Opinion
No. 12–P–277.
2013-02-8
Rogers N. FOWLER v. George S. KULHOWVICK.
By the Court (GRAHAM, GRAINGER & SIKORA, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Rogers N. Fowler appeals from an order by a judge of the Probate Court denying his petition to vacate a decree allowing the will of the decedent Doris Rogers. We address the claims of error presented by Fowler seriatim.
Jurisdiction/Due process. The defendant, George S. Kulhowvick, who was also the named executor in the will at issue, presented the will for probate in February of 2010. Kulhowvick served his petition for allowance of the will on all of the identified legatees by mail and publication in compliance with an order from the judge. Fowler, his wife Gloria, and his son Kenneth were each identified as interested parties under the will, but did not receive actual notice. Fowler first learned of the petition by inquiring at the Probate Court in late April, 2010, after the court had allowed Kulhowvick's petition on April 6th. Fowler filed a petition to vacate the allowance of the will and to be allowed to file objections. The judge determined that notice was defective and ordered a hearing to determine whether Fowler could substantiate claims of incompetence and undue influence. We are unpersuaded by Fowler's jurisdictional argument that the April 6th decree allowing Kulhowvick's petition is void because Fowler did not receive notice. A decree allowing the probate of a will cannot be vacated solely for a defect in service. See Tucker v. Bowen, 354 Mass. 27, 32, 234 N.E.2d 896 (1968), quoting from Donnell v. Goss, 269 Mass. 214, 217, 169 N.E. 150 (1929) (“[S]uch a decree ‘... is in the nature of a judgment in rem establishing the will against all the [world], even if the parties interested received no notice’ ”). Rather, a probate judge has discretion to vacate a decree only after ascertaining whether the party seeking revocation can present “substantial and meritorious grounds” against allowance of the will. Id. at 34, 169 N.E. 150. Here, after finding that notice was defective, the probate judge ordered a hearing to evaluate whether Fowler had substantial and meritorious grounds against allowing the will. This was the proper procedure under our precedents.
Fowler's argument relying on rule 6 of the Rules of the Probate Court is correct insofar as the citation did not require “registered or certified mail.” We discern no prejudice. Fowler was given a full opportunity to present his case at an evidentiary hearing without limitation on the number of affidavits or witnesses he might present—an opportunity of which he availed himself fully.
Sufficiency. a. Testamentary capacity. The proponent of a will has the burden of proof on the issue of testamentary capacity, and enjoys a rebuttable presumption that testamentary capacity existed. See O'Rourke v. Hunter, 446 Mass. 814, 827, 848 N.E.2d 382 (2006). The presumption has effect until “evidence sufficient to overcome the presumption” is presented. Ibid. The judge's view of the evidence is subject to review for abuse of discretion. See Tucker v. Bowen, supra at 33, 234 N.E.2d 896. The judge correctly rejected the contention that he was entitled to review only the affidavits presented by the petitioner in determining whether the presumption had been rebutted with evidence sufficient to vacate the decree allowing the will. The judge properly considered all the evidence submitted by the parties, made appropriate determinations concerning credibility
and materiality, and issued a thoughtful order and memorandum of decision specifying his findings and conclusions. There was no error.
The judge rejected the opinion of Don Lewittes, Ph.D., a psychologist who was asked by Fowler's counsel to evaluate the testamentary capacity of the testatrix as of February 21, 2007. The judge held that Dr. Lewittes's opinion was without a proper basis because he did not interview or speak with attorney O'Day or the witnesses to the testatrix's will to ascertain their observations on the day the will was executed. Rather, Dr. Lewittes's opinion was based almost exclusively on his review of the affidavits submitted by Fowler, which were written by caregivers who began caring for the testatrix long after the execution of the will.
b. Undue influence. Unless a fiduciary benefits from a testamentary disposition in circumstances suggesting “[a] role in the [testator's] decision,” the burden of proof rests with a party asserting undue influence. Rempelakis v. Russell, 65 Mass.App.Ct. 557, 567, 842 N.E.2d 970 (2006). While the evidence that the defendant did something “of substance to bring about the bequest to him and his family,” ibid., is scant, the judge nevertheless approached the issue as though the defendant had the burden to prove an absence of undue influence. Even with this benefit conferred upon the petitioner, we discern no error in the judge's findings. The affidavits supporting the petition to vacate were uniformly provided by interested parties. The defendant resided at a considerable distance from the testatrix. As the judge noted, the testimony of attorney O'Day and the affidavits of witnesses to the 2007 will were clear and unequivocal.
They speak to the testatrix's lucidity, her understanding of the type and amount of her assets, and her ability to communicate her wishes.
These findings support the rulings on both competency and undue influence.
Elder abuse. The judge correctly ruled that there was no evidence to support any claim of elder abuse. See G.L. c. 19A §§ 14 et seq. (2004). Inasmuch as the judge did not raise the issue of Mass.R.Civ.P. 11(a), as amended, 456 Mass. 1401 (2010), in this context, we will emulate his restraint.
Order denying petition to vacate decree affirmed.