Opinion
21-P-459
03-31-2022
In the MATTER OF the ESTATE OF Steven R. SIMPSON.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
In this appeal we conclude that a Probate and Family Court judge properly struck an objection to the appointment of a personal representative and to the formal probate of a will. The judge did so because the objector failed to timely file "a written affidavit of objections to the proceeding, stating the specific facts and grounds upon which the objection is based," as required by G. L. c. 190B, § 1-401 (e ). Instead, the objector filed only a "memorandum of objection" that was not signed under oath or under the penalties of perjury.
Background. In May of 2020, shortly after the death of Steven R. Simpson (decedent), Juanita C. Gallagher (petitioner) filed a petition for formal probate of what she asserted to be the decedent's will and for appointment as the personal representative. Attached to the petition was a copy of the will, which named the petitioner as executrix and as heir of the decedent's entire estate. In a subsequent filing, the petitioner asserted that she had been the decedent's "life partner for more than thirty years." The petitioner was appointed as special personal representative, and a citation issued with a return date for the filing objections of July 24, 2020.
On July 23, 2020, John D. McCormack (objector), through counsel, filled out and filed a court-issued, pre-printed notice of appearance and objection, form MPC 505a. The objector checked a box on the form indicating that "[a] written affidavit of objections signed by the above-named person," i.e., the objector, would be filed "within [thirty] days after the return date."
The objector then timely filed a document entitled a "memorandum of objection," not signed under oath, asserting that the decedent's signature on the will was a forgery. Attached to the memorandum was the written opinion of a person claiming expertise in handwriting analysis. The opinion asserted, based on comparisons of attached exemplars of the signatures of the decedent and the petitioner, that the will was not signed by the decedent and was "very probabl[y]" signed by the petitioner. Like the memorandum, the opinion was not signed under oath.
The memorandum asserted that the objector was the assignee of the interests in the estate held by the decedent's two siblings. The memorandum further stated that those siblings were the decedent's only living heirs, but it stated no basis for that assertion.
The petitioner moved to strike the appearance and objection, as authorized by G. L. c. 190B, § 1-401 (f ), on the ground that it did not satisfy the statutory requirement of an "affidavit." In response, on October 13, 2020, the objector filed an affidavit that largely tracked the substantive allegations of his earlier-filed memorandum. A judge allowed the motion to strike and then a decree and order entered admitting the will to probate and appointing the petitioner as personal representative to administer it. This appeal followed.
Section 1-401 (f ) provides as follows: "If an affidavit of objections fails to comply with the requirements of the foregoing section (e), such affidavit of objections and the appearance of the party filing such affidavit of objections may be struck on motion after notice at any time after filing of such affidavit of objections."
We are unpersuaded by the petitioner's argument that, because the objector's notice of appeal listed only the order striking the appearance and objection, we lack jurisdiction of the appeal. The petitioner apparently contends (1) that the order allowing the motion to strike was interlocutory and unappealable and (2) that the notice, although timely filed after entry of the final decree and order, failed to mention that decree and order, so that nothing is before us. We note that "[a] party need not claim an appeal from an interlocutory order to preserve the party's right to have such order reviewed upon appeal from the final judgment." Mass. R. A. P. 3 (a) (2), as appearing in 481 Mass. 1603 (2019). It is true that "[t]he notice of appeal ... shall, in civil cases, designate the judgment, decree, adjudication, order, or part thereof appealed from." Mass. R. A. P. 3 (c) (1), as appearing in 481 Mass. 1603 (2019). Here, the notice of appeal did just that, designating the order the petitioner is challenging. That it was interlocutory before final judgment does not make it unappealable now. In any event, some imprecision in designating the judgment or decree appealed from may be overlooked if circumstances warrant, as they do here. See Guardianship of Kelvin, 94 Mass. App. Ct. 448, 451 n.8 (2018) ; Fazio v. Fazio, 91 Mass. App. Ct. 82, 84 n.7 (2017) (notice of appeal may be treated as appealing orders not specified where issues are fully briefed and appellee "has not claimed that she was misled by the notice of appeal"). It is plain that the objector challenges the final decree insofar as it entered without the merits of his objection having first been adjudicated.
