|By Pat Grossmith, The New Hampshire Union Leader, Manchester|
|McClatchy-Tribune Information Services|
Aug. 06--CONCORD -- A federal judge dismissed a lawsuit filed by a blind, disabled man against a life insurance company that mistakenly paid out nearly $100,000 to a fraudulent trust set up by a dishonest Manchester lawyer instead of sending it to him.
"Unfortunately for plaintiffs, the (attorney Thomas and retired police Capt. Michael) Tessiers had positioned themselves to steal the proceeds of the insurance policy" regardless of whether the check was made payable to the fraudulent trust or the actual trust," U.S. District Court Judge Paul Barbadoro wrote in dismissing the lawsuit filed by Thaddeus J. Jakobiec of Manchester against Merrill Lynch Life Insurance Co.
Jakobiec filed the lawsuit in an attempt to recoup insurance money stolen by the Tessiers, his cousins, both of whom were convicted for stealing from a trust fund set up to take care of him.
Michael Tessier of Hooksett, a retired Manchester police captain, is serving home-confinement after being sentenced to a year in jail for the theft of $75,000, while Thomas Tessier, a once-prominent Manchester lawyer, was sentenced to six years in prison for stealing $2.3 million from Thaddeus and his brother, Dr. Frederic Jakobiec.
Barbadoro, in dismissing the lawsuit against Merrill Lynch Life Insurance, said the Jakobiecs could not prove the alleged breach of the insurance contract caused their injury.
According to court records, Beatrice Jakobiec, the Jakobiecs'' mother, bought a life insurance policy in 1989. Upon her death, 50 percent of the proceeds was to go to Frederic while the other half was to go to Frederic as trustee for Thaddeus in a trust created a year earlier by Beatrice's sister, Lillian Smillie. Thaddeus was the sole beneficiary of that trust.
Beatrice died in May 2001 and at her wake, Frederic asked Thomas Tessier to serve as administrator of her estate.
According to Barbadoro's ruling, Tessier did not hear from Frederic, even though he made numerous attempts to contact him, so he decided to sort through Beatrice's financial statements and unread mail. He learned she had purchased the insurance policy.
On June 11, 2002, Tessier filed an ex-parte petition in probate court requesting Frederic be removed as trustee of the Smillie Trust and that his Thomas Tessier's brother, Michael Tessier, be appointed the trustee. He maintained Frederic had stopped paying for Thaddeus' care and had not responded to Tessier's multiple attempts to contact him. The probate court granted the petition the next day.
About two weeks later, Tessier prepared a fraudulent trust document, the "Thaddeus J. Jakobiec Irrevocable Inter Vivos Trust," naming his brother the trustee and beneficiary (the fraudulent trust). That same day, Tessier filed a petition for administration of Beatrice's estate naming Thaddeus as the petitioner and himself as the administrator. He forged Thaddeus' signature on the petition and on a durable power-of-attorney form and forged Frederic's signature on a declination-of-interest form.
Tessier did not list the life insurance policy on the petition, although he was not required to, nor did he inform the probate court of its existence. Less than a week later, he notified Merrill Lynch that Beatrice had died and he was representing Thaddeus.
Merrill Lynch identified the "Thaddeus J. Jakobiec Trust" as the beneficiary, but Tessier replied the trust had been established under the will of Lillian Smillie and Michael Tessier was now trustee. He enclosed a copy of the certificate of appointment issued by the probate court, but then listed the fraudulent trust, rather than the Smillie Trust, as the claimant.
Merrill Lynch asked for a clarification, explaining the trust designated in the insurance policy was established in 2002 and had a different taxpayer number than the one Tessier listed. Tessier, in follow-up letters, said he provided the wrong taxpayer number which corresponded to a "totally separate and distinct trust" with Michael Tessier the trustee.
He gave the correct taxpayer number for the Smillie Trust, and asked Merrill Lynch to pay the insurance policy to "Michael Tessier, Successor Trustee of the Lillian Smillie Trust for the benefit of Thaddeus Jakobiec."
Merrill Lynch issued a check for $98,533.76 payable to "The Thaddeus J. Jakobiec Trust," the fraudulent trust. Michael Tessier endorsed it and turned the check over to his brother, who deposited it in his personal account. He later split it with Michael.
Barbadoro concluded the Jakobiecs could not prevail in the case because they would have suffered the same harm regardless of whether Merrill Lynch had made the check out to the actual trust.
"Unfortunately for plaintiffs, the Tessiers had positioned themselves to steal the proceeds of the insurance policy," the judge wrote.
"Because Tessier concealed the insurance policy from the probate court and succeeded in having his brother Michael substituted as trustee of the Smillie Trust, he was in a position to complete his criminal scheme even if Merrill Lynch had made the policy proceeds payable to the correct trust," the judge wrote.
The Union Leader was unable to reach the Jakobiecs' or Merrill Lynch's attorneys for comment.
(c)2012 The New Hampshire Union Leader (Manchester, N.H.)
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Distributed by MCT Information Services
06 Aug, 2012
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