March 2, 2024

The Massachusetts Appeals Court recently held that children who are disinherited from a deceased parent’s will do not have standing to challenge the appointment of the person nominated to serve as personal representative. Here, the decedent purposefully in expressly disinherited his son, under the terms of his Last Will and Testament because he provided for his son in his trust. Smartly, the decedent explicitly stated the reason why he disinherited his son under the will and that he did so intentionally.

In the recent case, Judge Elaine Moriarty dismissed a disinherited son’s Petition for Formal Probate of his late father’s will due to the son’s lack of standing. In In the Matter of Estate of Ronald Birkenfeld, Birkenfeld’s disinherited son from a prior marriage, challenged the appointment of his late father’s wife as personal representative of his father’s estate. In affirming Judge Moriarty’s order dismissing the petition, the Appeals Court held the party contesting or seeking to challenge the appointment of a personal representative must have an “actual interest” in the estate to have standing  Here, because the son was “disinherited” he lacked an actual interest in the estate to confer standing to sue.

Often, when the parents of adult children die, the deceased parent leaves a will that may nominate a personal representative to tend to their affairs. Sometimes, the surviving children are unhappy with the deceased parent’s nomination, unfamiliar with the process and lack of “control” or are disinherited altogether. It is important for surviving family members to realize and understand that the personal representative is the legal representative of the decedent, representing and being the live person who stands for the Estate. Accordingly, the nominated personal representative or “PR” for short, once appointed by the Court, will holds the deceased parent’s attorney–client privilege, the right to request medical or tax records and the testamentary power to decide whether to pursue a claim or lawsuit on behalf the Estate or to retain counsel in the event defense of the Estate is required. Many times, warring factions of the family fail to understand that for the most part, the nominated personal representative or PR, if already appointed, will be entitled to have his or her legal fees paid from the estate, thus diminishing the assets of the Estate that will be available for distribution to the beneficiaries.

In Birkenfeld, the Massachusetts Appeals Court answered the following question: Did a disinherited son’s status as an “interested person” under the Massachusetts Uniform Probate Code (“MUPC”) confer standing to challenge his stepmother’s appointment as personal representative of his father’s estate?   For those reasons set forth above, the Court, answered that question in the negative. In answering it, the Court noted the MUPC while robust and broad, still has several gaps that require a look back to the pre-MUPC common law:  a person must have a legal interest in the estate to have standing to challenge the appointment of a personal representative. This has long been the law prior to the adoption of the MUPC, since the Supreme Judicial Court’s s holding in Clymer v. Mayo, 393 Mass. 754 (1985) which held, “[A] cognizable legal interest in the estate is required because ‘courts are not established to enable parties to litigate matters in which they have no interest affecting their liberty, rights or property.”

Birkenfeld is a reminder to assess whether one has the right to challenge the will itself, the appointment of the PR or both.

If you or someone you know is struggling with their rights and obligations with estate or trust administration, we can help. Please call the office or send me an email at for a copy of the Massachusetts Appeals Court decision in Birkenfeld v. Birkenfeld, 22-P-308.

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