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Probate, Will And Trust Litigation

FITCH appears on behalf of clients in a wide variety of matters over which the Massachusetts Probate and Family Court has jurisdiction. We represent personal representatives, executors, administrators, trustees, guardians, conservators, beneficiaries, general and limited partners, and other individuals and entities in various matters, including will contests, actions for breach of fiduciary duties, accountings, petitions for partition of real property, and other Probate, Will And Trust Litigation disputes.

Clients often turn to us in multi-party actions with complicated issues and high stakes, and in cases involving allegations of fraudulent administration or self-dealing.

The firm has handled a large number of high value and contentious trust and estate litigations. Our attorneys have successfully represented clients in will contests and equity proceedings involving claims of undue influence and lack of testamentary capacity.

Our attorneys regularly represent professional fiduciaries, including trust and estate lawyers, by defending them as having properly carried out their fiduciary responsibilities.

FITCH has litigated countless petitions for partition in the Probate and Family Court or in the Land Court. We regularly represent individuals who, as owners of an interest in real property as a tenant in common, are involved in disputes with the other co-owner(s) regarding whether or not the property should be sold or, where feasible, physically divided.

practicing in
Probate, Will And Trust Litigation

+Heather V.

Heather V. Baer

+Peter E.

Peter E. Ball

+Steven E.

Steven E. Gurdin

+Kurt S.

Kurt S. Kusiak


Malgorzata Mrozek

+Andrea Peraner-

Andrea Peraner-Sweet

+Nathalie K.

Nathalie K. Salomon

Probate, Will And Trust Litigation Case Results

– Fiduciaries

In a case that received national attention, we represented heirs of a privately held media company in the sale of the company and in resolving various claims against other heirs and fiduciaries involved in the transaction. The case was resolved through negotiation.

We represented the heirs of an estate in an action for breach of fiduciary duty against trustees, a lawyer, and an accountant of a large estate. The case was resolved successfully in mediation.

By pursuing damages claims and injunctive relief, we recovered $1,155,000 from a trustee who had systematically comingled and misappropriated assets placed in trust by our client’s ailing mother. Discovery in the case revealed that, over many years, while the plaintiff’s mother was suffering from Alzheimer’s disease, the trustee made some $692,000 in unauthorized cash withdrawals, and took substantial additional assets that he should have held in trust for our client’s benefit. We reached the trustee’s assets, won orders from the court freezing those assets, and ultimately forced a settlement of the case resulting in a recovery for FITCH’s client of $1,155,000.

In an important probate law decision of the Supreme Judicial Court in 2005, we served as counsel for trustees and successfully defended the constitutionality of an 1876 statute that governs the interpretation of certain trusts and wills. Although the statute has spawned considerable litigation, its constitutionality had not been definitively ruled upon by the Massachusetts courts.

In another case, we represented a large financial institution in its capacity as executor of an estate. Our lawyers successfully defeated the claims of parties who raised unfounded allegations of fraud in the probate of the estate.

– Intra-Family Disputes

In a recent matter, our clients discovered that they had been disinherited under a codicil executed by a testator with advanced Alzheimer’s disease. When they retained us, our clients were embroiled in multi-district litigation, in both federal and state courts. After we were engaged, we negotiated a stay of all litigation and engaged the parties in a process that led to a highly favorable settlement for our clients.

A family sought our help in settling a large estate where the decedent’s assets had been held in trusts, limited partnerships and a foreign corporation. Our clients were at odds with a family member over issues of asset ownership, delineation and control. At mediation, we achieved their objectives quickly and efficiently, without resort to litigation.

– Jointly Held Property

After threatening or initiating litigation, we have recently mediated the resolution of several disputes concerning the disposition of jointly owned real estate. In a recent mediation, the parties agreed to a creative physical partition of valuable waterfront property and the grant of mutual view easements. We often find that, as in this case, through effective advocacy in mediation our client achieved a highly satisfactory resolution involving much less time, expense and stress than a trial typically involves.

In a recently litigated case, a court-appointed Commissioner sold a large parcel of undeveloped land at an attractive price and result for our client, a minority owner who had been deadlocked in management decisions with the majority owner.

After a multi-day trial in the Barnstable County Probate and Family Court, the judge issued a favorable ruling for our client, a joint owner of a million-dollar vacation home in Provincetown. The effective presentation of expert testimony was a critical factor in the outcome.

– Fraud

We successfully represented a client in a case where a former friend, whose name had mistakenly been placed on the deed to our client’s home, attempted to force our client to pay him half of the value of the property.

We have successfully protected the assets of elderly and infirm people who had been vulnerable to, or victims of elder abuse. In these cases, we have thwarted the efforts of unscrupulous individuals, who have sought or actually obtained present or future financial benefits from people who are incapacitated and cannot act for themselves.