Procedure for Probate and Family Court

On October 1, 2014, the SJC adopted the Amended Report of the Supreme Judicial Court’s Ad Hoc Committee on Bosch litigation and accepted its recommendations. Notification of this was received when O’Connell v. Houser and Bank of America v. Babcock were released on October 28, 2014.

Below are the recommendations of the committee, procedural information and decisional guidance. The Amended Report and its appendices are attached.

Recommendation of the SJC's Ad Hoc Committee on Bosch Litigation pdf format of Amended Rpt SJC's Ad Hoc Committee on Bosch Litigation
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The committee, comprised of Justice Botsford and members of the probate bar, recommended that the SJC “scale back on the number and type of Bosch cases it decides, and to leave many of these cases to be decided by the Probate and Family Court. The sense of the committee, based on the experiences of some members coupled with the information received from the committee’s conversation with [a supervisory attorney from the IRS], is that it is not necessary for Federal purposes always to have a decision from the State’s highest court.” Amended Report at 19. The approach favored by the committee “would make the [SJC’s] role in Bosch cases more consistent with its role overall in the Massachusetts judiciary: to focus primarily on cases of first impression and cases of significant public interest. It would leave to other courts the comparatively more routine role of applying settled Massachusetts law to the facts of a case.” Amended Report at 20.

“With such a well-developed body of Bosch law already existing in Massachusetts, the Probate and Family Court will have abundant guidance as to how to proceed; the Federal authorities will be in a good position to see that the Probate and Family Court has made a proper application of the existing Massachusetts law, and therefore will be in a good position to give the requisite ‘proper regard’ to the Probate Court’s resolution of the cases; and [the SJC’s] resources will be preserved for those Bosch cases that truly require its attention, i.e., those that present new and significant issues of Massachusetts law.” Amended Report at 21.
 

Procedure

  1. For Bosch cases filed in the Clerk’s Office for the County of Suffolk (county court) for a hearing before a single justice
    • The single justice will determine whether the case “can adequately be resolved by the Probate and Family Court”, or whether the SJC should hear it. Amended Report at 21.
    • “If the single justice determines that the case presents a novel or otherwise significant issue warranting the full court’s attention, and that the record is suitable for consideration by the full court, he or she will reserve decision and report the case to the full court.” Amended Report at 21.
    • “If the single justice determines that the case does not present an issue requiring the full court’s attention, he or she will transfer the case to the Probate and Family Court for a decision on the merits there.  See G. L. c. 211, § 4A.” Amended Report at 21-22.
    • “[I]t may be helpful for the parties, and could provide useful guidance to litigants and judges in future cases, if the single justice. . . were to briefly explain his or her reasons for deciding to transfer . . . a case (or not).” Amended Report at 23, FN 28.
  2. For all Bosch cases filed in the Probate and Family Court
    • The Probate and Family Court judge is required to determine “in the first instance whether to decide the case or report it without decision to the Appeals Court.” Amended Report at 22.
    • The judge would report the case to the Appeals Court when the case “present[s] novel, unresolved, or otherwise significant issues of Massachusetts law that require a final determination by the State’s highest court . . . . ” Amended Report at 22. A case would not be reported “solely for the reason that the Federal authorities are bound only by a decision from the Supreme Judicial Court.” Amended Report at 23.
    • The judge would decide the case on its merits if the case involves “settled principles of Massachusetts law.” Amended Report at 22. If the parties are aggrieved by the decision, “the parties might appeal to the Appeals Court and, if they wish, file an application for direct appellate review, but there would be no assurance or presumption that the application would be allowed.” Amended Report at 23, FN 30.
    • “[I]t may be helpful for the parties, and could provide useful guidance to litigants and judges in future cases, if the . . . probate judge were to briefly explain his or her reasons for deciding to . . . report a case (or not).” Amended Report at 23, FN 28.
  3. For Bosch cases reported to the Appeals Court without decision by the Probate and Family Court
    • The “current practice” of the Probate and Family Court judge reporting the cases “to the Appeals Court without decision, and the parties then fil[ing] an application for direct appellate review that is routinely granted by the Supreme Judicial Court” would no longer be the practice. Amended Report at 23.
    • “[T]he parties could still file an application for direct review, but it would no longer be presumed that the application will be granted.” Amended Report at 23.
    • The SJC “would evaluate the application as it does every other application, on the substantive merits, to determine whether it presents a novel or otherwise significant legal issue warranting consideration by the Supreme Judicial Court.” Amended Report at 23.
    • “Where the application is denied, the case would remain in the Appeals Court.” Amended Report at 23.
    • “The Appeals Court might decide the case on the merits, if the report is in proper order and the case warrants a decision from an appellate court in the first instance, or it might discharge the report and return the case to the Probate and Family Court if the report is defective or a decision from an appellate court in the first instance is not warranted.” Amended Report at 23, FN 29.

