Tina BENNETT, Individually and as Personal Representative of the Estate of David Bennett
R.J. REYNOLDS TOBACCO COMPANY, individually and as successor by merger to Lorillard Tobacco Co., Philip Morris USA, Inc., and Global Partners, L.P.
MEMORANDUM OF DECISION AND ORDER ON DEFENDANTSâ
MOTION TO DISMISS
Mitchell H. Kaplan, Justice
action the plaintiff, Tina Bennett, alleges claims for
wrongful death and civil conspiracy against the
defendants . She brings these claims as the
Personal Representative of the Estate of David Bennett (David
and the Estate). The defendants have moved to dismiss
the complaint on the grounds that Ms. Bennett was appointed
as the personal representative of the Estate under G.L. c.
190B, Â§ 3-108 (4) of the Uniform Probate Code (UPC or the
Code), and an appointment under that provision of the Code
does not carry with it the authority to bring either a
wrongful death action under G.L. c. 229, Â§ 2 or a tort claim
that belonged to the plaintiffâs decedent at the time of his
death and had become an asset of the estate.
following facts are taken from the allegations of the
plaintiffâs amended complaint, her petition for appointment
as the personal representative of Davidâs estate (the
Petition), and the Decree and Order on Petition for Late and
Limited Formal Testacy and/or Appointment with respect to the
Estate issued by the Worcester Probate and Family Court dated
July 26, 2017.
Bennett died on March 7, 2014. In the Petition, his residence
is listed as 22 Roosevelt Dr., Southbridge, Massachusetts.
Southbridge is a town in Worcester County. This action was
first filed on February 22, 2017, although the plaintiff had
not yet filed any process seeking appointment as the personal
representative of the Estate by that date. On May 16, 2017,
the plaintiff filed a Petition for Late and Limited Formal
Testacy and/or Appointment in the Worcester Probate and
Family Court. On July 26, 2017, that Court issued a decree
allowing the Petition and appointing the plaintiff the
personal representative of the Estate pursuant to G.L. c.
190B, Â§ 3-108(4). On August 11, 2017, the plaintiff filed an
amended complaint alleging her appointment as the personal
representative of the Estate.
issue presented by this case is one of first impression, both
in Massachusetts and other states that have adopted the UPC:
does a personal representative appointed with the limited
authority provided by Â§ 3-108(4) of the UPC have standing to
bring tort actions that were the property of the deceased and
are an asset of the estate and/or an action for wrongful
death under G.L. c. 229, Â§ 2?
provides, as relevant to this question, that
No informal probate or appointment proceeding or formal
testacy or appointment proceeding, ..., may be commenced more
than 3 years after the decedentâs death, except ...
(4) if no proceeding concerning the succession or
administration of the estate has occurred within 3 years
after decedentâs death, but the personal representative shall
have no right to possess estate assets as provided in section
3-709 beyond that necessary to confirm title
thereto in the successors to the estate and claims other than
expenses of administration shall not be presented against the
MUPC Estate Administration Procedural Guide, Second Edition,
published by the Administrative Office of the Probate and
Family Court refers to a petition for appointment of a
personal representative brought under this section of the UPC
as a " Late and Limited Formal Proceeding." It
contains the following " Practice Alert" regarding
this type of appointment: " A late and limited appointed
PR may not seek a license to sell real estate of the
decedent. The PRâs authority is limited by statute to
confirming title to estate assets in the successors
and paying expenses of administration, if any."
(emphasis in original).
seems clear that a personal representative appointed under Â§
3-108(4) does not possess a cause of action that belonged to
the deceased and devolved to the estate, such as one for
conscious pain and suffering experienced by the deceased
prior to his death that was caused by a tortfeasor. In
consequence, this kind of personal representative cannot
pursue those tort claims on behalf of the estate. This
limitation appears consistent with the limitation that the
personal representative also cannot cause the estate to pay
any claim other than a cost incurred in performing the
limited function of confirming title in an asset to a
successor. In other words, a " Late and Limited"
personal representative can neither assert estate claims nor
have estate claims asserted against him/her. Accordingly, the
plaintiff in this case does not have standing to assert
conspiracy claims that may have belonged to David before his
death, a species of tort claims, against the defendants.