R.I.P., Licorice: The Importance of Record-Keeping
Licorice was a Cocker Spaniel. He predeceased his owner, Theresa Jablonski. And therein lies the problem.
High-stakes probate litigation can turn on the presence or absence of evidence of a testator’s actual wishes. For charities, this kind of proof will typically be found in donor-related files.
Ms. Jablonski’s will provided that at her death, her assets were to pass to the Licorice Testamentary Trust, for the care, feeding, and grooming of its namesake. When Licorice expired, the trustees had the discretion to make a charitable gift with the remainder. No specific charity was named.
Owing to Licorice’s earlier-than-expected demise, the pet trust was never created. The trustees planned to make the charitable gift immediately under the doctrine of “acceleration of remainders.” Ms. Jablonski’s heirs (those who would take under the rules of intestacy) argued that their relative’s charitable gift had been contingent on Licorice’s survival and that the estate should pass immediately to them. The Massachusetts Supreme Judicial Court was sympathetic to that view, but concluded that Ms. Jablonski’s intentions were murky at best. It therefore ordered further discovery on the issue of whether the testator desired to make a charitable bequest irrespective of the timeline of Licorice’s life.
At this writing, discovery is proceeding. Were a charity to surface with (for example) a recent communication with Ms. Jablonski that suggested her intention to benefit a specific organization, that evidence would almost certainly defeat the claim of the heirs. In addition, it is hard to imagine that the trustees would bestow a gift on a charity other than the one chosen by the testator.
The moral of the story? Records made and retained during bequest cultivation can turn the tide in probate litigation. Record-keeping can be a burden, but one that is wisely borne. Matter of the Estate of Jablonski, _____N.E.3d____ (Mass. 2023).
(This article was originally published on LinkedIn on September 27, 2023.)