Tag Archives: adopted children

Bird Decision is Another Victory for T&E Attorneys

Tuesday’s  SJC decision in Rachel A. Bird Anderson vs. BNY Mellon, N.A. trustee and others, helped reinforce our belief that there’s no one tool for achieving public policy goals. When we failed to secure the passage of legislation that would repeal an overly broad 2009 amendment to the adopted children statute yielding unintended consequences, we turned our energies to an amicus brief. Our brief identified the confusion resulting from the 2009 amendment; in its decision in Bird, the SJC provided essential clarification.

It’s rewarding to read the SJC’s decision on many levels.  It settles a family dispute, provides trustees with much needed assurances and also means that the BBA won’t need to re-file legislation we’ve supported since 2009.  The BBA’s bill, An Act to Repeal the Adopted Children Statute, was drafted as a statutory fix to the problem that the Bird decision just solved.

When this issue was first brought to our attention, the BBA worked quickly to file legislation that would repeal language that had broad and far reaching implications on trust instruments dealing with adopted children.  As we described in Issue Spot, the BBA succeeded in obtaining a one year postponement of the original effective date of this new law and has been working since then to repeal it.

This past legislative session, the BBA’s repeal of the adopted children statute became part of a number of pieces of legislation to address various trusts and estate problems.  These bills included a proposed Massachusetts Uniform Trust Code (MUTC), technical corrections to the Massachusetts Uniform Probate Code (MUPC), and an estate tax patch.  Now that the SJC has weighed in on the adopted children statute, we can claim victory for all but a small portion of our trusts and estates agenda. Earlier this summer Issue Spot reported on the passage of the MUTC and technical corrections to the MUPC.

Our success is particularly gratifying because it can be difficult to catch the attention of the Legislature on trusts and estates matters.  They aren’t splashy or as headline grabbing as, say, casinos or health care reform. Our dedicated and highly knowledgeable members deserve the credit for volunteering their time to testify, meet with legislators and draft impeccable amicus briefs. We will next focus our trusts and estates energies on the estate tax patch and any other emerging issues in this area.

– Kathleen Joyce
Director of Government Relations
Boston Bar Association
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BBA Files Amicus Brief on Adopted Children Statute

The latest BBA amicus brief was filed on Monday, April 30th in Rachel A. Bird Anderson v. BNY Mellon, N.A., et al.  The Bird case, currently before the Supreme Judicial Court (SJC), deals with ambiguities regarding adopted children as beneficiaries of a family trust.  The Bird case is an opportunity for the SJC to clarify estate planning law as it relates to Chapter 524 of the Acts of 2008.  This statute, which became effective on July 1, 2010, retroactively changed the understood rule of construction of terms like “child,” “grandchild” and “issue” to include adopted children, even for instruments created when the law did not include adopted children within those terms.

In its amicus, the BBA urges the SJC to rule on whether retroactive application of Chapter 524 (as currently interpreted) is constitutional and, if so, to provide guidance on the consequences for actions taken by fiduciaries relying on Chapter 524.

Filing amicus briefs is just one way that the BBA makes its views on matters of policy known.  We also draft legislation, comment on proposed government actions and legislative proposals developed by other groups, and publish reports and written statements.

The BBA gets several requests to file amicus briefs each year.  In the last three years we’ve filed four briefs.  However, we’ve received at least twice that many requests.  The BBA’s standard for filing an amicus brief or signing onto an amicus brief prepared by another entity is that the position sought to be advanced must relate to (a) the practice of law; or (b) the administration of justice – exceptions to this rule are considered on a case-by-case basis.  In the Bird case, the brief relates to “the practice of law.”

The BBA has been an amicus curiae in cases that have altered the policy landscape in Massachusetts and the United States.  Here are just some examples of our work in this area in the last few years:

  • Grutter v. Bollinger – The Michigan affirmative action case holding that race conscious admission policies are vital to integrating the legal profession.

Brief Background on the BBA’s Interest in the Bird Case

In May 2009, the BBA Council voted to support An Act to Repeal the Adopted Children’s Act which, if passed, would repeal Chapter 524 of the Acts of 2008 (as would a ruling by the SJC in the Bird case that Chapter 524 is unconstitutional).  During this current legislative session, the BBA filed An Act to Repeal the Adopted Children’s Act, known as H 2262.  H 2262, now under consideration by the Joint Committee on the Judiciary, would also provide that such repeal would not affect the validity of any action taken or distribution made pursuant to Chapter 524 while Chapter 524 was in effect.

While seeking a legislative fix, we learned of the Bird case.  The decision to file an amicus brief in this case came after a vetting process that began with debate and discussion in the steering committee for our Trusts & Estates Section.  The steering committee of the Trusts & Estates Section felt strongly that retroactive changes in the law which affect vested property interests, including beneficial interests in trust, raise serious constitutional concerns.  They requested the BBA’s Amicus Committee review and consider their request to file an amicus.

The BBA’s Amicus Committee, responsible for reviewing amicus requests and making sure that any potential brief fits into the BBA’s established criteria, discussed the request and also invited opposing counsel to provide input as to whether or not the BBA should weigh in on this issue.  In this situation the Amicus Committee decided to recommend to the BBA’s Executive Committee and Council that the BBA weigh in as amicus curiae in the Bird case.

The SJC is set to hear arguments on this issue on May 7th.

– Kathleen Joyce
Director of Government Relations
Boston Bar Association
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