Faye S. Ginsberg et al.
Bruce C. Ginsberg et al.
Caption Date: December 14, 2017
(with first initial, no space for Sullivan, Dorsey, and
Walsh): Leibensperger, Edward P., J.
MEMORANDUM OF DECISION AND ORDER ON DEFENDANTSâ
MOTIONS TO DISMISS
P. Leibensperger Justice
case presents a dispute between a sister and brother. The
sister disputes (1) the basis of testamentary decisions made
by their mother, and (2) the brotherâs stewardship as a
trustee of trusts established by their parents. The threshold
issue is whether the sisterâs act in commencing this
litigation is a violation of the " no contest"
provision in the relevant trust such that this action should
be dismissed. The brother, and other defendants affiliated
with him, contend that by this action the sister has
forfeited her beneficial interests in the trusts. Thus,
defendants move to dismiss for lack of standing.
Faye S. Ginsberg (Faye),  is the sister of defendant, Bruce
C. Ginsberg (Bruce). They are the adult children of Manny and
Shirley Ginsberg, both of whom are deceased. Faye brings this
action on behalf of herself, and as legal guardian of her
adult, handicapped son, Andrew Blacker. Faye is joined as a
plaintiff by Taylor Blacker, Fayeâs adult daughter. In this
memorandum, plaintiffsâ claims will be referred to,
collectively, as Fayeâs claims.
Third Amended Complaint (Complaint) names Bruce as a
defendant, in his individual capacity as well as in his
capacity as trustee of certain trusts. A co-trustee, J.
Robert Casey, is also sued. Bruceâs children, Maxwell,
Benjamin, Samuel and Zachary, are also named as defendants.
In this memorandum, these defendants will be referred to,
collectively, as Bruce, unless the circumstances require more
specificity. Finally, the list of defendants includes ten
corporations allegedly controlled by Bruce.
following facts are taken from the Complaint or from
documents referenced and relied upon in the
was a successful entrepreneur who created an ice cream
distribution company which became a multi-million dollar
business. Throughout his life, Manny also acquired various
real estate holdings in Massachusetts, along with his wife,
Shirley. Shirley was an active partner with Manny in his
businesses. Manny died in April 2008. Shirley died on
September 27, 2015.
to Mannyâs death, the Ginsbergs established four irrevocable
trusts for the benefit of their children and grandchildren.
These trusts included the Manuel and Shirley Ginsberg 1991
Irrevocable Trust (the 1991 Trust), the 1992 Grandchildrenâs
Trust (the 1992 Grandchildrenâs Trust), the Manuel and
Shirley Pleasant Street Annuity Trust, dated February 1992
(the 1992 Annuity Trust), and the Ginsberg Family Trust dated
January 1, 2005 (the 2005 Ginsberg Family Trust). Faye and
her children are beneficiaries under those trusts. Bruce is a
trustee of all of these trusts. Faye was a co-trustee of the
1991 Trust, the 1992 Annuity Trust, and the 2005 Ginsberg
Trust, at least initially. By their wills and the revocable
trusts, Manny and Shirley allegedly intended that their
children would receive equal interests in their assets upon
the death of the second to die of Manny and Shirley.
Complaint Â¶41. Upon Mannyâs death, the " bulk of the
Ginsberg family wealth was held by Shirley and the trusts
established by Shirley and Manny." Complaint Â¶43.
After Manny died, Shirley increasingly relied on Bruceâs
financial experience, and counted on his trustworthiness, to
advise her on financial matters affecting her and her
family." Complaint Â¶44. The Complaint alleges that Bruce
caused the trusts to make disproportionate distributions to
himself and his family. The Complaint also alleges that Bruce
exerted undue influence over Shirley as she declined
physically and mentally. Complaint Â¶51. In that regard, Bruce
persuaded Shirley to make an inter vivos gift to him of a 50%
interest in Ginsberg Taunton Properties, LLC (GTP), the owner
of real estate in Taunton.
requests, Bruce has allegedly refused to provide an
accounting for any of the trusts. He allegedly concealed
trust transactions from Faye and took steps to remove Faye as
co-trustee. Complaint Â¶55. Faye was removed as a co-trustee
of the family trusts in 2012 and 2014. Complaint Â¶56. In 2014
and 2015, Bruce allegedly used trust assets to further his
private business interests.
months before Shirley died, Bruce allegedly persuaded Shirley
to execute new estate planning documents. Shirley executed a
will and the Seventh Amendment and Complete Restatement of
the Shirley Ginsberg Revocable Trust (the 2015 Shirley Trust)
on July 8, 2015. Faye alleges that Bruce persuaded Shirley
that she should leave to Bruce and his children real estate
assets that Shirley had long promised to Faye. These assets
include the family home at 42 Shepard Avenue, Swampscott, and
a property called " the Post Office" in Truro.
Complaint Â¶74. According to Faye, Bruce intentionally misled
his mother into making these changes in her plan for
disposition of assets. At the same time, Bruce allegedly
caused Shirley to change the death beneficiary on her
retirement account, as well as other bank accounts, from Faye
to Bruce or Bruceâs children.
Shirley died on September 27, 2015, Faye was unaware of
Shirleyâs gifts to Bruce and the new July 2015 estate
planning documents. Complaint Â¶83. At some date after
Shirleyâs death, Faye learned of the July 2015 estate plan.
In October 2015, Faye, through counsel, requested that Bruce
and the co-trustee, Casey, provide information relating to
Bruceâs prior administration of the trusts and Shirleyâs July
2015 estate plan. The 2015 estate plan documents were
produced to Faye on a date not specified in the Complaint,
along with a copy of a letter from Shirley, dated July 8,
2015, explaining her testamentary intent. On February 4,
2016, Faye received the Petition for Formal Adjudication of
the Will of Shirley Ginsberg, and the approval of Bruce as
Shirleyâs personal representative. Faye did not file an
objection to the probate proceedings or contest the will.
Fayeâs counsel continued to press for more information
regarding the administration of the trusts and the facts
surrounding the July 2015 estate plan. According to the
Complaint, Bruce refused to provide the information
requested. Complaint Â¶90. Faye pleads, however, that on May
10, 2016, her counsel received " a limited amount of
information regarding the wills and trusts established by
Shirley and Manny, which information was both incomplete and
unclear." Complaint Â¶91.
Complaint asserts a plethora of claims, sometimes tied to a
particular trust and sometimes not. The Complaint is not a
model of clarity. It is divided into thirteen (13) counts:
Count I- Claim for breach of fiduciary duty v. Bruce as
trustee of the " Ginsberg Trusts."
Count II- Claim for breach of fiduciary duty v. Bruce as
trustee for failure to keep accurate records and to inform
Count III- Claim for breach of fiduciary duty v. Bruce for
failure to act impartially among beneficiaries.
Count IV- Claim that Bruce failed to account to Faye for the
sale in 2007 of a property owned by Ginsberg Asset