Opinion
16-P-118
04-11-2017
ESTATE OF Americo B. ALMEIDA.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Alan Almeida, Bradley Almeida, and Lesley Almeida-Smith, the three adult children of decedent Americo B. Almeida, appeal from a judgment dismissing their objections to a petition, filed by Shirley Almeida, for appointment as executor of Americo's estate and to probate his will. We affirm.
Because the parties share a surname, we will refer to them individually by their first name.
Background. On August 29, 2013, Americo died testate. In his March 26, 1996, will, Americo gave his wife Shirley "all of [his] property, both real and personal[.]" Americo "intentionally [did] not provide any gifts or dispositions ... to [his] children," except that, "[i]n the event that [Shirley] is not living at the time of [his] death," one-half of "the rest and residue of [his] estate" shall be given to the children in equal shares.
In May, 2014, Shirley petitioned for appointment as executrix of, and to probate, Americo's will. All three children filed appearances and objections to the petition. The objections were accompanied by an affidavit, which was signed by Alan and affirmed by Bradley, in which the children aver that, "[a]t some time in or about 1994 or 1995," Americo and Shirley traveled to the Dominican Republic for a "[two] or [three] day trip" in which Americo obtained a divorce from his first wife (the children's mother) and married Shirley. According to the affidavit, the first wife died in 2008. Shirley moved to strike the affidavit of objections and to admit the will to probate. The motion was allowed by a judge in the Bristol County Probate and Family Court. On June 11, 2015, a decree entered admitting the will to probate and appointing Shirley as the "personal representative." G. L. c. 190B, § 1-201(37), inserted by St. 2008, c. 521, § 9. The children (objectors) timely appealed.
There is no evidence that the affidavit was signed or affirmed by Lesley.
Discussion. We review de novo the judge's ruling on the motion to strike, see Baxter v. Grasso, 50 Mass. App. Ct. 692, 694 (2001), looking solely to the affidavit of objections for "allegations, in verified form, of specific subsidiary facts that, if proved by a preponderance of the evidence, state grounds for contesting the will offered for probate.... The assertions must be based on personal knowledge." Brogan v. Brogan, 59 Mass. App. Ct. 398, 400 (2003), abrogated on other grounds, O'Rourke v. Hunter, 446 Mass. 814, 820 (2006). We draw all inferences in favor of the objectors, Baxter, supra at 696, bearing in mind that the requirement for "specific facts and grounds upon which the objection[s are] based," G. L. c. 190B, §§ 1-401(e ) and (f ), as amended by St. 2012, c. 140, §§ 3 & 4, is intended to screen out "frivolous" challenges to a valid will. Baxter, supra at 694 (interpreting rule 16 of the Rules of the Probate Court [1987], which was superseded by G. L. c. 190B, § 1-401 [e ] & [f ], as amended by St. 2012, c. 140, § 4).
As did the judge, we disregard the objectors' "vague or general" assertions, Brogan, supra, that Americo and Shirley traveled to an unspecified location in the Dominican Republic for two or three days "at some time in or about 1994 or 1995," for the purposes of obtaining an illegal divorce and marriage. Only five assertions in the objectors' affidavit are based on personal knowledge: (1) "[t]hree children were born of the marriage" of Americo to his first wife; (2) "[a]ll 3 children are living and are over the age of legal majority"; (3) the first wife was not in the Dominican Republic when Americo obtained the divorce; (4) the first wife died in 2008; and (5) Americo's will is dated March 26, 1996. "Taking the[se] sworn assertions as true and unchallenged," these facts do not "add up to a conclusion of law" that the will is invalid or that Shirley is not qualified to probate it. Brogan, supra.
The statement found in paragraph three of the will, that the children "have been provided for in another manner," is not "false and untrue in its entirety." The children are provided for in the very next paragraph. There is no "material mistake," as Americo was not required to provide for his first wife after she died in 2008. Americo and Shirley lived together as husband and wife after 2008, and the judge found that they were legally married. See G. L. c. 207, § 6 ; Van Bibber's Case, 343 Mass. 443, 454 (1962). Without deciding whether the judge correctly concluded that Americo and Shirley were legally married pursuant to G. L. C. 207, § 6, Shirley still is entitled to priority for appointment as Americo's personal representative because she is named in the will. See G. L. c. 190B, §§ 3-203(a )(1), as amended by St. 2012, c. 140, § 15. The affidavit of objections does not "state grounds for contesting the will offered for probate." Brogan, supra, and the judge correctly struck it.
Shirley's request for appellate attorney's fees is denied.
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Judgment affirmed.