Bongaards v. Millen

793 N.E.2d 335 (2003)

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Nature of the Case

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Facts

In 1978, Josephine D'Amore created the 291 Commonwealth Avenue Trust (trust) and conveyed to the trust real estate consisting of an apartment building located at that address. D'Amore declared herself the sole trustee and sole beneficiary of the trust during her lifetime. The terms of the trust provided that, on D'Amore's death, her daughter Jean would, if she accepted, become the sole trustee and sole lifetime beneficiary. D'Amore intended the trust property to pass solely to her children and then to her grandchildren. The trust incorporated by reference a schedule of beneficiaries and provided D'Amore a life estate and, following the termination of D'Amore's life estate, a life estate to Jean, and then to D'Amore's living grandchildren 'and/or to the living brother and sisters of Jean Bongaards. Jean had the power of appointment by an instrument in writing. If Jean fail to appoint one or more successor beneficiaries at the time of her death, the trust property was to be divided into equal shares to be paid to each then-living grandchild, and the trust was to terminate. Jean could also amend the terms of the trust or terminate the trust and vest title to the trust property in herself individually. In 1979, D'Amore executed a deed that purported to convey the real estate to Jean. D’Amore died in 1979 and Jean and P lived in the apartments. Jean managed the property. In 1996 Jean executed an appointment of the remainder interest in trust in favor of her sister, Nina Millen; an appointment of Nina Millen as successor trustee; and an amendment inserting a so-called spendthrift clause into the trust document. Jean also executed a confirmatory deed of the property at 291 Commonwealth Avenue to herself as trustee. Jean died ten days later on July 28, 1996. Jean maintained a bank savings account in the name of 'Jean A. Bongaards ATF [as trustee for] Nina Millen.' Jean retained the power to withdraw funds from the account at any time. Jean informed Millen of the account's existence and directed the bank to send account statements to Millen. The assets in the account totaled $39,905. Jean had intentionally not provided for P in her will. P claimed an elective share of the estate. P claimed that the trust assets were included.