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In re Estate of Borges

Superior Court of Rhode Island, Newport

November 29, 2018

IN RE ESTATE OF PAUL A. BORGES, Alias Paul Alton Borges, resident decedent of Little Compton, Rhode Island

          For Plaintiff: Mark Iacono, Esq.

          For Defendant: Rebecca M. Murphy, Esq.; Gene Carlino, Esq.; Matthew C. Reeber, Esq.

          DECISION

          NUGENT, J.

         This matter is before the Court on Appellants' Claim of Appeal from the Probate Court of the Town of Little Compton's Order dated December 18, 2017 granting Appellees' claim against the Decedent Paul A. Borges's Estate for breach of the Marital Settlement Agreement (MSA) that Decedent executed with Appellees' mother, Laurie J. Borges. Jurisdiction is pursuant to G.L. 1956 § 33-23-1(a)(2).

         I

         Facts and Travel

         The Decedent, Paul A. Borges, is survived by his four children: the Appellants, Sara Mendes and Susan Borges (Appellants), and the Appellees, Lindsey J. Borges and Paul A. Borges (Appellees). Statement of Undisputed Facts ¶¶ 1-2. On December 17, 1977, Decedent married Laurie J. Borges, the mother-to-be of Lindsey J. Borges and Paul A. Borges. Laurie Borges (Borges) Aff. ¶¶ 1-2; Statement of Undisputed Facts ¶ 1. The Appellants are the Decedent's children from a previous marriage. Statement of Undisputed Facts ¶ 2. During the marriage, Decedent and Laurie Borges purchased the property located at 24 Maple Avenue in Little Compton, Rhode Island (Property) where they raised Appellees who continue to live there. Id. ¶¶ 3-4.

         Before the Decedent and Laurie Borges finalized their divorce in 1998, the couple executed the MSA which addressed the disposition of the Property along with other property the couple owned. Statement of Undisputed Facts ¶¶ 5-7; MSA § 7(b); Borges Aff. ¶¶ 4-5. In § 7(b) of the MSA-in exchange for Decedent's promise to devise the Property to Appellees at his death by will, and a one-third interest in the proceeds from the sale of their New Hampshire property, or an optional $30, 000 buyout of that interest-Laurie Borges agreed to quitclaim her right, title and interest to the Property and two other parcels of real estate. MSA § 7(b); Statement of Undisputed Facts ¶ 6; Borges Aff. ¶ 5. In the event that Decedent transferred the Property during his lifetime, Decedent would leave a specific bequest in his will to the Appellees of not less than $300, 000 in lieu of devising them the Property. MSA § 7(b); Statement of Undisputed Facts ¶ 7; Borges Aff. ¶ 6. Decedent and Laurie Borges further agreed the bequest would be equal to the value of the Property at the time of Decedent's death. Borges Aff. ¶¶ 7-8. The second paragraph of § 7(b) of the MSA states:

"The Husband agrees to execute a will devising all of his right, title, and interest in 24 Maple Avenue, Little Compton, Rhode Island in equal shares to his children Paul Borges and Lindsey Borges upon his death; in the event, however, that Paul Borges transfers said property before his death, then said Paul Borges shall establish a specific bequest in his said last will and testament for the children, which said specific bequest shall have priority over all other bequests, in an amount not less than Three Hundred Thousand Dollars ($300, 000.00)." MSA § 7(b) (emphasis added).

         The MSA further stated it was to be incorporated into the divorce decree and "shall, in all respects, survive the same and be forever binding and conclusive upon the parties." MSA § 17.

         On March 7, 2012, Decedent created both the "Paul A. Borges Irrevocable Trust" (Irrevocable Trust) and "Paul A. Borges Revocable Trust - 2012" (Revocable Trust). Statement of Undisputed Facts ¶¶ 8-9. In addition to being the Grantor of both trusts, the Decedent served as the trusts' initial trustee. See Irrevocable Trust; Revocable Trust § I. In the event of Decedent's death, both trusts' first successor trustee was Appellee Lindsey Borges with Appellant Sara Mendes as an alternative trustee. Irrevocable Trust § 7.1; Revocable Trust § VII.A.[1] During the Decedent's lifetime under the Irrevocable Trust, both Appellants and Appellees were the beneficiaries of the net income from the trust's assets. Irrevocable Trust § 4. Aside from Decedent's property located at 130 Lawrence Court, Tiverton, Rhode Island-which was to be held "in trust for the benefit of Grantor's companion, Lisa Correia, and shall allow her to reside on the premises for the duration of her life . . ."-both Appellants and Appellees were entitled to equal shares of the Irrevocable Trust's assets upon Decedent's death. Irrevocable Trust § 5.2(a), (b.) This section of the Irrevocable Trust specifically states:

"(b.) The Trustee shall divide all of the remaining property into as many equal shares as there shall be children of the Grantor then living and children of the Grantor then deceased with issue then living, one (1) share to be set aside for each then living child of the Grantor and one (1) share to be set aside for the then living issue of each child of the Grantor then deceased with any issue then living, and shall dispose of said shares as follows:
"The share set aside for a then living child of the Grantor shall be distributed to such child, outright and free of all trusts. When funding the shares created for Grantor's children in the previous paragraph, the Trustee shall, to the extent possible in order to create such equal shares, fund the shares created for Lindsey J. Borges and Paul A. Borges, Jr. with the real property that I may own at the time of my death located at 24 C & D Maple Avenue, Little Compton, RI and shall fund the shares created for Sarah Mendes and Susan Borges with any real property that I may own at the time of my death located in the State of New Hampshire. Said property may be divided between their respective trust shares in the sole and absolute discretion of the Trustee." Irrevocable Trust § 5.2(b.) (Emphases added).

         On May 4, 2012, the Decedent executed a quitclaim deed transferring title to the Property to the Irrevocable Trust, and he continued to live at the Property until his ...


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