Section Review

A Probate dilemma: The tolling of a minor's estate claim - beyond one year?

Joseph L. Bierwirth, Jr. is a litigator at Hemenway & Barnes in Boston where his practice includes representation of fiduciaries and beneficiaries in probate court matters.
Earlier this year, in a well-publicized decision, a judge of the Probate and Family Court (Smoot, J.) allowed a minor child to proceed with a claim to establish paternity even though the paternity action was not brought against the putative father's estate until long after the expiration of the one-year statute of limitations for claims against estates found in Massachusetts General Laws chapter 197, section 9. Y.H. v. Estate of J.W., Suffolk Division No. 02W1590-00P954, L.W. No. 15-002-04 (Feb. 4, 2004).

In his decision, the probate judge recognized that allowing claims of minors to proceed in such circumstances could hold the disposition of estates "in limbo," but felt duty-bound to apply the tolling statute generally applicable to minor claims, General Laws chapter 260, section 7.1 The decision has troubled many members of the bar involved in estate administration. How can an estate be timely closed and its assets duly distributed if an executor or administrator remains subject to suit until all potential minor claimants reach the age of majority? This article outlines an argument that attempts to harmonize the apparent conflict in the statutes and vindicate the laudable purpose behind the short statute of limitations - to provide for the expeditious administration of estates and afford fiduciaries greater certainty in the probate process.

The case

The facts of the Y.H. matter are straightforward. On Feb. 2, 1987, Y.H. gave birth to a daughter, Kay. Kay's putative father, J.W., died intestate on Feb. 6, 2000. After his parents filed a petition for administration of the intestate estate, listing themselves as the sole heirs, J.W.'s mother was appointed administrator. Thirty-two months after J.W.'s death, Y.H. brought suit against the estate in the Probate Court to establish Kay's paternity through J.W. and her status as the sole heir.

The administrator moved to dismiss the paternity action as untimely. In order to establish paternity for purposes of inheritance, a child born out of wedlock must follow the procedures set forth in chapter 190, section 7, which provides, in relevant part, as follows:

If a decedent has acknowledged paternity of a person born out of wedlock or if during his lifetime or after his death a decedent has been adjudged to be the father of a person born out of wedlock that person is heir of his father. … A person may establish paternity if, within the period provided under section nine of chapter one hundred and ninety-seven for bringing actions against executors and administrators, such person either (a) delivers to the executor or administrator an authenticated copy of a judgment rendered by a court of competent jurisdiction during a decedent's lifetime adjudging the decedent to be the father of a person born out of wedlock, or (b) commences, in a court of competent jurisdiction, an action in which the executor or administrator is a named party and in which such paternity is ultimately proved.

In turn, chapter 197, section 9 contains a special statute of limitations: "… an executor or administrator shall not be held to answer to an action by a creditor of the deceased unless such action is commenced within one year after the date of death of the deceased." Thus, although a person bringing a claim for paternity under chapter 190, section 7 is not a "creditor," the one-year statute of limitations is borrowed from chapter 197, section 9.

What if the potential claimant is a minor or is mentally incapacitated? The general tolling provision applicable to claims brought by minors and those incapacitated by mental illness is in chapter 260, section 7: "If the person entitled thereto is a minor, or is incapacitated by reason of mental illness when a right to bring an action first accrues, the action may be commenced within the time hereinbefore limited after the disability is removed."

In the Y.H. decision, Judge Smoot noted that the one-year special statute of limitations is designed "to promote the efficient and orderly settlement of estates and stability of title to property," citing Stebbins v. Scott, 172 Mass. 356, 362 (1899), and Lamson v. Schutt, 86 Mass. 359 (1862). The judge correctly pointed out the difficulties that would ensue if the one-year statute of limitations could be tolled due to minority or incapacity of claimants.

If the time limitation on paternity claims brought by children against their putative father's estates is broadened by application of G.L. c.260, ß7, then disposition of estate assets could be held in limbo forever in the case of a potential claimant who suffers from mental illness and for as long as 19 years after the decedent's death in the case of a minor who is not otherwise disabled. Title to real estate, in particular, would remain in doubt as real estate passes directly to a decedent's heirs. There is also the question of the nature of the evidence involved in establishing paternity. Although paternity can be established by testing relatives of the decedent, those relatives may not be parties to the action and may not be subject to the court's jurisdiction. It has become increasingly acceptable to exhume the body of a decedent to withdraw genetic markers but this can be emotionally troubling for family members and presumably such testing would be even more disturbing after many years have passed since the decedent's death.

