DEAVEN A. SKYE
LISA A. HESSION & others.
Heard: November 18, 2016.
filed in the Worcester Division of the Probate and Family
Court Department on December 21, 2010.
case was heard by Lucille A. DiLeo, J.
P. Ford for the plaintiff.
Francis X. Small for the defendants.
Present: Vuono, Kinder, & Lemire, JJ.
appeal concerns the validity of a provision in a quitclaim
deed that reserved to the grantor, Margaret A. Hession, a
special power of appointment over her home (the property).
Margaret executed such a deed in which she granted the
property, in equal shares, to her three daughters and
son-in-law: the plaintiff, Deaven A. Skye; her sisters,
Melanie J. Hession and Lisa A. Hession, and Lisa's
husband, Ronald G. Stewart.,  Margaret later exercised the special
power of appointment to reduce Skye's interest in the
property to the advantage of the others. Upon Margaret's
death, Skye brought an action seeking a declaration that the
deed's special power of appointment was invalid. A judge
of the Probate and Family Court upheld the validity of the
reservation, and this appeal ensued. For the reasons set
forth, we affirm.
following facts are not in dispute. In late 2005, Margaret
was seventy-seven years old and in declining health.
Concerned about her potential need for long-term medical
care, she sought legal assistance to plan her estate to
protect her home from certain "spend-down" or lien
provisions of MassHealth, the Massachusetts Medicaid program.
In some situations, MassHealth considers assets transferred
during a "look-back" period for disqualification
purposes, and the period was soon to be enlarged from three
years to five. See 130 Code Mass. Regs. § 520.019(B)
(2006) (look-back period thirty-six months for transfers
prior to February 8, 2006; look-back period sixty months for
transfers on or after February 8, 2006) . As part of a
strategy to avoid or to minimize the impact of this change,
Margaret executed the deed on January 2, 2006, transferring
the property to Skye, Melanie, Lisa, and Stewart. The deed
reserved to Margaret a life estate and a special power of
appointment, exercisable by deed or by will, that would
permit Margaret to appoint the property to any person except
herself, her creditors, her estate, or her estate's
creditors. The relevant provision of the deed states:
"The Grantor also reserves the power to
appoint, in whole or in part, the property herein conveyed to
any person or persons in such proportions, outright or upon
such trusts, terms, and conditions as the Grantor may specify
by deed recorded at the appropriate registry of deeds, or by
will or codicil thereto making express reference to this
power. The Grantor may not appoint the said property to the
Grantor, the Grantor's creditors, the Grantor's
estate or the creditors of the Grantor's estate."
October 8, 2008, Margaret executed a last will and testament.
At that time, Margaret had decided that her daughters should
take her estate in unequal shares and, consistent with this
intent, she included in the will an exercise of the special
power of appointment, reducing Skye's interest in the
property from one-third to five percent.
died on March 17, 2009. Lisa, acting in her capacity as
executrix of the estate presented the will for probate on
April 6, 2009. Skye filed an objection to the probate of the
will and then filed a complaint in equity seeking a
declaratory judgment that the deed's reservation of
appointment was void abinitio. For hearing purposes only, the
equity action was consolidated with the will contest and
another matter not relevant here. A trial was held in April,
2014, which resulted in a judgment against Skye upholding the
reservation of appointment in the deed as valid.
Subsequently, the judge ordered the dismissal of Skye's
objections and the admission of the will to probate. Skye has