IN RE THE TRUST OF HERBERT O. PHILLIPS, DATED MARCH 1, 1928
Plaintiff: Bernard A. Jackvony, Esq.
Defendant: Gordon P. Cleary, Esq.; Peter J. Duffy, Esq.
the Court is Respondents'-Trust beneficiaries Claire
Willis, Emily Greenstein, Carlin Greenstein, Suzanne Willis,
Jack Sheehy, and David Sheehy (collectively,
Respondents)-Super. R. Civ. P. 12(b)(6) Motion to Dismiss
Petitioner John Parker Willis' (Petitioner) petition for
declaratory relief or, in the alternative, to either amend
the trust or allow the other beneficiaries to disclaim their
interest in Petitioner's share of the Trust. Petitioner
seeks to permit his adopted son-whom he adopted as an
adult-to succeed to his interest in his grandfather's
trust. This Court has jurisdiction pursuant to G.L. 1956
Herbert O. Phillips 1928 Trust and Amendments (herein, the
Trust) was established in 1928 by Herbert O. Phillips
(Settlor). Rhode Island Hospital Trust served as the initial
Trustee, and has since been replaced by its successor entity,
Bank of America. Following the Settlor's death, the Trust
directs the Trustee to equally divide the remaining net
income from the Trust to the benefit of his wife, Mary M.
Phillips (Mary), three daughters-Edna, Barbara, and Marion-
and their issue. The Trust further provides for its
termination twenty-one (21) years following the death of the
Settlor's wife and daughters and two other named
individuals, Wesley Price Ricker and Barbara Price Ricker
(collectively, the Rickers). Currently, the Rickers are the
only surviving named individuals, and both are in their
mother, Barbara, one of Settlor's daughters, became a
beneficiary of the Trust following the Settlor's death.
Petitioner and his three sisters succeeded to their
mother's interest in the Trust upon her death. In 2001,
at the direction of this Court, Barbara's interest in the
Trust was divided into four separate shares-one for each of
her children. See Judgment, M.P. No. 2001-2857 (June
14, 2001) (Silverstein, J.) (hereinafter 2001 Judgment). The
2001 Judgment further provides that "[i]f, at any point,
a child of Barbara Willis is deceased and no issue of that
child survives, " then the deceased child's share of
the Trust will be divided evenly among the surviving
present, Petitioner is the only sibling without biological
children. Thus, if Petitioner dies prior to termination of
the Trust, per the 2001 Judgment, his interest will be
divided equally among his surviving siblings. While
Petitioner does not have any biological children, he does
have an adopted son, Simon Etherington (Simon). Notably,
Simon was adopted while an adult by Petitioner. He seeks to
have Simon succeed to his interest in the Trust if Petitioner
dies prior to its termination.
filed the instant petition; Respondents in turn submitted a
motion to dismiss the petition. Both parties submitted
supplemental memoranda in support of their respective
sole function of a motion to dismiss is to test the
sufficiency of the complaint[.]'" Audette v.
Poulin, 127 A.3d 908, 911 (R.I. 2015) (quoting
Ho-Rath v. R.I. Hosp., 115 A.3d 938, 942 (R.I.
2015)). In testing the complaint's sufficiency, the
Court's "review is confined to the four corners of
that pleading, " id. (citation omitted), and
the Court "'assumes the allegations contained in the
complaint to be true and views the facts in the light most
favorable to the plaintiff.'" R.I. Emp't
Sec. All., Local 401, S.E.I.U., AFL-CIO v. State Dep't of
Emp't & Training, 788 A.2d 465, 467 (R.I. 2002)
(hereinafter R.I. Emp't) (per curiam)
(quoting St. James Condo. Ass'n v. Lokey, 676
A.2d 1343, 1346 (R.I. 1996)). Phrased another way,
"'[w]hen ruling on a Rule 12(b)(6) motion, the
[Court] must look no further than the complaint, assume that
all allegations in the complaint are true, and resolve any
doubts in a plaintiff's favor.'" Pellegrino
v. R.I. Ethics Comm'n, 788 A.2d 1119, 1123 (R.I.
2002) (quoting R.I. Affiliate, ACLU v. Bernasconi,
557 A.2d 1232, 1232 (R.I. 1989)); see also Palazzo v.
Alves, 944 A.2d 144, 149 (R.I. 2008). Accordingly, a
motion to dismiss "should not be granted 'unless it
appears to a certainty that the plaintiff will not be
entitled to relief under any set of facts which might be
proved in support of [its] claim.'" R.I.
Emp't, 788 A.2d at 467 (internal alteration omitted)
(quoting St. James Condo. Ass'n, 676 A.2d at