Opinion
No. 11–P–1831.
2012-06-19
Rose I. FLYNN v. Dorothy RAGAB.
By the Court (WOLOHOJIAN, SMITH & AGNES, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Dorothy Ragab contested the validity of the will of Patricia Soter, Ragab's sister, by filing an affidavit of objections in the Probate and Family Court. In that affidavit, Ragab alleged that petitioner Rose I. Flynn exerted undue influence over Soter to convince her to make a will that was favorable to Flynn. On appeal, Ragab contends that the probate judge erred in allowing Flynn's motion to strike Ragab's amended affidavit of objections on March 9, 2011. Flynn counters that the judge correctly ruled that Ragab's amended affidavit did not satisfy the requirements of rule 16(a) of the Rules of the Probate Court (1987), because it did not allege subsidiary facts which showed that Flynn actually exerted improper means to procure the contested will. We agree. Under rule 16(a), any party filing an appearance to object to a petition to probate a will must file “a written affidavit of objections to the petition, stating the specific facts and grounds upon which the objection is based.” In order for an affidavit to satisfy rule 16, there must be “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.” Brogan v. Brogan, 59 Mass.App.Ct. 398, 400 (2003), overruled on other grounds, O'Rourke v. Hunter, 446 Mass. 814, 814–815 (2006). The four elements that a party must prove at trial in order to show undue influence are “that an (1) unnatural disposition has been made (2) by a person susceptible to undue influence to the advantage of someone (3) with an opportunity to exercise undue influence and (4) who in fact has used that opportunity to procure the contested disposition through improper means.” Hernon v. Hernon, 74 Mass.App.Ct. 492, 497 (2009), quoting from O'Rourke v. Hunter, 446 Mass. at 828.
Ragab's additional brief argument regarding Soter's testamentary capacity is waived, as it was never raised before the trial court. See Kirk v. Commonwealth, 459 Mass. 67, 75 n. 11 (2011).
We note that the Rules of the Probate Court, although effective at the time of the motion, have since been combined with and supplanted by the Supplemental Rules of the Probate and Family Court (2012).
While Flynn raises a variety of additional arguments in support of the trial court's decision, given our disposition of the case, we need not address them.
While Ragab contends that rule 16 affidavits should be evaluated on the same standard as normal civil complaints, “the standard by which a judge may evaluate a rule 16 affidavit is somewhat more demanding than the highly indulgent one that applies to complaints.” Brogan v. Brogan, 59 Mass.App.Ct. at 399–400.
In this case, Ragab has averred some subsidiary facts as to the first three elements in either her original or amended affidavit. However, on the fourth element, all Ragab has provided is the bald statement that she “believe [s] [Flynn] exploited my sister and pressured her to execute a will which was not consistent with her desires.” This allegation is, in essence, a restatement of the fourth element of undue influence and not a “specific subsidiary fact [ ]” which, if proven at trial, would constitute grounds for contesting the will. See Brogan v. Brogan, 59 Mass.App.Ct. at 400. Ragab's subsidiary allegations as to the first three elements, standing alone, even if proven at trial, would not establish nor warrant an inference that Flynn actually asserted undue influence over Soter. Thus, the rule 16(a) standard was not met and the judge did not err in striking Ragab's amended affidavit.
Given our disposition of this case, we need not resolve whether the averments of the original affidavit are properly before this court.
Order allowing motion to strike amended affidavit of objections affirmed.