High court: Adoptees do not have same rights as biological relatives to family fortune in wills written before 1958

Adopted children do not have the same rights as biological children to inherit the family fortune under wills written before 1958, the state’s highest court ruled today in a closely watched case.

The ruling grew out of a dispute between Rachel A. Bird Anderson and her adopted brothers, Marten and Matthew Bird, over the meaning of the 1941 will of their great-grandmother, Anna Child Bird, the matriarch of the famous Walpole family who donated Bird Park to the town.

The Supreme Judicial Court said the law in effect when Anna Child Bird wrote the will applies today, not a 1958 law that gave biological and adopted descendents equal inheritance rights, or the 2009 law that made those rights retroactive for all time.


Anna Child Bird’s will “was created by a private person operating in the private sphere, bestowing expectations and interests on her descendants,’’ Justice Margot Botsford wrote for the unanimous court.

“The settled law in this Commonwealth is and has been that one executing a will or trust and distributing property thereby is entitled to rely on the law in effect at the time the instrument was created,’’ wrote Botsford, who called the concept a “bedrock principle’’ of Massachusetts law.

Before 1958, adopted children were not considered heirs, unless they were specifically named as such in the will.

The Boston Bar Association was one of the legal groups filing “friend of the court’’ briefs in the case. Lisa C. Goodheart, the association president, said today that the way the court handled the dispute will ease the minds of many families and the estate lawyers who advise them.

“This decision avoids a radical change,’’ Goodheart said. “The long-settled rules of the road and expectations have been reaffirmed with this decision.’’

According to the SJC, only Rachel A. Bird Anderson among her siblings received income from Anna Child Bird’s trusts until the 2009 law took effect. Under the 2009 law, Bird Anderson’s share of the trust’s income shrunk to 16 2/3 percent, down from a 50 percent share. (The money that would go to the brothers has been held while the litigation continued.)


The new law also meant that when the assets still in the trust are distributed in 2031, the three siblings — whose father, David Bird, died in 2007 — would have to split the money three ways, the SJC said. The dollar value of the trusts is not included in the court papers.

But the SJC said it would be unfair to Bird Anderson, who was born in 1967, to now change the rules that she has lived with her entire life.

“From the moment of her birth, there was a substantial biological probability that she would survive her father and uncles and become eligible for distributions from the trust,’’ Botsford wrote.

The court noted that the estate of grandmother Julia Bird provided for Marten and Matthew in her will — an estimated $440,000 each — but left nothing to Bird Anderson. Families like the Birds have had some 50 years to incorporate adopted descendents into their inheritance plans, the court said.

“The 2009 amendment presumably was intended to serve the public interest of equal treatment for adopted and biological children. We have no question that this is a laudable public policy goal,’’ Botsford wrote.

But “application of the 2009 amendment retroactively has the potential to upset the planning of multiple generations of a family like the Birds and could lead to a situation where there remains unequal treatment of adopted and biological issue, but in the other direction.’’

Bird Anderson’s attorney, George L. Cushing, welcomed the ruling as one that correctly keeps faith with Anna Child Bird’s thinking, even though she has been dead since 1942. Cushing declined to disclose a dollar value for the trust fund, but said the litigation itself was proof that the money at stake is “substantial.’’


He said the court’s ruling may not impact a large number of cases, but will impact some trusts created in the early 20th century that are still worth millions of dollars today.

“I think it’s an important principle that is involved here. People who own property have the right to control how that property will be disposed of after they die,’’ he said. “The government shouldn’t interfere with that without substantial and good reason.’’

Bird Anderson’s brothers did not participate in the case. But the view that they are entitled to shares of their great-grandmother’s trust was supported by Attorney General Martha Coakley’s office, which argued in court papers that the 2009 law was both constitutional and worthy of support because it validates the family bonds of adoptees.

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