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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 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.
1. For Bosch cases filed in the Clerk’s Office for the County of Suffolk (county court) for a hearing before a single justice
2. For all Bosch cases filed in the Probate and Family Court
3. For Bosch cases reported to the Appeals Court without decision by the Probate and Family Court
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
5. The Report includes a list of things that courts deciding a Bosch case should consider.
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.