Opinion
10-P-1757
12-06-2011
LISA PURCELL v. RICHARD LANDERS, executor. [FN1]
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff, Lisa Purcell, appeals from an order striking her objections and allowing her father's will. We affirm in part, reverse in part, and remand for further proceedings.
Background. Walter V. Haley (Haley or decedent) died on February 6, 2008. At the time of his death, he was estranged from the plaintiff, his adopted daughter ; his will, dated August 18, 2005, named as his executor, his friend, the defendant, Richard Landers (defendant or executor). After the defendant filed a petition to probate the will, the plaintiff filed an affidavit, objecting to the defendant's appointment as executor, based on allegations of forgery, duress or undue influence, and concerns for the genuineness of the will and the circumstances surrounding its execution. After lengthy pretrial litigation, the trial judge restricted the number of trial witnesses to two witnesses per party, in addition to the parties themselves.
In 1992, the plaintiff admitted to sufficient facts and a guilty finding was entered on the charge of threatening to commit a crime against Haley; she was acquitted of an accompanying charge of larceny over $250. Haley had reported to the Tewksbury police that the plaintiff had taken a large sum of cash from his bank account and threatened to burn his house down with him in it. The plaintiff was acquitted of the larceny charge because the money was taken from an account she held jointly with Haley.
The plaintiff did not challenge Haley's capacity.
There was evidence that the defendant and Haley had been friendly for over forty years and became daily companions after the death of Haley's wife in 1984. The defendant referred Haley to a lawyer, Reynold Ilg, for estate planning and drove Haley to Ilg's office on two separate occasions for the preparation of Haley's will. Ilg, one of the defendant's two trial witnesses, testified that the defendant never forced himself into the meetings but merely made the introduction. In their discussions, Haley told Ilg that he wanted the will to provide that the plaintiff receive nothing more than one dollar because she had taken $26 thousand from him during his lifetime, and that the defendant receive the remainder of the estate. Ilg confirmed that he prepared the will at issue and that his signature appeared in the notary block. At no time during the execution of the will, did Ilg feel that Haley was under duress or pressure, or fraudulently enticed, to create the will.
The defendant's second witness was a social worker.
The will was witnessed by Francis and Michael Talty, both of whom are alive and residing in Massachusetts; it was entered in evidence over the plaintiff's objection that the attesting witnesses had not testified to execution as required under G. L. c. 191, § 1. The judge allowed the will, informing the plaintiff that 'if [she] wished to she could have subpoenaed in the witnesses.' Although the plaintiff testified, she called no other witnesses.
The judge struck the objections and allowed the will for probate; in his findings, he noted the close relationship between the defendant and the decedent and contrasted the plaintiff's estrangement from the decedent. Specifically, the defendant had been a 'supportive friend, companion and helper to [Haley] for a substantial period of time both preceding and following the death of [Haley's] wife in 1984.' In addition, the defendant became Haley's legal guardian as his health began to deteriorate. To the judge, '[t]he executor appears to have been, in the end, the one true friend that the decedent had.' On the basis of these findings, all of which were supported by the evidence, the judge reasonably concluded that the defendant became the 'natural object of the decedent's bounty'.
By contrast, the plaintiff had been estranged from her father since 1992 (see note 2, supra). The judge noted that the decedent had been fearful of the plaintiff and stated that it was clear that she 'was not and, under the circumstances, could not be the object of the decedent's bounty.'
Striking the objections. A will contestant who files an affidavit of objections to a petition to probate a will must provide specific facts and grounds upon which the objection is based. Rule 16(a) of the Rules of the Probate Court (1987). O'Rourke v. Hunter, 446 Mass. 814, 817 (2006). If the affidavit fails to comply with the requirements it may be struck on motion by the proponent of the will. Rule 16(b) of the Rules of the Probate Court. O'Rourke, supra. The trial judge is in the best position to judge the credibility of the witnesses and the weight of the evidence; his findings will not be disturbed unless they are shown to be clearly erroneous. See Custody of Eleanor, 414 Mass. 795, 799 (1993). Here, the judge properly struck the plaintiff's objections on the ground that they were 'vague' and 'utterly and completely without merit'.
Because we affirm the portion of the order striking the plaintiff's objections, we do not address her argument that evidence of her allegations of wrongful death of the decedent was wrongfully excluded.
Allowance of the will. 'On the issues of soundness of mind and due execution, the burden of proof is on the proponent.' Tarricone v. Cummings, 340 Mass. 758, 761 (1960). 'To prove that the instrument was executed according to the law the proponent must prove that all the formal requirements of G. L. c. 191, § 1, were complied with, and that the decedent executed it with knowledge of its contents and with the intention that it should be his last will.' Ibid. 'A long line of cases stemming from Chase v. Lincoln, 3 Mass. 236 (1807), establishes the right of heirs contesting the probate of a will to insist on the testimony of all attesting witnesses.' Werber v. Werber, 62 Mass. App. Ct. 927, 927 (2004).
In this case, neither attesting witness testified; nor was their absence explained. The attorney testified about drafting the will and witnessing its execution; he also confirmed his role as notary and the fact that both attesting witnesses (Francis and Michael Talty) were alive and residing within the Commonwealth. The plaintiff properly objected and that objection forms the primary basis for her appeal.
We agree that the judge erred by not enforcing the requirement of testimony by attesting witnesses. Instead, he inappropriately shifted the burden of producing the witnesses to the plaintiff. As a result, despite the judge's diligence in preparing thoughtful findings, the defendant failed to satisfy his burden to prove proper execution of the decedent's will as required under G. L. c. 191, § 1.
The Massachusetts Uniform Probate Code was adopted in 2008. St. 2008, c. 521. Portions of the Code became effective in 2009. Id. at § 44. However, § 2-504 and § 3-406 of G. L.c. 190B, added to streamline the process of proving proper execution through the appearance of a notary's signature, will not become effective until January, 2012. St. 2010, c. 409, § 23.
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The portion of the order allowing the will is reversed and the case is remanded for further testimony by the attesting witnesses and/or related evidence. The remainder of the order is affirmed.
So ordered.
By the Court (Vuono, Sikora & Hanlon, JJ.),