In the Matter of the Estate of Birkenfeld

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22-P-1232 Appeals Court

IN THE MATTER OF THE ESTATE OF RONALD BIRKENFELD.

No. 22-P-1232.

Norfolk. October 5, 2023. - December 27, 2023.

Present: Wolohojian, Desmond, & Sacks, JJ.

Uniform Probate Code. Executor and Administrator, Appointment.
Probate Court, Standing. Statute, Construction.
Collateral Estoppel. Judgment, Preclusive effect. Words,
"Interested person."

Petition filed in the Norfolk Division of the Probate and
Family Court Department on July 23, 2021.

A motion to dismiss was heard by Elaine M. Moriarty, J.

Mark E. Swirbalus for Bradley Birkenfeld.
Scott C. Ford for Pamela Birkenfeld.

WOLOHOJIAN, J. The central question in this case, which is

one of first impression, is whether a person has standing to

challenge the appointment of a personal representative of an

estate simply by virtue of falling within the Massachusetts

Uniform Probate Code's (MUPC) definition of "interested person."

G. L. c. 190B, § 1-201 (24). We conclude that the MUPC's
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definition of "interested person" does not displace the common-

law requirement that a person have a legally cognizable interest

in a probate estate to have standing to challenge the

appointment of its personal representative. Because the

objector in this case does not receive anything under the will,

nor does he challenge the will's validity, he has no standing to

object to the appointment of the personal representative even if

he (the objector) is an "interested person" under the MUPC. We

accordingly affirm the order dismissing the objector's petition

and striking his objections.

Background. On October 25, 2007, Ronald Birkenfeld

(Birkenfeld) executed a will giving his tangible personal

property to his wife, Pamela Birkenfeld (Pamela), with the

residue of his estate to pour over into a revocable trust

(trust). Explicitly excluded from the will were Birkenfeld's

three sons from a previous marriage and a daughter from another

relationship. As to the sons, the will stated that they were

excluded because adequate provisions had been made for them

under the trust. As to the daughter, the will stated that her

exclusion was deliberate, and not the product of inadvertence,

mistake, or other error. The will named Pamela as executor,

with a financial advisor named as successor. If neither Pamela

nor the financial advisor were able to serve as executor, the
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office was to be filled by a person nominated by a majority of

the trustees of the trust.

The trust was structured to maximize the Federal estate tax

marital exemption by dividing the trust res into two subtrusts:

subtrust A was to receive the minimum amount that would wholly

qualify for the exemption, and subtrust B was to receive the

remainder. Pamela was to receive all of the income of subtrust

A during her lifetime, as well as distributions from principal

as the trustees determined in their uncontrolled discretion.

Upon Pamela's death, the remaining accumulated and undistributed

income of subtrust A was to go to Pamela's estate. The

remaining principal of subtrust A, however, was to be

distributed to Birkenfeld's three sons "in such amounts and

proportions as" Pamela directed in her will. As to subtrust B,

Pamela was to receive during her lifetime so much of the income

and principal as the trustees determined in their uncontrolled

discretion. The remaining principal and undistributed income of

subtrust B was to be distributed upon Pamela's death to the

three sons "in such amounts and proportions as" directed in her

will.

The trust's initial trustees were Birkenfeld and Pamela.

Pamela was to remain as a trustee after Birkenfeld's death, but
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the trust required that, from then on, there always be a

professional trustee as well.1

A little over thirteen years after executing the estate

planning documents we have just described, Birkenfeld died on

December 25, 2020. Birkenfeld's son Bradley immediately sued

Pamela in the Superior Court, asserting fraud, unjust

enrichment, and tortious interference with expectancy. The

first two claims were based on a $500,000 gift Bradley made in

2012 to Birkenfeld and Pamela after Bradley received a

whistleblower award of more than $100 million dollars from the

Federal government. In essence, Bradley claimed that his gift

was not used to pay off the mortgage on Birkenfeld and Pamela's

home as Pamela had represented to Bradley that it would be.

These claims were dismissed as time barred. Bradley's

interference with expectancy claim was based on his allegation

that Pamela interfered with his interest in the trust by

diverting assets from Birkenfeld's estate. This claim was

dismissed for lack of standing.

The dismissal of Bradley's Superior Court claims was

affirmed on appeal. See Birkenfeld v. Birkenfeld, 102 Mass.

1 Subject to the requirement that there be at least one
professional trustee at all times after Birkenfeld's death, the
trust allowed successor trustees to be appointed by the
following persons, in this order: (a) Pamela, (b) the remaining
trustee(s), and (c) a majority of beneficiaries then entitled to
receive income or principal.
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App. Ct. 1118 (2023). A panel of this court determined that

Bradley lacked standing to pursue an interference with

expectancy claim because he had no legally cognizable interest

in the trust. Specifically, the panel explained that "[b]ecause

Bradley can only receive income and principal from the trust (if

any remains) upon Pamela's death and at her discretion, he has

no viable claim that he had an expectancy in [Birkenfeld's]

estate that he would have realized but for Pamela's

interference." Id.

