Mass. court says new law can’t apply to old wills

BOSTON—Adopted children do not share equal footing with biological children in wills and trusts executed before 1958, the highest court in Massachusetts ruled Tuesday in a case that pitted a member of a well-known family against her two adopted brothers.

Rachel Bird Anderson asked a court to declare a 2009 amendment to the state’s wills and trust law unconstitutional. That amendment said a 1958 amendment that included adopted children in the definition of “child” should be applied to all wills and trusts, no matter when they were executed.

The Supreme Judicial Court, however, ruled that the 1958 amendment cannot be applied retroactively to wills executed before then. The court said that although the 2009 amendment may have had a “laudable” public policy goal of equal treatment for adopted and biological children, there are constitutional limits on the Legislature’s power to enact retroactive laws.

“We are hesitant to apply rules affecting property rights retroactively because it is likely that testators, settlors, and grantors consult with attorneys and consider the existing state of the law when deciding how to draft instruments conveying inheritances,” Justice Margot Botsford wrote for the court in the unanimous ruling.

The Bird family founded a successful roofing and paper business in Massachusetts in 1795 and donated Bird Park to the town of Walpole. Rachel Bird Anderson’s father, David Bird, who died in 2007, was a prominent political consultant.

The dispute before the SJC involved a 1941 will and trust established by Anna Child Bird, the great-grandmother of Rachel Bird Anderson. Matthew Bird, born in 1970 and Marten Bird, born in 1965, are the adopted sons of David Bird. When Anna Child Bird’s will was executed in 1942, a state law said that adopted children were excluded from the definition of “child” in wills and trusts unless it was clearly spelled out otherwise.

In 1958, the law was amended to redefine “child” to include adopted children, but the amendment only applied to wills and trusted executed after that.

In 2009, the Legislature enacted another amendment that made the 1958 applicable to all wills and trusts, no matter when they were executed.

Since the death of her father, Rachel Bird Anderson has been receiving income distributions from the trust established by Anna in her will. As the adopted great-grandchildren of Anna, Marten and Matthew have not.

After the Legislature enacted the 2009 amendment, the trustee of Anna’s will sent Rachel a letter informing her that her 50 percent interest in the trust would now be divided into three equal parts to cover her and her two adopted brothers.

Rachel, who now lives in Minneapolis, sought a ruling from the court.

Her lawyer, George Cushing, said the court found that the 2009 amendment took property rights away from Rachel without due process.

“I think what the court is saying is that this was an unfair act in the way it operated and you can’t retroactively change rules that affect the ownership of property or the entitlements to property in trusts,” Cushing said.

Marten Bird and Matthew Bird did not retain lawyers to represent them in the lawsuit. Both men have unpublished telephone numbers and could not immediately be reached for comment Tuesday.

The court appointed a guardian to represent the interests of any unborn adopted or biological children who might have an interest in Anna Child Bird’s trust. Steven Rosenthal, an attorney for the guardian, said he argued that the 2009 amendment should apply retroactively.

“Our argument was to say that this law fostered an important public interest in putting biological and adopted children on equal footing to avoid situations where siblings were being treated unequally based solely on their birth status,” Rosenthal said.

The SJC said that more than 50 years separated the passage of the 1958 amendment — which equalized adopted and biological children only in wills executed after that — and the 2009 amendment, which made that rule retroactive, giving families time “to make compensatory estate plans in order to correct any inequalities” that arose from the exclusion of adopted descendants.

The court noted that in 1981, Julia Bird, the grandmother of Rachel, Matthew and Marten Bird, created a trust in which Marten and Matthew were named as beneficiaries, but Rachel was excluded.

“The opportunity for compensatory planning created by this time gap is illustrated by this case,” the court wrote.

Attribution:

Mass. court says new law can’t apply to old wills
Denise Lavoie
August 28, 2012
Boston.com
http://www.boston.com/news/local/massachusetts/articles/2012/08/28/mass_court_says_new_law_cant_apply_to_old_wills/