Court: Legislature can't make laws that retroactively change wills

The Supreme Judicial Court ruled today that two adopted brothers have no right to a share of their great-grandmother's estate because the legislature had no right to extend a 1958 law to treat adopted children the same as biological ones to wills written even earlier.

The ruling benefits the two men's sister, who is biologically related to Anna Bird, who wrote her will in 1941. She sued after the Bird trust's executor sent her a notice saying it would start paying her brothers shares of the trust because of a 2009 amendment to the law that applied it to all wills, regardless of when written.

Anna Bird's will does not explicitly exclude adoptive heirs in sharing in her estate, but it was written when "issue" was considered to mean only biological heirs.

While the goal of the amendment is laudable, the court said, its result would be to throw estate planning into chaos and would be unfair to will makers with specific requests that were perfectly legal at the time they wrote their wills. In other words, it would deprive them of due process, the court said.

In the case before them, the justices said the amendment would mean the biological heir would see her distributions from the trust reduced from 50% to just a third.

Approximately fifty-two years separate the passage of the prospective-only 1958 amendment to § 8 from the effective date of the retroactive 2009 amendment in 2010. Accordingly, families had over one-half of a century to make compensatory estate plans in order to correct any inequalities that arose from the presumption of exclusion of adopted descendants under pre-1958 instruments. ... 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. Moreover, unlike other retroactive laws that have been held constitutional, there is no evidence that an emergency need to provide for adopted children motivated the Legislature to enact the 2009 amendment or that the position of adopted children changed dramatically between 1958 and 2009.

• Complete ruling, Rachel Bird Anderson vs. BNY Mellon, NA, trustee