Lawyer's Weekly Newspaper (This Week's Decisions) dated 9/7/2020:
Where plaintiff trustees filed a complaint in Probate & Family Court seeking a declaration that each of the defendant beneficiaries had violated the trusts' no-contest clause, the trustees lacked standing because, as trustees of the trust, they had no personal interest in the trusts they were administering.
"This appeal arises from two related cases. (1) an action brought in the Suffolk County Probate and Family Court (Suffolk action) by the plaintiffs, Daniel B. Capobianco and Charles I. DiSchino (trustees), as the trustees of the Robert L. and Dorothy M. DiSchino Living Trusts (trusts), seeking a declaration that each of the defendants (as beneficiaries) had violated section 17.03 of the trusts' no contest clauses; and (2) an equity suit relating to the trusts brought solely by Dennis M. DiSchino in the Norfolk County Probate and Family Court (Norfolk action), seeking to, among other things, oust the trustees, appoint himself as the singluar trustee, enjoin the trustees from depleting monies from the trusts, and acquire an accounting of the trusts.
"On October 11, 2017, the cases, were heard together before a judge of the Probate and Family Court in the fiduciary litigation session. In ruling on the cross motions for summary judgment filed in the Suffolk action, the judge declared that only Dennis had violated the no contest clause of the trusts, and she awarded a portion of the trustees' requested attorney's fees. Because the parties had agreed that any decision issued on the corss motions for summary judgment in the Suffolk action relating to the no contest clause issue would equally apply to the Norfolk action the judge dismissed Dennis's equity complaint in the Norfolk action. On appeal, Dennis contends that (1) the trustees lacked standing to bring the Suffolk action; (2) the judge erred in granting summary judgment in the trustee's favor, and in declaring that Dennis had triggered the trusts' no contest clause - and, consequently, that she erred in dismissing the Norfolk action based on the violation of the no contest clause and (3) the judge abused her discretion in ordering Dennis to personally reimburse the trusts the amount awarded the trustees in attorney's fees in the Suffolk action.
"We agree with Dennis that the trustees lacked standing to bring the Suffolk action and, therefore, we vacate the summary judgement in their favor. In addition, we vacate the consolidated order awarding attorney's fees in the Suffok action. Although the judge did not have jurisdiction to reach the issue of the no contest clause in that action, as the identifical issue was presented in the Norfolk action and the parties agreed that the judge's determination of the issue would apply to both actions, we address the issue and conclude that the judge did not err in holding that Dennis's filing of the Norfolk action triggered the no contest clause. Accordingly, we affirm the dismissal of the Norfolk action."