Meanwhile, in addition to the Superior Court litigation,

Bradley opened a separate line of attack in the Probate and

Family Court. Specifically, he filed a petition seeking formal

proceedings to have his brother Douglas appointed as personal

representative of Birkenfeld's estate instead of Pamela, who was

named executor in the will.2 It is important to note that

Bradley did not challenge the validity of the will, nor did he

contend that it was the product of undue influence. Bradley

sought only to thwart Birkenfeld's desire that Pamela be

personal representative of Birkenfeld's estate.

Pamela objected to Bradley's petition and filed a

counterpetition in which she sought to be appointed personal

2 Bradley's petition sought not only the appointment of a
personal representative, but also the admission of the will to
probate. This combined procedure is specifically permitted
under the MUPC. See G. L. c. 190B, § 3-414 comment.
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representative as contemplated by the will.3,4 Bradley objected

to Pamela's appointment. Pamela then moved to strike Bradley's

objections and to dismiss his petition. Ultimately, a judge of

the Probate and Family Court concluded that Bradley lacked

standing to object to Pamela's appointment as personal

representative of the estate. The judge accordingly dismissed

Bradley's petition and struck his objections. The propriety of

these rulings is now before us.

Discussion. Bradley argues that the judge erred in

concluding that he lacks standing to object to Pamela's

appointment as personal representative. He contends that, as an

"interested person" as that term is defined in the MUPC,5 he

3 Pamela's petition also sought formal proceedings regarding
the probate of the will, in addition to her appointment as the
estate's personal representative. See note 2, supra.

4 A petition for formal proceedings concerning the
appointment of a personal representative is to be brought
pursuant to § 3-414 of the MUPC. G. L. c. 190B, § 3-414. Such
a petition may be used, among other things, to seek adjudication
"regarding the priority or qualification of one who is a
petitioner for appointment as personal representative" or who
has previously been so appointed in informal proceedings. G. L.
c. 190B, § 3-414 (a).

5 The term "interested person" is defined to

"include[] heirs, devisees, children, spouses, creditors,
beneficiaries, and any others having a property right in or
claims against a trust estate or the estate of a decedent,
ward, or protected person. It also includes persons having
priority for appointment as personal representative, and
other fiduciaries representing interested persons. The
meaning as it relates to particular persons may vary from
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automatically has standing to object to the appointment of a

personal representative, regardless of whether he has any

interest in the estate. In the alternative, he argues that his

interest as a contingent remainder beneficiary of the trust is

sufficient to confer standing to object to the appointment of

Pamela as personal representative of the estate.6

The question whether a person has standing to challenge the

appointment of a personal representative is different from the

time to time and shall be determined according to the
particular purposes of, and matter involved in, any
proceeding."

G. L. c. 190B, § 1-201 (24). Bradley is an "interested person"
both because he is one of Birkenfeld's children and, as such, is
also one of Birkenfeld's "heirs" in that he would be entitled to
inherit from Birkenfeld under the intestacy laws. See G. L.
c. 190B, § 1-201 (21) (defining "heirs"); G. L. c. 190B, §§ 2-
102, 2-103 (intestacy laws).

6 Bradley also argues that the judge erred in finding that
Pamela is a suitable personal representative. See G. L.
c. 190B, § 3-203 (f). Because we conclude that Bradley lacked
standing to object to Pamela's appointment, he also does not
have standing to appeal the judge's finding of suitability. See
G. L. c. 215, § 9; Altschuler v. Minkus-Whalen, 31 Mass. App.
Ct. 937, 939 (1991). However, we note that although the judge

"of necessity retains a measure of discretion[,] . . . if
it is determined that the person named by the testat[or] is
suitable, the judge is obliged to appoint [her]. It should
also be borne in mind that the testator is disposing of his
own estate, and is entitled to have it administered by the
person he selects. Consequently, it requires a pretty
strong objection to induce the court to refuse the
appointment" (quotations and citations omitted).

Lindsey v. Ogden, 10 Mass. App. Ct. 142, 146 (1980).
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question whether a person has standing to challenge the

allowance of a will. See Gay v. Richmond, 9 Mass. App. Ct. 334,

337 (1980). Under § 3-401 of the MUPC, a formal testacy

proceeding seeking to determine whether a decedent left a valid

will "may be commenced by an interested person." G. L. c. 190B,

§ 3-401. By contrast, § 3-414 of the MUPC is silent as to who

may bring a petition concerning appointment of a personal

representative.7 Although § 3-414 states that notice of such

7 Section 3–414 provides:

"Formal Proceedings Concerning Appointment of Personal
Representative.

