NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
24-P-4
IN THE MATTER OF THE ESTATE OF JULIA ELISABETH RICE.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
A single justice of this court granted Catherine J. Cahners
leave to file an interlocutory appeal of a Probate and Family
Court judge's order. That order allowed Susan H. Rice, sister
of the decedent, Julia E. Rice, and special personal
representative (SPR) of her estate, to waive the decedent's
attorney-client privilege for purposes of the SPR's wrongful
death action against Cahners and others on behalf of the estate.1
We conclude that Cahners does not have standing to pursue this
appeal, which must therefore be dismissed. We note that if
Cahners did have standing, we would affirm the order.
1Cahners also appealed from the order disqualifying a particular law firm from representing her. See Tran v. Liberty Mut. Group, Inc., 490 Mass. 1001, 1001 n.2 (2022). Cahners has made no arguments on that issue, so we affirm that order. Background. The underlying facts and claims need not be
described in detail. It suffices to say that the decedent had
named Cahners, her decluttering contractor and later, friend, as
cotrustee of the decedent's revocable trust. The decedent also
nominated Cahners to serve as personal representative to
administer her estate. Cahners is alleged to have assisted the
decedent in taking her own life.
After the probate judge appointed the decedent's sister as
SPR, the SPR filed a wrongful death action in Superior Court
against Cahners and others. Having reason to believe that the
decedent's law firm might have information regarding the
circumstances of her death, the SPR served a subpoena on the
firm for documents relating to its representation of the
decedent. Cahners and the firm moved to quash the subpoena.
Before the Superior Court judge ruled on the motion to quash,
the probate judge issued an extension of the SPR order but
specified that "the [SPR] does not have the court's authority to
waive the [d]ecedent's attorney client privilege." The Superior
Court judge then issued an order quashing the subpoena on the
ground that, although an SPR may generally have authority to
waive the privilege, in this case the probate judge had
"specifically and unequivocally curtail[ed] [the SPR's]
authority."
2 All defendants in the wrongful death action then moved for
judgment on the pleadings; as relevant here, the Superior Court
judge denied the motion as to Cahners individually. The SPR
then moved to vacate the restriction barring her from waiving
the decedent's attorney-client privilege. The probate judge
allowed the motion, and this appeal by Cahners followed.
Discussion. The SPR asserts that Cahners lacks standing to
pursue this appeal. We agree. "We treat standing as an issue
of subject matter jurisdiction." Ginther v. Commissioner of
Ins., 427 Mass. 319, 322 (1998). "The issue of standing may be
raised at any time." Matter of the Receivership of Harvard
Pilgrim Health Care, Inc., 434 Mass. 51, 56 (2001). Only "[a]
person aggrieved by an order . . . of a probate court" may
appeal. G. L. c. 215, § 9. "Under that statute a person is
aggrieved if some pecuniary interest or personal right of
[theirs] has been adversely affected, or if some public or
official duty has been restricted or impaired by [the probate
court's] order, decree or denial." Altshuler v. Minkus-Whalen,
31 Mass. App. Ct. 937, 938 (1991), quoting McKay v. Audubon
Soc'y, Inc., 318 Mass. 482, 484 (1945).
Cahners argues that as a trustee of the decedent's trust,
she is an "interested person" pursuant to G. L. c. 190B,
§ 1-201 (24), and, as such, has standing to pursue this appeal.
Section 1-201 (24) states that an interested person includes
3 those "having a property right in or claims against a trust
estate or the estate of a decedent . . . . It also includes
persons having priority for appointment as personal
representative, and other fiduciaries representing interested
persons." G. L. c. 190B, § 1-201 (24). Cahners, however, does
not address this court's decision in Estate of Birkenfeld, where
we held that being an "interested person" under G. L. c. 190B,
§ 1-201 (24), entitles one to notice but does not displace the
common-law requirements of standing. Estate of Birkenfeld, 103
Mass. App. Ct. 628, 628 (2023). In light of that decision, even
if Cahners is an interested person under the statute, that is
insufficient to confer standing to appeal. Cahners must instead
qualify as a "person aggrieved" under G. L. c. 215, § 9.
Cahners claims that as a trustee of the decedent's trust,
she is a person aggrieved. She contends that it is her
appointed function as a trustee to execute the intent of the
decedent by restricting the SPR's involvement in the decedent's
estate. Cahners claims she held the authority to waive the
decedent's attorney-client privilege until the probate judge
granted the SPR that authority.
