Product Description

Recent updates:

• Update: December 2025

  Dear Subscriber:

  Thank you for choosing to stay current in your practice with this 2025 edition of Fiduciary Litigation in the Probate Court. Inside, you will find case decisions, insights, and practice tips on topics including the following:

  • Trial pacing. Chapter 1 cites a standing order requiring more efficient trial pacing in Probate and Family Court, including scheduling consecutive trial days and permitting judges to impose reasonable time limits on counsel and self-represented litigants.

  • Declaratory judgment. Chapter 3 cites a 2024 case where a declaratory judgment entered by one court was deemed a final judgment with preclusive effect, notwithstanding a pending appeal.

  • Present gift. Chapter 5 offers a 2024 case where the conditional gift of an engagement ring was found not to be complete, regardless of delivery and intent, when the wedding does not ensue.

  • Removal of personal representative. Chapter 6 addresses a fiduciary's duty to administer the estate to give effect to the decedent's intent. The chapter includes a case vacating the removal of a personal representative and trustee who sought reformation of a trust due to drafting errors and to avoid depletion of the estate to satisfy a Medicaid lien.

  • Exoneration clause. Chapter 7 addresses breach of a fiduciary's duties due to mismanagement, waste of trust property, commingling of trust funds, and self-dealing. The chapter cites a case where a judge removed a trustee and ordered compensation for losses to the trust.

  • Trust accounts. Chapter 8 discusses a 2024 case in which a qualified beneficiary sought an accounting of trust assets for a period preceding the date on which their interest became qualified.

  • Burden-shifting. Chapter 10 discusses a 2024 case in which the Appeals Court affirmed a decision to shift the burden of proof to the fiduciary where a fiduciary relationship existed and the fiduciary clearly benefited from the relationship.

  We at MCLE trust that you will find this new content useful in your fiduciary litigation and estate planning practice, and valuable in keeping your law library current.

  Cordially,

  MCLE Press

Table of Contents

Chapter 01 expand

Filings in the Probate and Family Court After the MUPC and MUTC

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James Gavaghan,
Noreen A. Mullen, Esq., The Mullen Law Group
Sharon B. Quinan, Day Pitney LLP

Exhibit 1A

- List of Massachusetts Probate and Family Court Forms Buy Form

Exhibit 1B

- Notice Requirements Buy Form

Chapter 02 expand

Complaint for Instructions

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Stephanie Addeo, Esq., Rubin Rudman LLP
Sara E. Kitaeff, Esq., Rubin Rudman LLP
Mark J. Warner, Esq., Warner, Federico & Ryan LLP

Exhibit 2A

- Complaint for Instructions, Sample 1 Buy Form

Exhibit 2B

- Complaint for Instructions, Sample 2 Buy Form

Exhibit 2C

- Verified Complaint for Instructions Buy Form

Exhibit 2D

- General Probate Petition Buy Form

Exhibit 2E

- Decree and Order of General Probate/Trust Petition Buy Form

Exhibit 2F

- Affidavit of Diane Jones Buy Form

Chapter 03 expand

Declaratory Judgment

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Jason Andreas Benitez, Esq.,
Bailey H. Cull, Goodwin Procter LLP
Jennifer Locke, Esq., Goodwin Procter LLP

Exhibit 3A

- Motion to Exclude Certain Persons as Parties Buy Form

Exhibit 3B

- Motion to Waive the Appointment of Guardian ad Litem and Approve Virtual Representation Buy Form

Exhibit 3C

- Affidavit of Representative Buy Form

Exhibit 3D

- General Trust Petition for Appointment of Guardian ad Litem—Trust, G.L. c. 203E, § 305(b) Buy Form

Exhibit 3E

- Complaint for Declaratory Judgment and to Divide Trust Buy Form

Exhibit 3F

- Answer and Request for Declaration Buy Form

Exhibit 3G

- Joint Motion for Approval of Settlement Agreement Buy Form

Exhibit 3H

- Motion for Issuance of Decree and Order of General Trust Petition, Proposed Findings of Fact, Decree and Order Buy Form

Chapter 04 expand

Reformation of Trusts Under Massachusetts Equity Procedure

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Eric P. Hayes, Esq., Goodwin Procter LLP

