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Skye v. Hession

Appeals Court of Massachusetts, Worcester

April 28, 2017

DEAVEN A. SKYE
v.
LISA A. HESSION & others.[1]

          Heard: November 18, 2016.

         Complaint filed in the Worcester Division of the Probate and Family Court Department on December 21, 2010.

         The case was heard by Lucille A. DiLeo, J.

          Robert P. Ford for the plaintiff.

          Francis X. Small for the defendants.

          Present: Vuono, Kinder, & Lemire, JJ.

          VUONO, J.

         This 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.[2], [3] 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.

         Background.

         The 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."

         On 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.

         Margaret 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.[4] Subsequently, the judge ordered the dismissal of Skye's objections and the admission of the will to probate. Skye has appealed.

         D ...


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