Decisional Guidance

  1. “Before relief can be granted, each court deciding a Bosch case must insist on a ‘full and proper record’ that includes the requisite ‘full, clear, and decisive proof’ of entitlement of relief.” Amended Report at 24.
  2. Relief should not be granted “merely because the parties have requested it and all parties before the court are in agreement.” Amended Report at 24.
  3. “The courts deciding these cases must also be guided by the well-developed body of decisional law from the Supreme Judicial Court in this area.” Amended Report at 24.
  4. Guardian ad litem for minor, unborn, incapacitated, or unascertained beneficiaries
    • “[I]t is preferable for the parties to supply the court with a favorable report from a guardian ad litem who has been appointed to represent those interests.” Amended Report at 25.
    • “If counsel wishes the court to act on a reformation request without the benefit of a guardian’s report, counsel must file a motion asking to waive the requirement of a guardian ad litem report, and must support the motion with a compelling reason why a report is not needed.” Amended Report at 26.
    • In cases of virtual representation, “[t]he committee anticipates that judges acting on motions to dispense with guardians ad litem will give careful consideration to the requirements of [G. L. c. 203E, §§ 302-305], and will grant such motions only when satisfied that all interests are indeed represented adequately by parties who have no conflict of interest with the person represented.” Amended Report at 26, FN 31.
  5. The Report includes a list of things that courts deciding a Bosch case should consider.
    • “The I.R.S. should either be named as a party or notified of the pendency of the action and given copies of the pleadings. While the I.R.S. cannot be compelled to appear in State court actions such as this, and routinely does not appear, naming or notifying the
    I.R.S. will assure the court that the agency at least has notice and the opportunity to appear and take a position if it wishes, as it has on occasion. If the plaintiff chooses not to name the I.R.S. as a party, he or she must demonstrate that the I.R.S. has been notified and provided with copies of the pleadings.” Amended Report at 24-25.
    • “The record before the court should include a statement of facts, agreed to by all parties, that is sufficient to support the relief sought. The record should also include the written assents of all identifiable beneficiaries to the relief sought.” Amended Report at 25.
    • “Copies of all the relevant trusts, wills, amendments, codicils, and other instruments, as well as any permissible extrinsic evidence that the parties are proffering to meet their burden of proof, such as an affidavit of the drafting attorney where applicable, should be included in the record.” Amended Report at 26.
    • “The record should disclose whether the parties are presently engaged in a dispute with the I.R.S. concerning the matter that is the subject of the actions, and if so, the status of the matter before the I.R.S. The parties should also indicate, where applicable, any alternative resolutions that they have explored that may be satisfactory to the I.R.S.” Amended Report at 27.
    • “If possible, the parties should offer calculations based on presently available information of the amount of the tax that would be due under the instrument as written and the  amount to be saved under the requested reformation, in order to demonstrate that the amount at issue is sufficiently significant to justify the court’s intervention and to warrant the relief sought.” Amended Report at 28.
  6. Footnotes 9 through 18 of the Amended Report include numerous references to Bosch cases decided by the SJC. The cases involve the marital deduction under Federal estate tax law, the Federal generation-skipping transfer tax, charitable remainder trusts, powers of appointment, irrevocable life insurance trusts, disclaimers, qualified personal residence trusts and grantor retained annuity trusts.