LINDA S. RORIE, Personal Representative v. JEANNE MCCLAIN-PETERSON & Others Edward A. McClain, Jr., Third- Party

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

22-P-1128

LINDA S. RORIE, personal representative, 1

vs.

JEANNE MCCLAIN-PETERSON & others 2; Edward A. McClain, Jr., third-
party defendant.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff, Linda S. Rorie, commenced this action as

personal representative of the estate of her husband, Edward

Arthur McClain (decedent). Rorie alleged that three of the

decedent's siblings, including defendants Jeanne McClain-

Peterson and Scott McClain, 3 conspired to name themselves as the

beneficiaries of the decedent's deferred annuity contract with

defendant AXA Equitable Life Insurance Company (AXA). 4 A judge

1 Of the estate of Edward Arthur McClain.

2 Scott McClain, AXA Equitable Life Insurance Company, and Vista
Verde Corporation.

3 This appeal involves several members of the McClain family. To
avoid confusion, we refer to the members of the McClain family
by their first names.

4 Rorie also named Vista Verde Corporation (Vista Verde) as a
defendant. The parties stipulated to a dismissal of Vista
of the Probate and Family Court concluded that Rorie did not

have standing and ordered that she pay attorney's fees to Jeanne

and Scott. Rorie timely appeals from the resulting judgment of

dismissal; amended judgment on cross claim; orders entered May

5, 2022, on Rorie's motions to strike and for rehearing and to

alter and amend the judgments; and orders on attorney's fees

entered April 7, 2021, and March 11, 2022. We agree that Rorie

does not have standing as personal representative of the estate,

and we discern no abuse of discretion in the decision to award

attorney's fees. Accordingly, we affirm.

Background. The following facts are undisputed for

purposes of this appeal. On June 10, 2005, AXA issued a

deferred annuity contract (policy or AXA policy) to the decedent

for coverage on his life. The decedent named his son, Edward A.

McClain, Jr., as the sole beneficiary. 5 On September 7, 2013,

the decedent executed a power of attorney in favor of a brother,

Neil McClain. The decedent died on November 11, 2013. The

following day, Neil submitted a change of beneficiary form to

AXA that he had executed in October under his power of attorney

Verde, and this appeal does not raise any issues concerning
Vista Verde.

5 Edward, Jr., was brought into this lawsuit through AXA, which
sought interpleader relief and named Edward, Jr., as a third-
party defendant.

2
and that named himself, Jeanne, and Scott as the beneficiaries

of the AXA policy.

In 2013, Rorie commenced a Superior Court action in her

individual capacity against Neil, Jeanne, and Scott. In part,

Rorie claimed that the decedent lacked the capacity to give Neil

the power of attorney and, through fraud or undue influence, his

siblings induced the decedent to change his power of attorney

and designate new beneficiaries for the AXA policy. The

Superior Court action was dismissed without prejudice on July 5,

2017, when Rorie failed to comply with a discovery order.

Then, in 2017, Neil and his wife filed for bankruptcy. In

the bankruptcy proceeding, Rorie filed a claim in her individual

capacity and as personal representative of the estate. Rorie

argued that the change of beneficiary form was not effective

until submitted to AXA, that Neil's power of attorney ended on

the decedent's death, and that Neil had no authority to submit

the change of beneficiary form to AXA the day after the decedent

died. Rorie requested a finding that the change of beneficiary

form was null and void. Neil and his wife stipulated that they

had no defense to the requested finding. On or around July 22,

2019, a judgment entered in the bankruptcy proceeding declaring

that Neil and his wife had "no interest" in the AXA policy and

that the change of beneficiary form was "null and void."