Discussion. "It is elementary that the meaning of a statute must, in the first instance, be sought in the language in which the act is framed, and if that is plain, ... the sole function of the courts is to enforce it according to its terms." James J. Welch & Co. v. Deputy Comm'r of Capital Planning & Operations, 387 Mass. 662, 666 (1982), quoting Caminetti v. United States, 242 U.S. 470, 485 (1917). See Emma v. Massachusetts Parole Bd., 488 Mass. 449, 453 (2021) (same). Here, § 1-401 (e ) plainly requires an "affidavit." " ‘An affidavit is a statement in writing sworn before an officer authorized to administer an oath.’ Murphy, petitioner, 321 Mass. 206, 213 (1947), and cases cited. Under G. L. c. 268, § 1A, ... a statement containing ‘a written declaration that it is made under the penalties of perjury’ satisfies a requirement of an affidavit.’ " Galvin v. Town Clerk of Winchester, 369 Mass. 175, 177 (1975). Under the predecessor of § 1-401 (e ) and (f ), Rule 16 of the Rules of the Probate Court, we said that the word " ‘affidavit’ ... implies a statement under oath by a person having direct knowledge of the facts which he verifies, except as otherwise clearly stated in the affidavit itself." Howland v. Cape Cod Bank & Trust Co., 26 Mass. App. Ct. 948, 949 (1988). The memorandum of objection filed here did not meet these criteria.
"[T]he MUPC [Massachusetts Uniform Probate Code] contains strict procedural constraints to which practitioners must pay careful attention." Leighton v. Hallstrom, 94 Mass. App. Ct. 439, 444 (2018). What we recently said of certain MUPC intestacy provisions is pertinent here: the provisions "are strict, and for good reason -- there is a need for finality ... so that the property may be distributed and the heirs may go on with their lives." Matter of Estate of Widdiss, 98 Mass. App. Ct. 808, 813 (2020). See Cusack v. Clasby, 94 Mass. App. Ct. 756, 759 (2019), quoting G. L. c. 190B, § 1-102 (b ) (3) ("[one] purpose of the MUPC ... is to promote a ‘speedy and efficient system for liquidating the estate of the decedent and making distribution to the decedent's successors’ " [citation omitted]).
Section 1-401 (e ) and (f ), like the predecessor court rule, serve "to help screen out frivolous attacks on wills" (citation omitted). O'Rourke v. Hunter, 446 Mass. 814, 817 (2006). The affidavit requirement helps ensure that no objection can hold up the probate process unless it meets the threshold requirement of being supported by factual statements made under the penalties of perjury. That in this case the grounds for objection do not appear frivolous -- indeed, they are concerning -- does not diminish the importance of those grounds being asserted under oath. Nor is the affidavit requirement particularly onerous.
The objector argues that an affidavit "would not have been appropriate" in this instance because the assertions therein would have to be based on personal knowledge, which he lacked. We are unpersuaded. Some of the facts asserted in his memorandum do appear to be within his personal knowledge -- for example, the nature of his interest in the estate. See note 1, supra. Others, such as the assertions in the handwriting analyst's written opinion, presumably could have been put in the form of an affidavit and signed by the analyst.
The court-issued notice of appearance and objection form envisions the filing of "[a] written affidavit of objections signed by the above-named person," i.e., the objector. We do not read the form to bar the filing of an additional affidavit signed by a person other than the objector. Section 1-401 (e ) does not expressly require that an objector personally sign an affidavit of objections. We express no view on whether an affidavit signed by a person other than the objector could suffice by itself to support an objection.
The objector also suggests that he satisfied the affidavit requirement by attaching to his memorandum attested copies of documents purportedly signed by the decedent or the petitioner and filed in other courts. This argument fails. Even if the attestations were the equivalent of affidavits by court officials asserting that the documents were true copies of originals filed with the relevant courts, the attestations themselves did not state the ground of objection: that the decedent's signature on the will was a forgery.
Finally, the objector argues that his later affidavit, filed in response to the motion to strike, should be treated as supplementing his original, timely-filed memorandum and thus as satisfying the affidavit requirement. But the affidavit plainly was not filed by the statutory deadline.
Under the predecessor court rule, where an affidavit was timely filed, an amendment to that affidavit was permitted in some circumstances. See Hobbs v. Carroll, 34 Mass. App. Ct. 951, 952 (1993).
Conclusion. The order allowing the motion to strike is affirmed.
The objector did not argue to the judge, and does not argue to us, that the statute conferred discretion on the judge to deny the motion to strike despite the deficiencies discussed supra.
So ordered.
Affirmed