Exhibit 4A

- Complaint to Reform Trust Buy Form

Chapter 05 expand

Determination of Title

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Nora S. McMurphy, Esq., Holland & Knight LLP
Marshall D. Senterfitt, Esq., Holland & Knight LLP
Hon. Jennifer M. R. Ulwick, Probate and Family Court, Commonwealth of Massachusetts

Exhibit 5A

- Memorandum of Lis Pendens Buy Form

Chapter 06 expand

Removal, Death, and Resignation of Fiduciaries

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Robert J. O'Regan, Esq., Nixon Peabody LLP

Chapter 07 expand

Defending the Trustee Against Removal

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Mark W. Williamson, Esq., Law offices of Mark W. Williamson

Exhibit 7A

- Sample Appendix to Petition for Removal of a Trustee Buy Form

Exhibit 7B

- Sample Opposition to Petition for Removal of a Trustee Buy Form

Chapter 08 expand

Compelling and Objecting to Accounts

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Tiffany M. Bentley, Esq., Day Pitney LLP
Alex J. Harrington, Esq., Day Pitney LLP

Exhibit 8A

- Affidavit of Objections Buy Form

Chapter 09 expand

Defending Accounts

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Mary H. Schmidt, Esq., Verrill Dana LLP
Christopher H. Suh, Esq., The Wagner Law Group, A Professional Corporation

Chapter 10 expand

Litigating Will Contests

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Tiffany M. Bentley, Esq., Day Pitney LLP
Brian D. Bixby, Esq., Wilchins Cosentino & Novins LLP
Sydney Brady, Esq., Rubin Rudman LLP
Lisa M. Cukier, Esq., Rubin Rudman LLP
Andrea T. Dunbar, Esq., Bowditch & Dewey LLP

Chapter 11 expand

Compromise Agreements

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Sharon B. Quinan, Day Pitney LLP
Russell Jacob Smith, Esq., Casner & Edwards LLP

Exhibit 11A

- Petition for Will Compromise Buy Form

Exhibit 11B

- Decree that Compromised Will Be Proved and Allowed Buy Form

Exhibit 11C

- Compromise Agreement Buy Form

Exhibit 11D

- Mutual Release Agreement Buy Form

Exhibit 11E

- Compromised Will Buy Form

Chapter 12 expand

Parentage

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Hon. Maureen H. Monks, Middlesex Probate and Family Court South, Commonwealth of Massachusetts

Exhibit 12A

- Petition for Approval of Voluntary Acknowledgement of Parentage Buy Form

Exhibit 12B

- Complaint to Rescind Acknowledgement of Parentage Buy Form

Exhibit 12C

- Public Assistance Affidavit Buy Form

Exhibit 12D

- Complaint to Establish Parentage Buy Form

Exhibit 12E

- Complaint for Custody, Support, and Parenting Time Pursuant to G.L. c. 209C Buy Form

Exhibit 12F

- Petition to Change Name of Minor Buy Form

Chapter 13 expand

Cy Pres and Deviation

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Ann Hetherwick Cahill, Esq, Day Pitney LLP
Lisa M. Cukier, Esq., Rubin Rudman LLP
Noelle L. Maffeo, Esq., Day Pitney LLP

Chapter 14 expand

Fees in the Probate Court

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Judith K. Wyman, Esq.,

Exhibit 14A

- Form of Motion for Payment of Special Administrator’s Fees, Costs, and Expenses Buy Form

Exhibit 14B

- Form of Affidavit to Accompany Motion for Payment of Fees, Costs, and Expenses Buy Form

Exhibit 14C

- Proposed Order Buy Form

Chapter 15 expand

Petition to Partition

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Thomas P. Jalkut, Esq., Nutter McClennen & Fish LLP

Chapter 16 expand

Appellate Practice in Fiduciary Litigation

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Robert J. O'Regan, Esq., Nixon Peabody LLP

Chapter 17 expand

Evidentiary Privileges in Fiduciary Litigation

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Nicole E. Collins, Esq., Rubin Rudman LLP
Mary Beth L. Sweeney, Esq., Atwood & Cherny, PC

Chapter 18 expand

Standards of Capacity in Fiduciary Matters

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Jennifer L. Laucirica, Esq., Rubin Rudman LLP

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