T&E Litigation Update – Ajemian v. Yahoo! Inc., Coyne v. Nascimento and Germain v. Girard

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Author:
Mark E. Swirbalus, Esq.Day Pitney LLP

The T&E Litigation Update is a recurring column summarizing recent trusts and estates case law. If you have questions about this update or about T&E litigation generally, please feel free to e-mail the author by clicking on his name above.

Ajemian v. Yahoo! Inc.

In Ajemian v. Yahoo! Inc., Case No. 09E-0079-GC1 (Nov. 10, 2010), the Norfolk County Probate and Family Court (Casey, J.) addressed the question of whether the administrators of an estate could access the decedent’s e-mail account with Yahoo, including all of the decedent’s e-mails. Yahoo filed a motion to dismiss the administrator’s complaint in equity, arguing, inter alia, (1) that the forum selection clause in the “Terms of Service” contract between the decedent and Yahoo requires the action to be brought in California, (2) that the one-year limitations period set forth in the contract had expired, and (3) that the administrators had failed to state a claim upon which relief can be granted because the private e-mails in the decedent’s Yahoo account are not property of the decedent’s estate.

The Court granted Yahoo’s motion to dismiss based on the forum selection clause. The Court explained that these clauses are to be enforced in Massachusetts if (1) doing so is fair and reasonable, (2) the contract was not affected by fraud, undue influence or a disparate bargaining position, and (3) enforcement would not contravene a strong public policy of Massachusetts. Regarding online contracts in particular, the Court explained that courts elsewhere have applied traditional principles of contract law and determined whether the plaintiff had both reasonable notice of the online contract and manifested assent to its terms. Here, the Court rejected the administrators’ argument that forcing them to travel to California to litigate would be oppressive. Mere inconvenience and additional expense are not enough, especially where it may be assumed that the contracting party had received consideration for this inconvenience and expense. Moreover, the Court found it significant that the administrators’ legal remedies would not be reduced in California, because both Massachusetts and California consider the same principles in measuring fairness and reasonableness. The fact that the decedent may not have actually read the Yahoo contract was of “no consequence,” because the decedent was free to find another no-cost e-mail provider.

Given the enforceability of the forum selection clause, the Court held that the California court should determine when the one-year limitations period in the contract began running and whether it had expired. The Court likewise held that the “seminal issue” of whether the decedent’s e-mail accounts are property of his estate or Yahoo should also be resolved by the California court.

Coyne v. Nascimento

In Coyne v. Nascimento (Case No. 10-P-12, 2010 Mass. App. Unpub. LEXIS 1251 (Nov. 19, 2010)), a decision issued pursuant to Rule 1:28, the Appeals Court affirmed summary judgment against the plaintiff on statute of limitations grounds.

In August 2003, the plaintiff brought a complaint in equity in probate court against the defendant, who was the decedent’s attorney-in-fact, claiming that the defendant had breached her fiduciary duties by transferring certain securities and real estate to herself shortly before the decedent’s death in 2002. Then, in October 2006, the plaintiff filed a separate action in superior court against the defendant, claiming that the defendant had tortiously interfered with the plaintiff’s expectancy.

The Court held that the claim for tortious interference with expectancy was barred by the three-year limitations period pursuant to G.L. c. 260, § 2A, because the superior court action was filed more than three years after the probate court action. As the complaint in equity in probate court established, the plaintiff had actual knowledge of the facts underlying the tort claim. Actual knowledge was required because the defendant’s alleged interference with expectancy arose from her breach of fiduciary duty.

The Court also held that the claim was not tolled during the pendency of the probate court action under the doctrine of equitable tolling. The plaintiff could have simultaneously brought the superior court action and the probate court action and then requested a stay of the superior court action or an interdepartmental assignment or consolidation. “Probate proceedings do not delay the occurrence of the injury or the accrual of the claim; rather, probate proceedings operate to fix the extent of the injury. Until the end of probate, the precise value of a plaintiff’s expectancy naturally remains uncertain. But our law rejects this uncertainty as a reason to toll the statute of limitations.”

Germain v. Girard

In Germain v. Girard (Case No. 09-P-1710, 2010 Mass. App. Unpub. LEXIS 1167 (Oct. 28, 2010)), a decision issued pursuant to Rule 1:28, the Appeals Court addressed an award of legal fees pursuant to G.L. c. 215, § 39A.

This is the second decision issued by the Appeals Court in this case. The first decision (Germain v. Girard, 72 Mass. App. Ct. 409 (2008)) concerned the probate court’s approval and allowance of a will that was executed by the decedent in 2004, shortly before his death. The probate court had rejected a claim that the will was the product of undue influence. The Appeals Court reversed this ruling and remanded the case to the probate court with instructions that the burden of proof on the undue influence claim should have been shifted to the petitioner, who is the decedent’s stepdaughter, because her husband stood in a fiduciary relationship with the decedent and indirectly benefited from the will.

After a bench trial on remand, the probate court ruled that the stepdaughter had met her burden of proving that her husband had not unduly influenced the decedent. The Appeals Court affirmed.

The Appeals Court also affirmed the probate court’s allowance of the stepdaughter’s motion for legal fees pursuant to G.L. c. 215, § 39A. Section 39A authorizes the probate court to award an attorney compensation and reimbursement for legal services upon a showing that the services “conferred a benefit upon the estate, and ‘benefit conferred’ means assistance in ‘creating, preserving, or increasing the estate.’” Because the work of the stepdaughter’s lawyer preserved the decedent’s will, the Court held that a benefit was conferred on the estate and that the lawyer was entitled to compensation under the statute.