The Law Offices of Samuel S. Reidy Blog

Emily Misiaszek and her husband created an irrevocable trust during their lifetime, the corpus of which included their home.  The terms of the Irrevocable Trust granted the Misiaszeks the right, during their lifetime, a limited power of appointment to appoint all or any portion of the trust principal to a nonprofit or charitable organization over which they have no controlling interest.  When Ms. Misiaszek applied for MassHealth long-term care benefits, she was denied on the basis that the home was a countable asset.  The Massachusetts Office of Medicaid’s Board of Hearings affirmed MassHealth’s decision, but a Superior Court judge reversed the board’s ineligibility determination.
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One of the most powerful clauses in a will or a trust is the in terrorem clause, which is more commonly referred to as a “no-contest” clause.  In terrorem means “in fear” in Latin and is an appropriate name for the clause as if someone challenges a will or a trust with an in terrorem clause and the challenge is not successful, there can be dire consequences for the challenger.  Namely, a challenger to a will or trust with an in terrorem clause risks losing all of his or her rights and interest under a will or trust.

Almost a year ago, the Massachusetts Appeals Court ruled in the matter of Capobianco v. Dischino, Mass.
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A recent Supreme Judicial Court decision confirmed that MassHealth has a statute of limitations of three years from a beneficiary’s death to file its claim for reimbursement on the beneficiary’s estate or MassHealth’s Claim is completely barred.

The Court recently made this ruling In the Matter of Estate of Kendall, 486 Mass. 522 (2020).  In this matter, Jacqueline Ann Kendall died intestate on August 7, 2014.  At the time of her passing, Ms.
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Massachusetts wage and hours laws provide employers with guidance as to how, when, and how much workers must be paid.  One common issue that arises is when and what employees that resign or are terminated need to be paid.  Generally speaking, an employee is voluntarily quits or resigns may be paid on the next regular pay date after his or her last day of work but an employee who is involuntarily terminated must be paid in full on the day of discharge.  Failing to adhere to these rules can have significant consequences.

Massachusetts General Laws chapter 149 § 148 states “any employee discharged from such employment shall be paid in full on the day of his discharge.
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When Governor Charlie Baker prohibited restaurants from letting customers eat or drink indoors and ordered the temporary closure of “non-essential” businesses via Order No. 13 on March 23, 2020, it was known that there would be extensive implications of that decision for many businesses.  Some businesses have shuttered completely while others have successfully launched profitable curbside or take out businesses.  One issue that was not addressed in March of 2020 was what are the rights and responsibilities for landlords and tenants of commercial leases.  It took nearly a year, but the first major decision surrounding the issue was made on February 8, 2021.
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Testamentary Capacity

by Samuel S. Reidy, Esq.

February 18, 2021

Unfortunately, it has become an all-too-common story.  A loved one is stricken with dementia and during the period he or she does not have possession of all of their facilities, an estate planning change is suddenly made.  Sometimes this new (and often unexpected) estate planning means the changing of beneficiaries in a Will, or a new Health Care Proxy or Durable Power of Attorney being named, or the transfer of real estate.
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One of the most important parts of the discovery process in any claim or civil litigation are the depositions.  In a personal injury claim, the injured party is almost always deposed and the defendant is often deposed as well (unless liability is not disputed).  In an employment law claim, depositions can take place not only of the people directly involved in the claim, but often all of the employees of the company.  Any litigator will tell you the importance of depositions to a legal claim.  They can make or break a lawsuit, sometimes only with one wrong answer.
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Almost since the COVID-19 pandemic began, the question of whether or not a vaccination would be mandatory has been a regular part of public discourse.  On December 11, 2020, the Commonwealth of Massachusetts started distributing the Pfizer-BioNTech COVID-19 Vaccine and has pushed the conversation to the forefront.  Many people have expressed hesitation or outright disapproval of taking any vaccination for COVID-19.  However, it is likely that an employer will be able to require his or her employees to receive the vaccination as a condition of continued employment.

The precedent in the Commonwealth of Massachusetts was established in 1905.
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In Massachusetts, it is essential that individuals obtain sufficient insurance coverage in the event that they are injured in an accident caused by an uninsured or underinsured driver.  Specifically, under a standard auto insurance policy, Uninsured (UM) and Underinsurance (UIM) coverage provide the named insured as well as household members, operators, and passengers of an insured motor vehicle benefits in the event they are involved in an automobile accident with a driver that causes the accident but has no bodily injury insurance coverage or not enough insurance to cover your damages.  

In Massachusetts, it is mandatory for an insured to have limits of at least twenty thousand dollars ($20,000.00) per person and forty thousand dollars ($40,000.00) per accident for uninsured coverage.
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As hard it is to believe we are over seven months into the COVID-19 pandemic and the legal community is beginning to see some trends with regards to COVID-19 related litigation.  There are two trends in particular that should be noted: the increase in serious automobile accidents and the increase in lawsuits against individual owners and managers of corporations, as opposed to just the corporations themselves.

It has been pretty well established that traffic has decreased significantly since the first wave of shutdowns in March 2020, so it may surprise some that there has been an increase in serious automobile accidents since that time.  In fact, the number of motor vehicle fatalities per miles driven increased by fourteen percent in comparing March 2019 to March 2020 according to a National Safety Council report.  Since March 2020 there have been many serious accidents on the roadways despite a general decrease in the number of drivers.
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One of the three most basic estate planning documents is the health care proxy.  This is the document where an individual gives permission to another person to make health care decisions on their behalf in the event they are incapacitated or unable to make health care decisions for themselves.  This document is especially important in Massachusetts because under Massachusetts law, there is no identified law that allows for the appointment of a default surrogate under any circumstances.  That means that your spouse, parents, and children have no legal right to make health care decisions for you.

Massachusetts is in the minority with regards to the treatment of health care proxies.
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