3
Also in 2017, Rorie commenced the underlying Probate and

Family Court action as personal representative of the estate. 6

In part, Rorie again asserted the decedent's lack of capacity to

contract and claimed fraud or undue influence in the change of

beneficiaries for the AXA policy. In an order entered October

15, 2020, a Probate and Family Court judge concluded that Rorie,

as personal representative, did not have standing. Later, the

judge awarded Jeanne and Scott attorney's fees. Separately, on

November 30, 2020, Jeanne, Scott, and Edward, Jr., filed a

settlement agreement resolving the claims among themselves by

splitting the proceeds of the AXA policy, two-thirds to Jeanne

and Scott, jointly, and one-third to Edward, Jr. 7

Discussion. 1. Standing. We first address whether Rorie,

as personal representative, has standing. 8 "A plaintiff must

6 Rorie originally named Neil and his wife as defendants but,
after learning of their bankruptcy proceeding, filed an amended
complaint that did not name them as defendants.

7 In a motion requesting to supplement the record, Jeanne and
Scott assert that they and Edward, Jr., entered into the
settlement agreement on or around June 19, 2020. While nothing
in our decision turns on this date, we note that the settlement
agreement was reached almost one year after Neil stipulated in
the bankruptcy proceeding that the change of beneficiary form
was null and void.

8 In her notice of appeal and appellate brief, Rorie states that
she is appealing in her individual capacity and as personal
representative of the estate. Because Rorie brought the
underlying complaint as personal representative of the estate,
we are limited to considering whether Rorie has standing to
pursue the claims she brought in that capacity.

4
have standing, a definite interest in the matters in contention

in the sense that [her] rights will be significantly affected by

a resolution of the contested point." Bonan v. Boston, 398

Mass. 315, 320 (1986). Where "standing in this case [is a]

question[] of law, our review is de novo." Caputo v. Moulton,

102 Mass. App. Ct. 251, 253 (2023). 9

Rorie maintains that, as personal representative, she has

standing to enforce any contracts entered into by the decedent.

The cases she cites do not stand for that broad proposition.

Bettencourt v. Bettencourt, 362 Mass. 1, 11 (1972), held that

the executor of an estate could bring an action to determine

whether the decedent had entered into a reciprocal will. Tyler

v. Treasurer & Receiver Gen., 226 Mass. 306, 308 (1917), did not

address whether a personal representative had standing to

enforce a contract, and instead addressed whether the

beneficiary of a contract had standing to enforce the contract. 10

9 Rorie contends that Jeanne and Scott are the ones who lack
standing. However, Jeanne and Scott have a "definite interest
in the matters in contention," Bonan, 398 Mass. at 320, where
they were arguably named beneficiaries of the AXA policy.

10Rorie also maintains that the decedent could have brought
several of the claims in this action, that they survived his
death, and that she, as personal representative, has standing to
pursue them. See Kraft Power Corp. v. Merrill, 464 Mass. 145,
149-150 (2013). Based on the record before us, Rorie did not
raise this argument below, and it is therefore waived. See
Weiler v. PortfolioScope, Inc., 469 Mass. 75, 86 (2014).

5
Alternatively, Rorie asserts that, as personal

representative, she has standing because the estate has an

economic interest in the proceeds of the AXA policy. In

particular, Rorie asserts that if the change of beneficiary form

were valid, (1) it would create separate interests in each

beneficiary individually and (2) Neil's forfeited interest would

revert to the estate. See Kruger v. John Hancock Mut. Life Ins.

Co., 298 Mass. 124, 128-129 (1937). To reach this conclusion,

Rorie ignores the policy language (discussed below) and relies

on the proposition that "[i]f under a life insurance policy

taken out by the insured a beneficiary's interest is terminated

by his death before the death of the insured and no other

beneficiary is designated to take that interest, it reverts as a

lapsed trust to the legal representative of the insured." Id.

at 129. 11

We may assume for purposes of our review that the change of

beneficiary form, if valid, created a separate interest in each

beneficiary individually. However, it does not follow that

Neil's lapsed interest reverted to the estate. The cases on

which Rorie relies involved policies that did not designate

11If, instead, the change of beneficiary "create[d] a joint
interest in the [three] named beneficiaries with the right in
the survivor[s] to take the whole of the proceeds," Kruger, 298
Mass. at 128, Neil's forfeited interest would go to Jeanne and
Scott.

