Marsman v. Nasca

30 Mass. App. Ct. 789, 573 N.E.2d 1025 (1991)

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Nature of the Case

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Facts

Testatrix left money in her will in trust for her husband, Cappy. Under the terms of the trust, Cappy was to receive all of the income from the trust. Additionally, he was able to reach the principal if, upon inquiry by the trustees into his financial situation, it appeared that he needed this money for his comfortable support and maintenance. After Testatrix's death, he began having financial difficulties. He remarried and retained the trustee under Testatrix's will to draft a new will for him, in which he left all his property to his new wife (P). Subsequently, Cappy requested a distribution of a portion of the principal. The trustee, who was aware of Cappy's financial problems, sent him a check for $300 and asked him to explain his need for the money in writing. The attorney did not investigate Cappy's financial circumstances and did not make any further distributions of principal until Cappy entered a nursing home almost ten years later.

In order to remain in the house, he had bought with his wife, Cappy arranged with his stepdaughter to convey a remainder interest in the property to her and her husband, Marlette, while he retained a life estate. In return, the stepdaughter and her husband assumed most of the expenses associated with the house. The same lawyer who drafted Testatrix's will, and Cappy's will, and served as trustee, also drafted the deed. Notwithstanding Cappy's will, P was to have no interest or right to remain in the house after Cappy's death. Although she was aware of this, she believed that the stepdaughter would allow her to live in the house after Cappy's death. However, the stepdaughter predeceased Cappy. Upon Cappy's death, Marlette sent P a notice to vacate the premises. P filed suit, arguing that the trustee had a duty to inquire into Cappy's financial situation. The lower court found that the trustee did have a duty to inquire into Cappy's financial situation, that he had breached this duty, and that but for the breach, Cappy would not have conveyed the house to his stepdaughter. The court ordered Marlette to covey the house to P and ordered the trustee to reimburse Marlette for expenses incurred in the upkeep of the house. To the extent that the trust funds were insufficient to reimburse Marlette, the trustee was to be personally liable for them. Marlette and the trustee both appeal.