Friday, June 14, 2024

Probate Judge Keeps Napi’s Estate Documents Out of Public Eye


BARNSTABLE — A judge in Barnstable County Probate and Family Court denied a motion filed by Independent reporter Sam Pollak to unseal documents related to the guardianship and conservatorship of Helen Haunstrup, wife of the late Provincetown restaurateur Anton “Napi” Van Dereck, by Napi’s former financial adviser, Helen Haunstrup.

First Justice Susan Sard Tierney heard arguments from Pollak and lawyers representing McEneaney and Haunstrup on May 13.

On May 21, Tierney issued an impoundment order for the next 20 years. The order, which prevents the public from viewing documents related to Van Dereck’s $17-million estate until June 2044, emphasized Haunstrup’s privacy interests as cause for the impoundment.

Van Dereck died on Dec. 25, 2019, leaving his estate primarily to Haunstrup, who had been diagnosed with dementia the year before. A doctor declared her unfit to manage the estate in January 2020.

Tierney appointed McEneaney as Haunstrup’s conservator in November 2021. McEneaney is also in charge of carrying out Van Dereck’s estate plans and is the sole trustee of both the Van Dereck Trust and the Van Dereck Charitable Living Trust, which oversee the estate’s funds. (See related story.)

Judge Tierney first impounded the documents in 2021, shortly after appointing McEneaney as conservator. She did not issue a written impoundment order at that time — a violation of the state’s trial court rules on impoundment.

According to the Uniform Rules on Impoundment Procedure, the order “shall be entered on the docket, kept in the public file, and made available for public inspection. The order shall provide sufficient information for the public to identify the case caption, the case number, and to ascertain the grounds, duration, and scope of the impoundment.”

Judge Tierney’s 2024 decision includes the required public impoundment order.

In challenging the impoundment, Pollak appeared pro se and in his capacity as a reporter. Opposition to his motion was filed by attorneys Richard Novitch, who argued on behalf of McEneaney, and Robert Brown, Haunstrup’s court-appointed guardian ad litem, whose job is to protect her rights and act in her best interest.

At the May 13 hearing, Tierney ordered four members of the public and two reporters to leave the courtroom. Motions filed by Pollak, Novitch, and Brown before the hearing, however, were not impounded.

“After Napi’s death, the disposition of his estate and assets became of great interest to the community, especially the fate of the iconic restaurant and real estate which housed many of the restaurant’s employees,” Pollak’s motion stated.

Van Dereck owned several residential properties including a 12-unit complex at 25-27 Bradford St. frequently referred to as Napiville. Provincetown’s board of health is moving to place that property into court-ordered receivership to ensure that tenants there have safe and sanitary living conditions. In January, McEneaney sent letters to all tenants at the property telling them to leave by April 1, partly because the town’s orders to connect the property to the sewer system represent “an astronomical expense I am not authorized to make.”

Pollak’s motion argued that various entities have an interest in the impounded records. Napi had frequently told leaders of the Center for Coastal Studies, a nonprofit based in Provincetown, that it would benefit from his estate. Pollak also wrote that the town has an interest in the case because the estate has accrued $19,200 in fines from the Provincetown Health Dept. for violations of the state sanitary code, including hazardous electrical work and backed-up cesspools.

The impounded documents “are of legitimate public interest to a community that is experiencing an unfathomable housing crisis,” Pollak wrote.

Pollak also wrote that the impoundment has obscured the Van Derecks’ own wishes for the estate. “On information and belief, tenant evictions and sale of Napiville are inconsistent with Helen and Napi’s expressed wishes laid out in the Van Dereck Charitable Trust” documents, which are impounded, Pollak wrote.

McEneaney’s attorney, Richard Novitch of the Boston law firm Todd & Weld, and Haunstrup’s court-appointed lawyer, Robert Brown of the Falmouth law firm Brown & Barbosa, jointly signed their motion against unsealing the documents.

Their motion emphasized Haunstrup’s privacy, the “prurient desires” of the public, and Pollak’s financial self-interest.

“If what Mr. Pollack [sic] says is true, namely that Mrs. Haunstrup is indeed a ‘beloved member of the Provincetown community,’ he should be striving to protect, not expose for the public’s prurient desires, her personal, sensitive, and private information,” Novitch and Brown wrote.

They wrote that Pollak’s motivation was to “make money off of” the release of Van Dereck’s estate documents.

“Mr. Pollack [sic] also bleats about a purported ‘housing shortage,’ as if that is something Mrs. Haunstrup and her fiduciaries could, should or have any responsibility to attempt to cure. It isn’t,” the attorneys wrote.

Three households have moved out of Napiville since McEneaney’s eviction letters in January, but eight more units on the property are currently occupied and facing eviction, the Independent reported last month.

In her decision, Judge Tierney wrote that Haunstrup’s privacy interests outweigh the public’s right to view the documents.

“When a private individual is involved in a court matter, good cause for impoundment may be found when disclosure of the materials could lead to unreasonable interference with the right of privacy,” Tierney wrote in the impoundment order.

“The underlying cases concern the estate and property of Ms. Haunstrup and her financial interests, which the Court finds are inherently private matters,” the order continues.

The decision describes Haunstrup, who is 83, as incapacitated but also refers to her expressed wishes. A 2021 affidavit by Brown, written almost two years after Haunstrup had been declared unfit to make financial decisions and cited by both Novitch and Brown’s motion and Tierney’s May 2024 decision, describes “Ms. Haunstrup’s interest in keeping the bequests and beneficiaries of her will private and confidential, for various reasons.”

Tierney’s decision also notes that, when the documents were first impounded in 2021, “no opposition to the impoundment was asserted at that time.”

According to the uniform rules of impoundment procedure, any “party or interested nonparty” may “file a motion to modify or terminate an order of impoundment.”

“A proper challenge to the continued validity of an impoundment order” could still be raised by other parties even after Judge Tierney’s May 21 decision, according to state trial court rules.

Full Article & Source:
Probate Judge Keeps Napi’s Estate Documents Out of Public Eye

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