"(a) A formal proceeding for adjudication regarding the
priority or qualification of one who is a petitioner for
appointment as personal representative, or of one who
previously has been appointed personal representative in
informal proceedings, if an issue concerning the testacy of
the decedent is or may be involved, is governed by [§] 3–
402, as well as by this section. In other cases, the
petition shall contain or adopt the statements required by
[§] 3–301 (a) (1) and describe the question relating to
priority or qualification of the personal representative
which is to be resolved. If the proceeding precedes any
appointment of a personal representative, it shall stay any
pending informal appointment proceedings as well as any
commenced thereafter. If the proceeding is commenced after
appointment, the previously appointed personal
representative, after receipt of notice thereof, shall
refrain from exercising any power of administration except
as necessary to preserve the estate or unless the court
orders otherwise.

"(b) After notice as prescribed in [§] 3–403 to interested
persons, including all persons interested in the
administration of the estate as successors under the
applicable assumption concerning testacy, any previously
appointed personal representative and any person having or
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petitions must be given to "interested persons," it does not

identify the class of persons who may bring such a petition.8

Compare G. L. c. 190B, § 3-414 (b), and G. L. c. 190B, § 3-414

(a). In this sense, § 3-414 is similar to the pre-MUPC statute,

G. L. c. 195, § 11, which also was silent as to who had standing

to petition to remove, or to oppose the appointment of, a

personal representative. See Clymer v. Mayo, 393 Mass. 754, 763

(1985).

In the absence of statutory language on the issue, our pre-

MUPC case law imposed a common-law requirement that a person

have "a legal interest in the decedent's estate, such as [that

of] legatees and creditors," in order to have standing to

petition to remove, or to oppose the appointment of, a personal

representative. Clymer, 393 Mass. at 763. See Gay, 9 Mass.

App. Ct. at 337. A cognizable legal interest in the estate is

required because "[c]ourts are not established to enable parties

to litigate matters in which they have no interest affecting

claiming priority for appointment as personal
representative, the court shall determine who is entitled
to appointment under [§] 3–203, make a proper appointment
and, if appropriate, terminate any prior appointment found
to have been improper as provided in cases of removal under
[§] 3–611."

It is undisputed that all "interested persons" received
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notice of both Bradley's and Pamela's petitions.
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their liberty, rights or property." Clymer, supra, quoting

Hogarth-Swann v. Weed, 274 Mass. 125, 132 (1931).

The MUPC -- despite the breadth of its provisions -- "did

not replace all common-law principles concerning the affairs of

decedents." Cusack v. Clasby, 94 Mass. App. Ct. 756, 758

(2019). Instead, unless displaced by a particular provision,

"the principles of law and equity" are to "supplement" the

MUPC's provisions. G. L. c. 190B, § 1-103. Here, as we have

already noted, the MUPC does not identify the class of persons

entitled to challenge the appointment of a personal

representative. Thus, it did not displace the common-law

requirement of standing.

The question in this case thus becomes whether Bradley has

sufficient legal interest in the estate subject to the will to

have standing to challenge Pamela's appointment as personal

representative. He does not. The will gives Birkenfeld's

personal property to Pamela, with the residue of his estate to

pour over to the trust. Bradley was explicitly excluded from

receiving anything under the will, which he acknowledges as

Birkenfeld's valid will. Nor is Bradley's contingent remainder

interest in the trust sufficient to confer standing to challenge

Pamela's appointment as personal representative of the estate.

As was held in the appeal from the Superior Court action,

"Bradley can only receive income and principal from the trust
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(if any remains) upon Pamela's death and at her discretion" and

thus has no expectancy in Birkenfeld's estate sufficient to

confer standing. Birkenfeld, 102 Mass. App. Ct. at 1118.

Bradley is collaterally estopped from relitigating that issue

here. See Heacock v. Heacock, 402 Mass. 21, 23 n.2 (1988)

(issue preclusion, also known as collateral estoppel, "prevents

relitigation of an issue determined in an earlier action where

the same issue arises in a later action, based on a different

claim, between the same parties or their privies"). The issue

of Bradley's interest in the trust was identical in the Superior

Court action as it is here, the issue was essential to the prior

adjudication, and it resulted in a final judgment adverse to

Bradley, who was the plaintiff in that suit. See Kobrin v.

Board of Registration in Med., 444 Mass. 837, 843-844 (2005)

(requirements of issue preclusion).

Conclusion. The order allowing the motion to dismiss

Bradley's petition and to strike Bradley's affidavit of

objections is affirmed. Because Bradley lacks standing to

appeal from the order appointing Pamela as personal

representative of the estate, see note 6, supra, the result of

our decision is to leave that order undisturbed.

So ordered.