Granting Property While Also Reserving a Power of Appointment Recent Case Law

In a recent case, the Massachusetts Appeals Court reviewed whether a testator may grant property while reserving to herself a power of appointment over the same property. Skye v. Hession involved a testator who granted her home to her three daughters and her son-in-law in equal shares, while reserving for herself a life estate, which allowed her to live in the home while she was alive. The testator’s intent in doing this was to avoid certain “spend-down” provisions or lien provisions of MassHealth, the Massachusetts Medicaid program, which currently has a “look-back” period of five years.

In the deed, the testator also reserved for herself a special power of appointment, which allowed her to appoint the property to any person except herself, her creditors, her estate, or her estate’s creditors. This option was exercisable by either deed or will.

Two years later, the testator executed a new will, whereby she decided that her daughters and son-in-law should receive unequal shares of her property. She left one daughter (the plaintiff in the case) 5% of the property, reducing her share by exercising her power of appointment. The daughter sued, claiming that the power of appointment in the original deed was improper and void.

The Appeals Court ultimately sided with the defendants but acknowledged the plaintiff’s argument regarding the invalidity of the power of appointment. “We acknowledge the existence of some apparent tension between the grant of the remainder interests and the reservation of the power,” the Court noted. “The former granted the parties a present ownership interest, but the latter permitted Margaret to effectively terminate or alter those interests by exercise of the special power of appointment.”

The Court explained that interests are considered repugnant to one another where a grant of property includes two different conditions, the fulfillment of one of which breaching the other. However, the Court explained, that was not the case here: because the testator reserved for herself the power of appointment, she did not grant to the grantees a fee simple absolute—a grant with no limitations. Instead, she granted a fee simple defeasible, which is a lesser estate. “Because of the reservation of the life estate, the deed conveyed not present possessory estates but rather remainder interests; and, because of the reservation of the power, the remainder interests were defined, in part, by this limitation, and they were in the nature of fees simple defeasible,” the Court held. “Had the deed merely reserved to [the testator] a life estate, this, of course, would have been the case. Here, the additional reservation of the power of appointment resulted in a grant of a lesser estate.”

If you have any questions about issues of divorce, custody, or support, you may schedule a free consultation with our office. Call 978-225-9030 during regular business hours or complete our contact form online, and we will get back to you at our earliest opportunity.

Id., at 5-6.
Id., at 8.
Id., at 7.

I’ve Been Served with Divorce Papers…Now What?

If your spouse has filed for divorce in the Massachusetts Probate and Family Court, you have several options as to the next steps to take in the case. Consider the following options:

  • You may file an Answer to your spouse’s Complaint.

Your Answer is the official responsive pleading to your spouse’s allegations in his or her Complaint. In this document, you admit or deny each of the statements contained in the plaintiff’s Complaint.
According to the Massachusetts Rules of Domestic Relations Procedure, the defendant in his or her Answer “shall state in short and plain terms his defenses to such claim asserted and shall admit or deny the averments upon which the adverse party relies. If he is without knowledge or information sufficient to form a belief as to the truth of an averment, he shall so state and this has the effect of a denial.”
Under most circumstances, your Answer will be due 20 days from the date of service of process.
In your Answer, you may include affirmative defenses
Affirmative defenses include “accord and satisfaction, arbitration and award, assumption of risk, contributory negligence, discharge in bankruptcy, duress, estoppel, failure of consideration, fraud, illegality, injury by fellow servant, laches, license, payment, release, res judicata, statute of frauds, statute of limitations, waiver, and any other matter constituting an avoidance or affirmative defense.”

  • Under some circumstances, you may file a motion to dismiss.

Under Rule 12, this motion asks the Court to dismiss the claims against you. In a divorce claim, a motion may be filed for several reasons, including:
1. Lack of jurisdiction over the subject matter;
2. Lack of jurisdiction over the person;
3. Improper venue;
4. Insufficiency of process;
5. Insufficiency of service of process;
6. Failure to state a claim on which relief can be granted;
7. Failure to join a party under Rule 19;
8. Misnomer of a party;
9. Pendency of a prior action in a court of the Commonwealth.

For example, under the Rules, you may file a motion to dismiss if your domicile is disputed, if service of process was improper, or if there is a prior divorce claim already in effect. The documents you will need to file typically include: the motion, which asks the Court to dismiss the claim; a memorandum of law which serves as the legal support for your motion; and an affidavit where you include key facts in support of your motion, signed under oath and under the pains and penalties of perjury.
You should file any motions to dismiss prior to filing your Answer or any other responsive pleading.

  • You may file a counterclaim or a cross-complaint

A counterclaim is the defendant’s claim against the plaintiff. You may file a counterclaim in your Answer; if you designate it as a counterclaim, no entry fee should be due. Your counterclaim should allow you to bring up claims for divorce, spousal support, property division, custody, and child support, among others.

In the alternative, you may choose to omit counterclaims and instead file a cross-complaint for divorce. According to the Rules, “In a contested action for divorce if the defendant upon payment of the proper entry fee and at any time prior to the conclusion of the hearing shall cause to be entered his or her cross-complaint for divorce, the court shall allow the entry of said cross-complaint after giving of such notice or service to the new defendant as the court, in its discretion, shall order.”

