No Surviving Pet

The Massachusetts Supreme Judicial Court remanded a will contest

The decedent, Theresa A. Jablonski, executed a will that left her entire estate to a testamentary trust, pursuant to G. L. c. 203E, § 408, for the benefit of her fifteen year old cocker spaniel, Licorice, and any other pet she might have at the time of her death. According to the terms of the trust, after the death of all beneficiaries, the trustees were obligated to designate a charity to receive the remainder of any and all funds in the trustees’ control. At the time of the decedent’s death, however, neither Licorice nor any other pet survived the decedent. This case presents the issue whether the remainder of the decedent’s estate to charity is valid despite Licorice having predeceased the decedent or, alternatively, whether Licorice’s failure to survive the decedent renders the pet trust void, such that the decedent’s property is to pass through intestacy to the decedent’s heirs. Where we conclude that the provisions for Licorice in the testamentary trust lapsed, and where there exists a genuine issue of material fact whether there was a clear intention that the charitable remainder not be conditioned on Licorice’s survival of the decedent, the judge erred in awarding partial summary judgment. Accordingly, we vacate the decree and order, and we remand the matter for further proceedings.

Licorice had crossed the rainbow bridge approximately two years prior to Theresa’s passing

Here, extrinsic evidence is necessary to resolve the ambiguity whether, at the time of the making of the will, the decedent intended that the to-be-named charity was to receive the remainder notwithstanding Licorice’s failure to survive her. Thus, there exists a genuine issue of fact, such that the award of summary judgment was improper.

(Mike Frisch)