Litigation Session, please click here. The legal question is whether or not the specific court is the proper venue for the case and the answer to that question is statutory. Venue refers to the county in which the specific court has both personal jurisdiction over the defendant and subject matter jurisdiction over the controversy. Jurisdiction is a question of court’s ability to properly hear a case, while venue refers to the proper location. A determination of proper venue typically depends on the type of case. For example, a proper venue for a guardianship case would be in the county where the person for whom the guardianship is sought is an inhabitant or resident. For estate administration, the proper venue is the county where the decedent was a resident at his or her time of death, or, in some cases where the decedent was a resident outside of Massachusetts, in the county where he or she has property.


What types of claims are generally brought in Fiduciary Litigation?

Fiduciary Litigation encompasses a wide range of cases, including trust and will contests, guardianship and conservatorship actions, and actions related to estate administration. Various claims may fall within those actions. For example, in a will contest, an action may be brought to show that the signer of the will (the testator) actually lacked the capacity to execute the will. An individual with proper standing, such as an heir at law, may be able to bring forth an action alleging the lack of capacity through a complaint filed in the proper court. That individual (the plaintiff) would have the burden of proving the testator’s lack of capacity at the time he or she executed the will. If proven, the will may be invalidated in part or in whole, and the rules of intestacy may prevail or a prior will may become effective.

Another action may be for breach of fiduciary duty by a trustee. An individual with a beneficial interest under the trust or even a co-trustee may bring an action showing that the trustee breached a fiduciary duty owed. A breach of fiduciary duty may be proven by showing (1) the existence of a fiduciary duty; (2) breach of that duty; (3) damages; and (4) a causal connection between breach of the duty and the damages. A fiduciary relationship exists between a trustee and a beneficiary under a trust. Various duties are owed by a trustee, such as the duty of loyalty, whereby a trustee owes undivided loyalty to the beneficiaries. A trustee may not act in his or her own self-interest over the interest of the beneficiaries. If that breach results in loss of some kind for a beneficiary, he or she may have cause of action.

A petitioner or plaintiff is not always the individual commencing litigation. For example, in an estate administration action, an individual who objects to the probate of a will or the appointment of a personal representative is also seemingly bringing a claim. As described earlier, persons interested in an estate are entitled to notice of any proceedings related to the estate. An heir or devisee, upon receiving notice, may file a Notice of Appearance and Objection, thereby objecting to the proceeding. Depending on the objection, an Objector (the individual objecting) will later file a document called an Affidavit of Objections, which describes his or her grounds for objecting to the probate or appointment. For example, you may not want your brother to serve as personal representative of your mother’s estate because  allegations of him stealing from her exist. An Affidavit of Objections would include the Objector’s personal knowledge of facts supporting those allegations.


How do parties gather information for a Fiduciary Litigation case?

One common question is how parties and their attorneys gather information to support or disprove a claim. The answer to that question is through the discovery process. Attorneys have various discovery tools which enable parties to compel and gather information from adverse or third parties. One party may request a production of documents from the other party. The party seeking information sends a list of sought-after documents to an adverse party and the adverse party has deadline by which to produce. For example, a party may seek “any and all drafts, notes and/or executed copies of the decedent’s will.”  The party receiving the request must conduct a diligent search of their records and documents in their custody, possession, and control to look for those specific documents. If a party does not appropriately respond or fails to produce documents without basis, the party seeking the documents may seek judicial intervention to compel the production. Continued failure may result in the court finding that party in contempt. This type of document production may also be sought from a third party, such a medical office or school. However, a different procedure governs that discovery process and includes service of a subpoena on individuals or entities.

Conducting depositions is another discovery tool and allows for live testimony by parties and witnesses. Either party may notice a deposition and witnesses may also be subpoenaed to testify as to their knowledge relevant to the case. A deposition allows a party to ask questions in person (or, more commonly today, via Zoom) and testimony is transcribed by a stenographer. Depositions are typically lengthy and costly, but testimony gathered and later used at trial may be invaluable to a case.


Am I able to remove a fiduciary from their role?

Yes, a plaintiff or petitioner may file an action seeking to remove a fiduciary from his or her role. More specifically, a petitioner (the individual filing the Petition) may commence litigation by filing a Petition for Remove a Trustee. The Petition would include the various grounds for removal, such as a serious breach of trust, lack of cooperation, unfitness, persistent failures, or a request by all beneficiaries. The trustee would respond to the allegations contained within the Petition (as the Respondent) and litigation thereafter has begun. One may also pursue the removal of personal representative if, for example, evidence shows hostility between the fiduciary and beneficiaries under the estate.


Is there anyway to avoid Fiduciary Litigation?

Yes. One of the best ways to avoid Fiduciary Litigation is by properly executing estate planning documents and providing clear, unambiguous instructions in the event of your death or incapacity. An estate plan executed by a testator with known capacity and without any threat of undue influence is one way to hopefully avoid a future will or trust contest. When drafting estate planning documents, working with knowledgeable attorneys, such as those in our Private Client Department, is the best way to avoid future litigation. Those estate planning documents will also include provisions for powers of attorney, health care proxies, guardians and conservators to serve in the event of your incapacity. Nominating an honest, ethical fiduciary to serve on your behalf of also another way to avoid litigation down the road. Parties on the brink of interminable litigation may also consider mediation, which is a process by which a third party helps resolve issues between the parties outside of court. This form of alternate dispute resolution helps parties bypass the need for costly litigation and help to reach an agreement earlier. Clients are also always encouraged to speak directly with family members if involved in litigation to see if a settlement agreement may be negotiated and executed, thereby ending litigation. However, for many individuals, the time and cost expended on litigation is nothing compared to the alleged wrongdoing by another, especially by a family member.




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