Despite these inherent difficulties, the judge felt constrained to apply the tolling provision to the minor's claim of paternity because "the Supreme Judicial Court has held that the tolling statute should be applied unless the Legislature has indicated a clear contrary intent," citing Hernandez v. City of Boston, 394 Mass. 45 (1985). Reviewing the language of the relevant statutes, the judge found no clear indication in either chapter 190, section 7 or chapter 197, section 9 to specifically exclude application of the tolling provision of chapter 260, section 7. Therefore, he denied the motion to dismiss and allowed the claim to proceed.2

Analysis and comment

The circumstances arising in Y.H. present a difficult dilemma. There are certainly valid public policy rationales behind each of the statutes in play. Those responsible for administering estates benefit from the certainty provided by the one-year limitation period. Beneficiaries and heirs should be able to receive good title expeditiously. Clearly, the Probate Court has an interest in quickly settling estates. On the other hand, obvious injustice might result if minors and the incapacitated are time-barred while incompetent to sue on their own.

Still, the courts have upheld the constitutionality of strict application of limitations statutes to minors on the assumption that "the interests of minors will be protected by their guardians, or by others who are near to them." See Cioffi v. Guenther, 374 Mass. 1 (1977) (upholding provisions of special statute of limitations applicable to minors in medical malpractice actions). As noted by Judge Smoot in Y.H., General Laws chapter 209C, section 5 provides that a complaint to establish paternity may be brought on behalf of a minor by a guardian, certain relatives or other representatives. From a pure policy perspective, it appears the interest in closing estates and orderly disposing of a decedent's assets outweighs the more amorphous interest in relieving minors whose guardians might be less than diligent. But how to reconcile with chapter 260, section 7? The answer is found in chapter 260, section 19: "If a special provision is otherwise made relative to the limitation of any action, any provision of this chapter inconsistent therewith shall not apply."

In Hernandez v. Boston, 394 Mass. 45 (1985), the case cited by Judge Smoot, the SJC found that section 19 did not control where the special statute of limitations contained the same limitations period as in chapter 260. In that case, the special statute of limitations applicable to the plaintiff's claim under chapter 258, the Massachusetts Tort Claims Act, was identical (three years) to the tort limitations period found in chapter 260, section 2A. Accordingly, the statutes were not "inconsistent" and chapter 260, section 7 served to toll the accrual of the plaintiff-minor's claim.

However, in subsequent cases, courts have indicated that, where the special statute of limitations diverges from a limitations period contained in chapter 260, "inconsistency" within the meaning of section 19 exists. For example, in Ford v. Commissioner of Correction, 27 Mass. App. Ct. 1127, 1129 (1989), the Appeals Court characterized the then two-year statute of limitations applicable to actions in the nature of certiorari under chapter 249, section 4 as a "special provision inconsistent with the provisions of G.L. c.260." In Ford, the plaintiff claimed the two-year statute should be tolled based on his incarceration, then a ground for tolling under chapter 260, section 7. However, because the certiorari statute contains its own special statute of limitations different from the otherwise applicable three-year tort limitations period, chapter 260, section 7 did not save the inmate's claim. Also, in explaining the rationale for its holding, the Appeals Court pointed to the policy goal of prompt resolution of claims reflected in the legislature's choice to make certiorari, with its six-month limitation period, the sole mechanism by which prisoners can challenge prison disciplinary proceedings.

Likewise, the one-year statute of limitations in chapter 197, section 9 reflects important policy goals. Estates and beneficiaries should not be left "in limbo." Title to real estate should be settled in short order so it may be put to its highest and best use. Executors should be confident they can distribute estate assets after one year without the threat of unknown liabilities arising from dormant minor claims. All of these goals are furthered by strict application of the one-year limitation period -- a limitation that is "inconsistent" with the tort or contract limitations set forth in chapter 260.


While the analysis above appears to reconcile the conflicting statutory intents, a more definite resolution could be had if the legislature speaks. A simple amendment to chapter 197, section 9, to the effect that the tolling provision of chapter 260, section 7 is not intended to apply, would remove any doubt and spell an end to this peculiar probate dilemma.

End notes

1. Judge Smoot is not alone in reaching this result; at least one other trial judge has recently arrived at a similar conclusion. See Drooz-Yoffie v. Baker, 14 Mass. L. Rep. 472, 2002 Mass. Super. LEXIS 107 (McCann, J.) (denying summary judgment to executor on minor creditor's claim that decedent sexually assaulted her brought beyond one-year from date of death.)[back]

2. The administrator appealed the trial judge's interlocutory decision to a single justice of the Appeals Court pursuant to General Laws chapter 231, section 118, para. 1. However, given that the relief requested would be outcome determinative, i.e., dismissal of the plaintiff's complaint, the single justice was without authority to consider the petition and denied the appeal without reaching the merits of the probate judge's decision.[back]

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