A husband has no claim to real estate held in a pre-1984 inter vivos trust by his now-deceased wife, even though the wife had maintained sole power over the trust assets and despite the fact that the same assets had been deeded to the wife outside the trust. Bongaards v. Millen (Mass. App. Ct., Suffolk, No. 99-P-1631, June 4, 2002).
In 1978, Jean Bongaards' mother, Josephine D'Amore, created a trust containing an apartment building, with herself as sole trustee and beneficiary during her life. Upon Mrs. D'Amore's death, Mrs. Bongaards would become the sole trustee and the beneficiary during her life. Shortly before her death in 1979, Mrs. D'Amore conveyed the same building to Mrs. Bongaards by a deed signed by her as an individual and running to Mrs. Bongaards as an individual. The 1979 deed made no reference to the trust. About ten days before her own death in 1996, Mrs. Bongaards changed the beneficiary to her sister, Nina Millen. In her last will, Mrs. Bongaards stated that she had intentionally made no provision for her husband.
Mr. Bongaards sought a determination that the real estate was a part of his wife's estate for purposes of his spousal right to claim under the estate (G.L.c. 191, § 15). Additionally, he sought a spousal share of a bank savings account that his wife maintained in trust. Mr. Bongaards argued, inter alia, that the conveyance of the real estate in 1979 effectively terminated the trust because it transferred the only trust asset, and that Mrs. Bongaards held such complete control over the trust property that it should be included in her estate under the principle of Sullivan v. Burkin, 390 Mass. 864 (1984). That decision held that Massachusetts residents may not disinherit their spouses by creating revocable trusts that give their estates to someone else. The court entered judgment against Mr. Bongaards and he appealed.
The Appeals Court of Massachusetts (Suffolk) affirms that the apartment building is not part of Mrs. Bongaards' estate. The court rules that because Mrs. Bongaards previously conveyed the property to the trust in 1978, the 1979 deed that purported to convey title from the same source (an earlier deed) could convey nothing and was thus a nullity. The court also rules that Sullivan is inapplicable because the trust came into existence before that decision. However, the court reverses on the matter of the bank savings account, ruling that because the account in its trust form was established after Sullivan, the principle of that decision governs.
Comment: This seems to us to be a narrow-minded decision. While the trust document itself is not included with the decision, it appears to be a nominee realty trust in which the beneficiary or beneficiaries control the disposition of the trust assets. The trustee acts merely as their agent. While the mother-in-law created the trust, at her death full control passed to her daughter. Her act of changing the schedule of beneficiaries 10 days before her death is no different from her creating a revocable trust 10 days before her death. It should come under the purview of Sullivan v. Burkin. It will be interesting to see what happens if Mr. Bongaards appeals the decision to Massachusetts' Supreme Judicial Court.
For the full text of this decision, go to: https://masslawyersweekly.com/fulltext-opinions/1990/01/01/bongaards-v-millen-et-al-2/
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