Tuesday, November 12, 2013

Marsman v. Nasca case brief

Marsman v. Nasca case brief summary
573 N.E.2d 1025 (1991)

The defendant trustee sought review of an order of the Norfolk Division of the Probate and Family Court Department (Massachusetts), in favor of the plaintiff executrix, holding that the trustee, who had the discretionary power to pay principal for support and maintenance, had a duty to inquire into the financial resources of a beneficiary under a testamentary trust.


The trustee had the power under a testamentary trust to pay principal to a beneficiary for his support and maintenance. Aside from one payment, the trustee never made any payments to the beneficiary and, as a result, the beneficiary had to convey his house. 


  • The probate court agreed that the trustee should have made distributions to the beneficiary so that he could have kept the house. 
  • The court agreed with the probate court's finding but disagreed as to the remedy. 
  • The court found that the trustee failed in his duty of inquiry into the needs of the beneficiary. 
  • The court determined, however, that the proper remedy was not to set aside the conveyance but to determine the amounts which should have been paid to the beneficiary to enable him to keep the house, and to pay that amount from the trust to the beneficiary's estate. 
  • The court also found that the exculpatory clause which had been drafted by the trustee was effective and thus the trustee would not be personally charged. 
  • The court affirmed the denial of attorney fees to the executrix as within the discretion of the probate court.


The court vacated the order and denied the trustee's motion for a new trial but remanded to the probate court for a determination of the amount to be paid to the beneficiary's estate.

Suggested Study Aids For Wills, Trusts & Estate Law

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