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another beneficiary to take the interest other than the estate.

See Taylor v. Sanderson, 330 Mass. 616, 620-621 (1953); Kruger,

298 Mass. at 129; Hersam v. Aetna Life Ins. Co., 225 Mass. 425,

427 (1917). Here, in contrast, the AXA policy included the

following provisions, which detailed how "[a]ny part of a death

benefit payable for which there [was] no named Beneficiary

living at the Annuitant's death" would be paid.

"Any part of a death benefit payable for which there is no
named Beneficiary living at the Annuitant's death will be
payable in a single sum to the surviving Owner. If there
is no surviving Owner, payment will be made to the Owner's
surviving spouse. If there is no surviving spouse,
payments will be made to the Owner's surviving children in
equal shares. If there are no surviving children, then
payment will be made to the Owner's estate."

The decedent was the annuitant and the sole owner of the

policy. When he died, there were no other owners of the policy.

In these circumstances, the policy provided that payment would

"be made to the Owner's surviving spouse," Rorie. Thus, even if

Neil had a separate interest in the policy, that interest did

not revert to the estate, and Rorie has not shown how the estate

has a "definite interest in the matters in contention." Bonan,

398 Mass. at 320.

2. Attorney's fees. We next address whether the Probate

and Family Court judge abused her discretion in awarding

attorney's fees under G. L. c. 215, § 45, which "vests

'discretion [in] the court' to award, or shift, costs and fees

7
'as justice and equity may require.'" Matter of the Estate of

King, 455 Mass. 796, 805 (2010), quoting G. L. c. 215, § 45.

"These words establish a broad standard," and "so is the judge's

degree of discretion." Matter of the Estate of King, supra.

Nonetheless, the standard still "require[s] a reason, grounded

in equity, why an award shifting fees should be made." Id.

"[A] judge's discretionary decision constitutes an abuse of

discretion where we conclude the judge made a clear error of

judgment in weighing the factors relevant to the decision . . .

such that the decision falls outside the range of reasonable

alternatives" (quotation and citation omitted). L.L. v.

Commonwealth, 470 Mass. 169, 185 n.27 (2014).

The Probate and Family Court judge who awarded attorney's

fees relied in large part on what happened in the prior Superior

Court action. She considered that the Superior Court action was

dismissed for failure to comply with a discovery order and that

Rorie's then counsel testified that the dismissal did not matter

because Rorie, as personal representative, could seek the same

relief in the Probate and Family Court. The Probate and Family

Court judge further noted that, in denying a motion to vacate, a

Superior Court judge found that "the exhibits submitted to the

court strongly suggest[ed] that Rorie lack[ed] a meritorious

claim for fraud or undue influence." Finally, the Probate and

Family Court judge who awarded attorney's fees noted that the

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Superior Court judge's warning "should have been a strong

cautionary note to [Rorie] about the risk of pursuing her

strategy to file in Probate Court" and that the effect of

Rorie's strategy "was to require [Jeanne and Scott] to bear

legal fees twice." However, the Probate and Family Court judge

also specifically found that Rorie did not "act[] frivolously."

The Probate and Family Court judge's analysis shows that

she carefully considered the factors relevant to awarding

attorney's fees, including that Rorie "provoked a needless round

of litigation." Strand v. Hubbard, 31 Mass. App. Ct. 914, 914

(1991). Given the broad language of G. L. c. 215, § 45, we

9
discern no abuse of discretion in the judge's decision to award

attorney's fees under that statute. 12

The judgment of dismissal;
amended judgment on cross
claim; orders entered May
5, 2022, on Rorie's motions
to strike and for rehearing
and to alter and amend the
judgments; and orders on
attorney's fees entered
April 7, 2021, and March
11, 2022, are affirmed.

By the Court (Hand,
Hershfang & Brennan, JJ. 13),

Assistant Clerk

Entered: March 20, 2024.

12The requests by Rorie and by Jeanne and Scott, for awards of
appellate costs and attorney's fees, are denied.

13 The panelists are listed in order of seniority.

10