If you have any questions about issues of divorce, custody, or support, you may schedule a free consultation with our office. Call 978-225-9030 during regular business hours or complete our contact form online, and we will get back to you at our earliest opportunity.

Custody and the Religion of the Parents

Alba and Andrew are recently divorced after a decade of marriage. They have one child, Andy, and per the divorce decree, the share physical and legal custody. Alba is growing concerned, however—Andrew has recently joined a religious order which differs from Alba’s religion (and the religion in which Andy is being raised) and has talked extensively to Andy about his new religion during his parenting time. Alba is concerned about what she calls Andrew’s “indoctrination” of Andy into his religion. She wonders if the custody order will be modified based on her concerns.  

Unless Andy’s best interests are at stake, and unless Andrew’s conduct is detrimental to the minor child’s well-being, the answer is probably no. In order to resolve issues of custody, the court will determine what is in the best interests of the child. The court does not look at the interests of the parents, the “rights” of the parents, the preferences of the parents, or even the relative morality or lifestyles of the parents—unless it affects the welfare and best interests of the child.  

A landmark case is Felton v. Felton, where the mother brought a petition to modify visitation rights with the father, who had become a Jehova’s Witness. 6 The mother claimed that the father was “indoctrinating” the children in his religion and alienating them from her in the process. The trial court sided with the mother and modified visitation, and the father appealed. Transferring the case for direct review, the Supreme Judicial Court reversed the trial court’s decision, holding that the religion of the parents will only be a factor in custody and visitation disputes if it is proven to be injurious to the child. “There is clear error, for lack of foundation in the record, in the judge’s findings of a “deleterious effect” on the children and an “undermining” of the custodial relationship by reason of the father’s religious instruction or practice,” the Court held. 7 

In another case, parents with different religious beliefs were granted shared custody of the minor children. 8The father appealed, and the Supreme Judicial Court again granted direct appellate review. First, the Court held that there was no infringement of the parents’ rights to religious freedom: “Promoting the best interests of the children is an interest sufficiently compelling to impose a burden on the defendant’s right to practice religion and his parental right to determine the religious upbringing of his children.” 9 The Court also noted that the joint custody order was appropriate, despite the parents’ feelings that their religious differences cannot be worked out. “Although the judgment contemplates continued court involvement, it does not foster excessive government entanglement because the focus of any judicial inquiry will center on the emotional or physical harm to the children rather than the merit worthiness of the parties’ respective religious teachings,” the Court said. 10  

In another interesting case involving a contentious divorce between two devout Hindu parties, the father requested that he be allowed to perform a religious ritual on his daughter which involved the cutting and shaving of her hair. The mother opposed performing this ritual. The trial judge ordered that the ritual be postponed until the minor child reached an age where she would be able to make the decision for herself as to whether she wanted to engage in the ritual. The Appeals Court affirmed. The Court noted the competing fundamental right interests involved: the father’s right to practice his religion versus the mother’s right to direct the upbringing and religious life of her child. The Court noted that the trial court’s decision did not infringe upon the father’s religious freedoms. 11 


If you have any questions about issues of divorce, custody, or support, you may schedule a free consultation with our office. Call 978-225-9030 during regular business hours or complete a contact form here, and we will get back to you at our earliest opportunity. 

Case of the Week: Making an Abuse Protection Order Permanent

When would a judge make an abuse prevention order permanent and can it be extended purely on past abuse? The recent Massachusetts case of McIsaac v. Porter answered that question.[1]

In that case, the plaintiff and defendant had dated for about six years and lived together for about six months. The defendant, who suffered from depression and drank alcohol to escape, had a tendency to become aggressive and violent with the plaintiff–for example, dragging her across the room to prevent her from leaving, breaking her glasses after grabbing them from her face, and choking her, causing bruises on her collar bone and arms.

On one night in December 2013, the defendant became angry and lunged at the plaintiff, choking and punching her and asking her if she wanted to die that night. The defendant caused the plaintiff to have bruises on her back, sides, chest, arms, and face. The plaintiff filed for an abuse prevention order under Massachusetts General Laws chapter 209A in January of 2014, which was granted ex parte and subsequently extended twice. As a result of the incident, the defendant was charged with assault and battery and received a continuance without a finding, with a five-year probationary period.

In January of 2015, the plaintiff sought to make the abuse prevention order permanent. She testified that she continued to remain scared and in fear of the defendant, and that she desired an extra measure of safety and protection from him. She noted that the parties went to the same out-of-state college and both continued to be involved with the same alumni network. The judge granted the permanent abuse prevention order, finding that there was a past incident to be categorized as “very serious.”

The defendant appealed, arguing that the order was improper because it was entirely based on past abuse, with no finding that the plaintiff currently had any reasonable fear of imminent harm. The Appeals Court held that a judge may extend an abuse prevention order “where, as here, the judge finds that the victim is still reasonably suffering fear due to a past incident of serious physical abuse, regardless of whether the victim also reasonably fears imminent serious physical harm.” [2] The Court noted that an order may issue to protect a victim from the continuing impact of violence which was caused entirely in the past.

[1] McIsaac v. Porter, No. 16-P-135 (October 14, 2016-December 9, 2016)

[2] Id., at 2.