## Facts

- Wanda W. Jones was adjudicated incapacitated in 1975, and a conservator was appointed over her property.
- While Jones was competent, her attorney (later the conservator) drafted an unsigned 1968 will at her direction leaving most of her assets to specified charities; Jones never repudiated the plan and continued regular charitable giving.
- The conservator petitioned the Probate Court under Mass. Gen. Laws ch. 201, § 38 to approve an estate plan consisting mainly of:
  - a revocable trust for Jones’s lifetime health and comfortable support, with remainder to designated charities; and
  - an irrevocable charitable remainder trust paying Jones (or for her benefit) an annual amount equal to 9% of the trust’s annually revalued fair market value, with remainder to charities.
- Notice of the proceeding was given by newspaper publication for three weeks; the conservator asserted he knew of no heirs based on long acquaintance, inquiries, Jones’s statements, and no response to publication.
- A guardian ad litem was appointed for unborn and unascertained persons who might be heirs and objected, arguing insufficient diligence to locate heirs and challenging the plan’s diversion of assets to charities.
- The Attorney General appeared to represent both the Commonwealth’s interests and the interests of public charities.
- The probate judge found the plan “in keeping with the ward’s wishes,” reserved questions of law without entering a final decree, and reported them for appellate determination.

## Issues

1. Whether creating revocable and irrevocable inter vivos trusts that control ultimate disposition of the ward’s property is an impermissible substitute for executing a will on behalf of an incapacitated person.
2. Whether Mass. Gen. Laws ch. 201, § 38 authorizes a conservator, with Probate Court approval, to establish such trusts even though the conservator cannot execute a will for the ward.
3. Whether due process was satisfied by notice by publication and representation of unknown heirs through a guardian ad litem, and whether the Attorney General had a disqualifying conflict in representing both the Commonwealth and public charities.
4. Whether a finding that the plan is “in keeping with the ward’s wishes” as best ascertainable satisfies § 38.

## Decision

- The court held that § 38 does not permit a conservator to execute a will for a ward, but does permit (with Probate Court authorization) creation of inter vivos trusts that provide for the ward during life and direct remainder interests to persons other than the ward’s estate, including charities.
- The proposed revocable trust and charitable remainder trust were within § 38 and were not treated as an invalid testamentary act.
- Notice by publication was constitutionally adequate where the conservator had no actual knowledge of heirs and no information reasonably leading to their identification, and where potential heirs were represented by a guardian ad litem.
- The Attorney General’s participation on behalf of both the Commonwealth and public charities was not a conflict on these facts.
- Evidence of Jones’s prior charitable intent and giving supported the Probate Court’s finding that the plan was in keeping with her wishes, satisfying § 38.

## Legal Principles

- A conservator lacks power to execute a will for an incapacitated person, but may, with court approval under Mass. Gen. Laws ch. 201, § 38, implement estate-planning transactions through present transfers such as inter vivos trusts, including charitable dispositions, if the ward’s lifetime needs are secured.
- Inter vivos trusts are not invalid merely because their economic effect resembles testamentary disposition; the dispositive question is whether they are present transfers authorized by statute and approved by the Probate Court.
- For unknown or unascertainable heirs, published notice may satisfy due process when no more targeted method is feasible and a guardian ad litem is appointed to represent their interests.
- The Attorney General may represent both the Commonwealth’s escheat interest and public charitable interests in a § 38 proceeding absent an actual, substantial conflict.
- The § 38 requirement that a plan be consistent with the ward’s wishes may be met by inferences drawn from the ward’s prior statements, donative patterns, and earlier estate-planning acts, even though the ward cannot presently confirm intent.

## Conclusion

The court approved the use of § 38 to authorize a conservator’s inter vivos trust-based estate plan that protected the ward during life and carried out her likely charitable intent, while also holding that publication notice and guardian ad litem representation adequately protected unknown heirs and that the Attorney General’s dual role presented no disqualifying conflict.


In re Jones, 379 Mass. 826, 401 N.E.2d 1351 (Mass. 1980)