SJC Strikes Down Law Extending Benefits of Pre-1958 Trusts to Adopted Children

Anderson v. BNY Mellon, N.A., et al.

The Supreme Judicial Court recently declared Chapter 524 of the Acts of 2008 unconstitutional. Although the intent of the Legislature was admirable, it would have effectively rewritten the terms of testamentary trusts and threatened property rights of beneficiaries.

Since 1958, all adopted children have been presumed descendants under the law of wills and trusts. Prior to 1958, the presumption did not exist and adopted children were not deemed descendants under the law. Chapter 524 attempted to apply the presumption of equality of adopted children to wills executed prior to 1958, affecting the property rights of numerous beneficiaries without due process.


Anna Child Bird created her will on December 31, 1941. The will created, on her death, a trust (ACB trust) benefiting her son, Charles Sumner Bird, Jr. (Charles Jr.); Charles Jr.’s wife, Julia Bird (Julia); her grandsons, Charles Sumner Bird, III (Charles III), David, and Christopher Bird (Christopher); and the issue of her son and grandsons.

Charles III had one daughter (Lisa), David had two adopted sons (Marten and Matthew). Lisa received her father’s interest upon his death; Marten and Matthew were excluded from receiving their father’s interest as a result of their adopted status. Even though Marten and Matthew were born long after Anna’s death, Anna did not include potentially adopted children in her will.

On July 19, 2010, a few weeks after the effective date of the 2009 amendment, the plaintiff received a notice from the defendant, BNY Mellon, N.A., the trustee of the ACB trust (trustee). The notice informed her that in light of the 2009 amendment, Marten and Matthew were now considered “issue” of Charles Jr. for purposes of the ACB trust and were therefore income beneficiaries under the trust.


Prior to 1958, adopted children were not deemed descendants under the law. Thus, if a testator sought to include adopted children in a will, they had to specify their intention of including adopted children into their will. A failure to do so excluded the adopted child from a share of the estate. It was unduly harsh on adopted children and frequently resulted in unintended consequences.

In 1958, the Massachusetts Legislature adopted G.L. c. 210 § 8 which changed the law to create a presumption that adopted children were “issue.”[2]Although the testator was still free to exclude the adopted child, the presumption eliminated the possibility of an adopted child inadvertently being left out of the estate for the testator’s failure to specifically include them.

Chapter 524 attempted to extend that presumption (that adopted children be included as descendants) to all pre-1958 wills. Although granting adopted children equal rights is noble, Chapter 524 retroactively applies the law, disrupting the legal advice had given their clients, and creating issues of due process and equal protection under the law.

The competing interests of allowing adopted children equal rights as natural-born children on the one hand and creating uncertainty by disrupting legal expectations on the other, are what is at stake.

The Attorney General, arguing in support of 524, asserts that the law was simply a procedural rule allowing a more accurate reflection of the intent of a testator in including adopted children. Other jurisdictions have taken similar actions.[3]

This procedural rule, however, flies in the face of years of legal advice attorneys had given clients prior to 1958, and could affect property rights moving forward. As Lisa Goodheart of the BBA put it: “[S]uch retroactive changes undermine the ability of trust settlors, fiduciaries, beneficiaries, and others to rely on established principles of construction. Settlors and their attorneys may rely on then-effective default presumptions in preparing and settling cases.”[4]

Moreover, a retroactive application of the law runs the risk of redistributing property rights without due process of law, a clear violation of art. 10 of the Massachusetts Declaration of Rights.[5]


By striking down Chapter 524, the SJC prevented the retroactive application of presumptions and ensured that the property rights of beneficiaries will not be infringed upon without due process. Although an admirable attempt to eliminate a presumption against including adopted descendants in an estate, a retroactive application of a presumption is unconstitutional and disruptive to legal practice.


[2] In post-1958 testamentary instruments, the word “child,” or its equivalent, was defined to include an adopted child regardless whether adopted by the settlor, grantor, or testator, unless the instrument indicated otherwise. See Watson v. Baker, 444 Mass. 487, 492 (2005)




Proposed Model Jury Instructions Address The Use of Social Media by Juries


It was simply a matter of time before the courts caught up with the rap. Inappropriate use of social media by jurors, whether to disseminate or gather trial information, has been a recent source of controversy within the legal community.

A juror communicating with others about a case makes that juror susceptible to outside opinions and influence, not to mention potentially compromising key elements of the case. Furthermore, a juror may obtain inaccurate information which taints their judgment. The concept of “due process,” which is central to our judicial system, only works effectively after judges and attorneys have had a chance to thoroughly litigate the evidence offered before presenting it to a jury, and that juror limits their opinion to the evidence presented in court.

The Federal Judicial Conference Committee recently revised the Model Jury Instructions to expand and elaborate on the ban of a juror’s use of social media to communicate about a case while that case is still ongoing.

“You may not communicate with anyone about the case on your cell phone, through email, Blackberry, iPhone, text messaging, or on Twitter, through any blog or website, including Facebook, Google+, My Space, LinkedIn, or YouTube. You may not use any similar technology of social media, even if I have not specifically mentioned it here.”

The majority of judges follow the model jury instructions. Those that do not directly utilize the model jury instructions still clearly prohibit the use of social media in their instructions.


Jurors are instructed that they must decide a case based solely on the evidence presented in the courtroom. There are strict prohibitions against communicating with others about the case prior to deliberations or seeking information outside of the courtroom. The emergence of social media websites and the wide-spread use of smart phones have made it easier for jurors to communicate with non-jurors about a case.

Despite the ease of information sharing, thus far, it does not appear that a juror’s use of social media to communicate information about a case is a common occurrence. Based on a sample of 508 judges, only 30 (or 6%) reported an instance of a juror using social media inappropriately[1]. The types of communication reported have included a juror “friending” or attempting to “friend” a participant in the case; or a juror communicating directly with a participant in the case. Judges’ responses have varied depending on the circumstances, mainly, the extent of the communication. A small percentage have declared mistrials, most have removed the juror or warned the juror. In one instance, a juror was held in contempt of court; in another, a juror was fined by the court.

It is important to note the difficulty in monitoring a juror’s actions. Over 45% of judges sampled indicated that they have no way of knowing the success of their instructions.[2] The Model Jury Instructions rely in-part on other jurors to report inappropriate communication of their fellow juror. This presents practical difficulties as a juror’s social media activity may be private and an attorney, judge or fellow juror will likely be outside of their social network.


Although the free flow of information raises the ease in which a juror may inappropriately communicate with others about a case, thus far, it has not raised the likelihood of such an occurrence. For the most part, jurors still abide by jury instructions. Nevertheless, judges can further safeguard a defendant’s right to a fair trial by taking preventive actions, such as: following the model jury instructions; explaining to jurors, in plain language, the reasons for the social media ban; reminding jurors of the social media ban both before the trial and before the deliberations; alerting the jury about the consequences, both personally and for the case, for not abiding by the ban; and, if necessary, confiscating electronic devices during deliberations and/or before the start of each day of trial.

Moreover, if a judge learns or even suspects of inappropriate communications via social media by one of the jurors, the judge must immediately investigate the communication and ascertain the damage to ensure a fair trail. Finally, attorneys must also be aware of the social media activity of jurors to a reasonable extent.

[1] “Juror’s Use of Social Media During Trials and Deliberations: A Report to the Judicial Conference Committee on Court Administration and Case Management.” Meghan Dunn, Federal Judicial Center. November 22, 2011.$file/dunnjuror.pdf