General Laws c. 203E, § 816, describes the powers of
trustees, most of which are directly related to the
administration of trust assets. We see nothing in § 816
granting a trustee broad power to execute the intent of a
4 decedent generally.2 Although generally a trustee may "prosecute
or defend an action, claim or judicial proceeding . . . to
protect trust property and the trustee in the performance of the
trustee's duties," G. L. c. 203E, § 816 (24), Cahners is not
doing so here. Nor has she shown how the decedent's trust could
be negatively affected by the SPR's wrongful death action. If
anything, the SPR's successful prosecution of that action could
add assets to the estate, and thus potentially to the trust,
from a beneficial settlement or an award of damages.
Additionally, the SPR has not depleted estate or trust assets by
prosecuting that action, because she has funded it personally.
In short, Cahners has not shown how the SPR's prosecution of the
wrongful death action confers standing on Cahners in her
capacity as a trustee of the decedent's trust.
Nor does Cahners have standing as the personal
representative of the estate. Although the decedent nominated
her as such, she was never appointed by the judge, see G. L.
c. 190B, § 3-103, and so she has no powers or duties in that
capacity. Finally, Cahners's status as a defendant in the
2 We recognize that "[a] trustee, without authorization by the court, may exercise . . .
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NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
24-P-4
IN THE MATTER OF THE ESTATE OF JULIA ELISABETH RICE.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
A single justice of this court granted Catherine J. Cahners
leave to file an interlocutory appeal of a Probate and Family
Court judge's order. That order allowed Susan H. Rice, sister
of the decedent, Julia E. Rice, and special personal
representative (SPR) of her estate, to waive the decedent's
attorney-client privilege for purposes of the SPR's wrongful
death action against Cahners and others on behalf of the estate.1
We conclude that Cahners does not have standing to pursue this
appeal, which must therefore be dismissed. We note that if
Cahners did have standing, we would affirm the order.
1Cahners also appealed from the order disqualifying a particular law firm from representing her. See Tran v. Liberty Mut. Group, Inc., 490 Mass. 1001, 1001 n.2 (2022). Cahners has made no arguments on that issue, so we affirm that order. Background. The underlying facts and claims need not be
described in detail. It suffices to say that the decedent had
named Cahners, her decluttering contractor and later, friend, as
cotrustee of the decedent's revocable trust. The decedent also
nominated Cahners to serve as personal representative to
administer her estate. Cahners is alleged to have assisted the
decedent in taking her own life.
After the probate judge appointed the decedent's sister as
SPR, the SPR filed a wrongful death action in Superior Court
against Cahners and others. Having reason to believe that the
decedent's law firm might have information regarding the
circumstances of her death, the SPR served a subpoena on the
firm for documents relating to its representation of the
decedent. Cahners and the firm moved to quash the subpoena.
Before the Superior Court judge ruled on the motion to quash,
the probate judge issued an extension of the SPR order but
specified that "the [SPR] does not have the court's authority to
waive the [d]ecedent's attorney client privilege." The Superior
Court judge then issued an order quashing the subpoena on the
ground that, although an SPR may generally have authority to
waive the privilege, in this case the probate judge had
"specifically and unequivocally curtail[ed] [the SPR's]
authority."
2 All defendants in the wrongful death action then moved for
judgment on the pleadings; as relevant here, the Superior Court
judge denied the motion as to Cahners individually. The SPR
then moved to vacate the restriction barring her from waiving
the decedent's attorney-client privilege. The probate judge
allowed the motion, and this appeal by Cahners followed.
Discussion. The SPR asserts that Cahners lacks standing to
pursue this appeal. We agree. "We treat standing as an issue
of subject matter jurisdiction." Ginther v. Commissioner of
Ins., 427 Mass. 319, 322 (1998). "The issue of standing may be
raised at any time." Matter of the Receivership of Harvard
Pilgrim Health Care, Inc., 434 Mass. 51, 56 (2001). Only "[a]
person aggrieved by an order . . . of a probate court" may
appeal. G. L. c. 215, § 9. "Under that statute a person is
aggrieved if some pecuniary interest or personal right of
[theirs] has been adversely affected, or if some public or
official duty has been restricted or impaired by [the probate
court's] order, decree or denial." Altshuler v. Minkus-Whalen,
31 Mass. App. Ct. 937, 938 (1991), quoting McKay v. Audubon
Soc'y, Inc., 318 Mass. 482, 484 (1945).
Cahners argues that as a trustee of the decedent's trust,
she is an "interested person" pursuant to G. L. c. 190B,
§ 1-201 (24), and, as such, has standing to pursue this appeal.
