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Flanagan v. Cerretani

Superior Court of Massachusetts, Suffolk

May 17, 2018

Jan R. FLANAGAN, in her capacities as Personal Representative of the Estate of Robert W. Cerretani, and Co-Trustee of the Robert Cerretani Trust, and Brandon Flanagan, in his capacity as Co-Trustee of the Robert Cerretani Trust
v.
Joseph S. CERRETANI, Sr., individually and in this capacity as Trustee of the Cerretani Realty Trust, Joseph Cerretani, Jr., Jan R. Flanagan, Ingrid Merowitz and Sharon Piccirilli

          MEMORANDUM OF DECISION AND ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT ON THE COMPLAINT

          Mitchell H. Kaplan, Justice of the Superior Court

         INTRODUCTION

         Robert W. Cerratani (Robert) and Joseph S. Cerratani, Sr. (Joe Sr.) were brothers and partners in a general partnership that they called Cerretani Realty Associates (the Partnership). There was no written partnership agreement defining the terms of their Partnership. The Partnership was the successor to a grocery business founded by Robert’s and Joe Sr.’s father and uncles. During the period relevant to the matters at issue in this litigation, the Partnership was in the business of owning and managing real estate. The real estate was held in the name of nominee trust which the partners called Cerretani Realty Trust (the Realty Trust).[1] Joe Sr. was and is its Trustee; the Partnership was its sole beneficiary. The Partnership held title to a few assets outside of the Realty Trust: some cars and a modest bank account.

         Robert died on June 28, 2016; his death spawned a number of law suits among his relatives concerning who would succeed to his interests in the Realty Trust and the Partnership. The principal antagonists are Joe Sr. and his lineal decedents, on the one hand, and Robert’s sister, plaintiff Jan R. Flanagan (Jan), and her issue, on the other. In this action, Jan, as personal representative of Robert’s estate, and she and her son Brandon Flanagan (Brandon), as trustees of a so-called "pour over", inter vivos trust established as part of Robert’s estate plan (the Robert Trust) request that the court "instruct" them concerning whether to demand liquidation of the Realty Trust and the Partnership and how the cash generated from the liquidation is to be distributed under the terms of the Robert Trust. This "request for instructions" is, in effect, a euphemism for a request that the court declare that the Realty Trust and Partnership be liquidated and cash equivalent to Robert’s interest pass to the residual beneficiaries of the Robert Trust, Jan being one of them. The defendants, Joe Sr. and his son, defendant Joseph S. Cerretani, Jr. (Joe Jr.), contend that the court should order that Robert’s interests in the Trust and the Partnership be distributed in kind to Joe Jr under the express terms of the Robert Trust.

         The case is now before the court on cross-motions for summary judgment on the complaint.

         ADDITIONAL FACTS

         The following material facts are not in dispute.

         Robert never married. He was survived by his siblings, Joe Sr., Jan, and another brother Gary Cerratani (Gary), and several nieces and nephews.

         Robert retained the law firm Lynch, Brewer, Hoffman & Fink to represent him in estate planning matters. Christine Whitman, a member of that firm, drafted the most recent version of his Last Will and Testament (the Will) as well as the last amendment to the Robert Trust. Robert signed these instruments on November 17, 2015. The Will named Jan as his Personal Representative and the Trust amendment named Jan and Brandon as co-trustees of the Robert Trust.

         Article Fourth of the Robert Trust contained a number of specific bequests of cash and real estate to relatives and charities to be made upon his death and further provided that: "the entire remaining balance of the trust estate, after satisfying the cash gifts described above ... shall be distributed outright and free of all trust, in equal shares, to such of [Robert’s] sister, Jan Flanagan, [Robert’s] niece Ingrid Merowitz and [Robert’s] cousin, Sharon Piccirilli, as are then living ...."[2]

         With respect to Robert’s interest in the Realty Trust and the Partnership, in section B of the Robert Trust, which is labeled "Real Estate Gifts," Article Fourth states as follows:

4. Cerratani Realty Trust. The Trustees shall distribute all of the Settlor’s rights, title and interest in and to the Cerratani Realty Trust, d/b/a Cerratani Realty Associates partnership or any successor in interest thereto, to the Settlor’s nephew Joseph Stephen Cerretani[3], if he is then living, and if he is not then living, the same shall be distributed to his descendants then living, per stirpes. (emphasis in the original)

         Also on November 17, 2015, Robert transferred title to certain parcels of real estate that were not held in the name of the Trust or used in the Partnership’s business to the Robert Trust. The disposition of these parcels was specifically addressed in Article Fourth. Some weeks later, Attorney Whitman sent Robert two instruments entitled Cerranti Realty Associates, Assignment of Beneficial Interests and Cerratani Realty Trust, Amended Schedule of Beneficiaries. These instruments would have substituted the Robert Trust for Robert as the owner of his interests in the Partnership and the Trust, but he never signed the documents.[4]

         Upon Robert’s death, Jan successfully petitioned for appointment as the Personal Representative of Robert’s Estate. She then demanded that the Partnership be wound up and an accounting of the Partnership’s assets provided. Jan contends that the Partnership may only be wound up by means of a sale of the properties held by the Realty Trust and distribution of Robert’s share of the proceeds of the liquidation in cash to the Estate. She also demanded that Robert’s share of the cash generated by the Partnership from the time of Robert’s death up to the date of liquidation be paid to the Estate. Jan has asserted that the cash generated by the operation of the Partnership after Robert’s death and the sale of the real estate in the Realty Trust will pass to her, Ingrid Merowitz and Sharon Piccirilli as the residual beneficiaries under the terms of the Robert Trust. Joe Sr. maintains that Robert’s interest in the Realty Trust and the Partnership passed to Joe Jr., under the express terms of the Robert Trust and nothing is due the Estate, other than ...


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