Thursday, April 14, 2005

Joan Plays Ball

As one prominent Boston attorney has forewarned, the dispute between Joan Kennedy and her children is bound to become a "tawdry affair." But unlike so many prior entanglements, in which the Kennedy clansmen seem to be extricated unruffled, it looks as though Joan may have gained the upper hand.

press reports have noted that Mrs. Kennedy transfered her ownership of her Squaw Island home six months after her children had been granted temporary guardianship over her affairs. This implies that the transfer to Webster E. Jansen, Trustee of Joan B. Kennedy 2004 Real Estate Trust may be clouded by the issue of her authority or capacity to sign such a deed. Previous reports have indicated that the lawyer for the Kennedy children has filed a document in the Barnstable County Registry of Deeds that would impose a cloud on the title to the property, preventing its sale to a bona fide purchaser.

But records at the Barnstable Registry of Deeds reveal a different story.

The property in question, deeded to Mrs. Kennedy by Senator Kennedy as part of their 1983 divorce, is registered land, the record of which is strictly controlled by a separate office of the registry. All encumbrances imposed on registered land are noted on the property's Certificate of Title. The Certificate of Title for Mrs. Kennedy's land does not contain any Notice or Order from the Barnstable Probate Court with respect to the guardianship appointment. As of the date of the transfer to Mr. Jensen, her Trustee, there was no cloud on the Certificate of Title suggesting that she lacked the capacity to execute the deed. While news reports indicate that "an attorney for the Kennedy children as filed paperwork at the Barnstable County Registry of Deeds alerting possible buyers that they cannot get clear title," this is not so.

Ironically, statutes regarding guardians and conservatorships provide for such recording as early as the time the original petition is filed. There are several provisions of Massachusetts law governing the appointment and powers of guardians. Unless the children allege that their mother is mentally diseased or retarded, they would most likely be petitioning for guardianship under the provision governing "spendthrifts:

"A person who, by excessive spends, wastes or lessens his estate as to expose hiumself or his family to want or suffering...may be adjudged a spendthrift. ...A relative of the alleged spendthrift may file a petition in the probate court, stating the facts and circumstances of the case and praying that a guardian be appointed." G. L. c. 201 s. 8.

"A copy of the petition, with the order of notice thereon, may be recorded in the registry of deeds...where...the spendthrift is located; and if a guardian is appointed...all sales and conveyances of land made by the spendthrift after such record in the registry of deeds...and before the termination of the guardianship, shall be void." G. L. c. 201 s. 10.

There is no copy of any petition for temporary guardianship on record against Mrs. Kennedy's Certificate of Title at the registry of deeds.

Additionally, according to earlier press reports, it appears that perhaps the childrens' legal team dropped the ball a second time as well. Although the records of the guardianship petition are sealed, earlier press reports and statements from the children or their representatives raise questions as to whether or not Mrs. Kennedy was legally under any sort of guardianship at the time she made the transfer.

Earlier press reports have indicated that the children first sought, and received, temporary guardianship in May of 2004. According to one Barnstable County official familiar with the process, a temporary guardianship typically lasts for ninety days, during which a petition for permanent guardianship would be heard. If that was indeed the case in May of 2004, then it appears that the original temporary guardianship would have expired by its terms in August of 2004. The childrens' subsequent petition to continue the guardianship was apparently not filed (according to press reports) until well after the transfer to her trust.

I suggested in an earlier post on this topic that there was more to this than meets the eye. Well a few moments ago, my eye met a document.

It is the deed from Ted Kennedy to Joan Kennedy in 1983.

That deed specifically recognizes Joan Kennedy's right to sell her house, subject to a Right of First Refusal on behalf of the Senator and/or any of his children:

"If Grantee receives a bona fide offer to rent, lease or sell said property from a third party, other than one or more of the issue of the marriage…, which Grantee proposes to accept, Grantee shall forthwith give written notice of such offer to Grantor and the children of the marriage which notice shall contain the name of the third party and the terms and conditions of said proposed rental, lease or purchase. Grantor and the children or any one of them shall have thirty (30) days from the receipt of said notice, by written instrument delivered to Grantee, to elect to rent, lease or purchase said property on the same terms and conditions as the third party’s offer…." (emphasis supplied)

Here we have a proposed transaction that is squarely within the four corners of the deed. Mrs. Kennedy lists her property for sale (through her newly established trust) so that she may receive a bona fide offer to purchase. She thereafter notifies her family and ex-husband of the terms of the offer, and they elect to exercise their right of first refusal or they don't.

I asked in my
earlier post, "why would they so vehemently insist that she is defying them by selling the house, unless their ownership of the house was one of their primary interests in seeking guardianship?"

Well, according to her own deed, Mrs. Kennedy cannot sell the house without offering it to her children and ex-husband first, so her selling the house cannot "spite" her family as has been implied by Teddy Jr.

What comes immediately to mind is that the children wish to have the house remain available to them, but they don't want to be put in a position to exercise their right according to Mrs. Kennedy's time. In other words, they don't want to pay for it. Excellent thinking for those wishing to protect a spendthrift.

Update: From today's Herald, the Trustee of the Joan Kennedy Real Estate Trust says:

"It's not hers to sell. The trust owns the property and I'm the trustee.''

If it his to sell, it is his to sell subject to the right of first refusal retained in the original deed to Joan.

I don't understand why the Trustee does not make that clear.

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