Section 1-201 (24) states that an interested person includes
3 those "having a property right in or claims against a trust
estate or the estate of a decedent . . . . It also includes
persons having priority for appointment as personal
representative, and other fiduciaries representing interested
persons." G. L. c. 190B, § 1-201 (24). Cahners, however, does
not address this court's decision in Estate of Birkenfeld, where
we held that being an "interested person" under G. L. c. 190B,
§ 1-201 (24), entitles one to notice but does not displace the
common-law requirements of standing. Estate of Birkenfeld, 103
Mass. App. Ct. 628, 628 (2023). In light of that decision, even
if Cahners is an interested person under the statute, that is
insufficient to confer standing to appeal. Cahners must instead
qualify as a "person aggrieved" under G. L. c. 215, § 9.
Cahners claims that as a trustee of the decedent's trust,
she is a person aggrieved. She contends that it is her
appointed function as a trustee to execute the intent of the
decedent by restricting the SPR's involvement in the decedent's
estate. Cahners claims she held the authority to waive the
decedent's attorney-client privilege until the probate judge
granted the SPR that authority.
General Laws c. 203E, § 816, describes the powers of
trustees, most of which are directly related to the
administration of trust assets. We see nothing in § 816
granting a trustee broad power to execute the intent of a
4 decedent generally.2 Although generally a trustee may "prosecute
or defend an action, claim or judicial proceeding . . . to
protect trust property and the trustee in the performance of the
trustee's duties," G. L. c. 203E, § 816 (24), Cahners is not
doing so here. Nor has she shown how the decedent's trust could
be negatively affected by the SPR's wrongful death action. If
anything, the SPR's successful prosecution of that action could
add assets to the estate, and thus potentially to the trust,
from a beneficial settlement or an award of damages.
Additionally, the SPR has not depleted estate or trust assets by
prosecuting that action, because she has funded it personally.
In short, Cahners has not shown how the SPR's prosecution of the
wrongful death action confers standing on Cahners in her
capacity as a trustee of the decedent's trust.
Nor does Cahners have standing as the personal
representative of the estate. Although the decedent nominated
her as such, she was never appointed by the judge, see G. L.
c. 190B, § 3-103, and so she has no powers or duties in that
capacity. Finally, Cahners's status as a defendant in the
2 We recognize that "[a] trustee, without authorization by the court, may exercise . . . powers conferred by the terms of the trust," and certain additional powers "except as limited by the terms of the trust." G. L. c. 203E, § 815. But Cahners has not provided us with the decedent's trust documents and she makes no argument that the terms of the trust strengthen her claim to standing.
5 wrongful death action does not give her standing to contest the
SPR's authority to waive the decedent's attorney-client
privilege. The waiver would have at most an indirect and
speculative effect on Cahners's interest in that action, and
such effects do not confer standing to appeal the order. See
Ginther, 427 Mass. at 323; Altshuler, 31 Mass. App. Ct. at 938.
We note, nonetheless, that were the appeal properly before
us, we would affirm the order. Generally, a decedent's
attorney-client privilege may be waived by the personal
representative of the decedent's estate. See Matter of John Doe
Grand Jury Investigation, 408 Mass. 480, 483 (1990). Cahners
does not contend that an SPR lacks such authority or cannot
obtain it from the appointing court. See generally G. L. c.
190B, §§ 3-617 (a), 3-715 (a) (22), 3-715 (b). Nor was the
probate judge barred from revisiting her previous ruling denying
the SPR such authority. "Though there is no duty to reconsider
a case, an issue, or a question of fact or law, once decided,
the power to do so remains in the court until final judgment or
decree." Salter v. Scott, 363 Mass. 396, 401-402 (1973),
quoting Peterson v. Hopson, 306 Mass. 597, 601 (1940). Finally,
despite Cahners's unsupported assertion to the contrary, the
probate judge, in deciding whether to allow waiver of the
privilege, could reasonably consider the Superior Court judge's
6 ruling that the wrongful death action had at least sufficient
merit to survive Cahners's motion for judgment on the pleadings.
Conclusion. We dismiss the appeal from the order dated
July 11, 2023, allowing the SPR to waive the decedent's
attorney-client privilege. We affirm the order dated July 11,
2023, disqualifying Cahners's then-counsel from representing her
in the Probate and Family Court proceedings. See note 1, supra.
So ordered.
By the Court (Sacks, Shin & Hershfang, JJ.3),
Clerk
Entered: December 3, 2024.
3 The panelists are listed in order of seniority.