Hernon v. Hernon

• Decision Date: 25 June 2009
• Docket Number: No. 08-P-0899.,08-P-0899.
• Court: Appeals Court of Massachusetts
• Parties: Stephen HERNON, executor,<SMALL><SUP>1</SUP></SMALL> & others<SMALL><SUP>2</SUP></SMALL> v. Christina HERNON, administratrix.<SMALL><SUP>3</SUP></SMALL>

908 N.E.2d 777

74 Mass. App. Ct. 492

Stephen HERNON, executor,¹ & others² v. Christina HERNON, administratrix.³

No. 08-P-0899.

Appeals Court of Massachusetts, Middlesex.

Argued February 3, 2009.

Decided June 25, 2009.

Jennifer E. Greaney, Boston (Francis J. Sally with her) for the plaintiffs.

Marc D. Padellaro, Cambridge (Suzanne M. Morse with him) for the defendant.

Present: LENK, CYPHER, & COHEN, JJ.

LENK, J.

John Hernon died on September 19, 2005, leaving a last will and testament dated July 21, 2005. The will provided that the entirety of his estate would go to the four daughters of his brother, Stephen Hernon. The testator's niece Christina, daughter of a second brother, Peter Hernon, objected to the will, claiming that it was the product of undue influence. After trial, a Probate and Family Court judge agreed, concluding that Stephen Hernon had exercised undue influence over the testator. Stephen, the named executor of the will, now appeals, claiming that the contestant, Christina, lacks proper standing to contest the testator's will, that the judge improperly shifted the burden of proof to Stephen, and that the judge's findings are clearly erroneous. We affirm.

1. Background. The late John Hernon had no children and never married. He was one of four brothers, and his brother Joseph, who also had no children, predeceased him. His brother Peter had two sons, Nicholas and Patrick, and one daughter, Christina. All three of Peter's adult children were expressly omitted from the testator's will. At the time the will was written, the testator's brother Stephen had four adult daughters (one of whom, Melissa,⁴ was his wife's child from a previous marriage), to whom the testator's will left the entirety of his sizeable estate in equal shares.

2. Standing. a. Individual standing. On November 29, 2005, the return day for the testator's will, Christina filed an appearance on her own behalf that was timely under Rule 2 of the Rules of the Probate Court (2006). However, because Christina's father, the testator's brother Peter, was alive at the time of the testator's death on September 19, 2005,⁵ Christina was not the testator's heir at law when he died, and therefore lacked standing to object individually to the will. Frilich v. Altstein, 3 Mass.App.Ct. 720, 720, 323 N.E.2d 916 (1975) (niece and nephew of decedent "were not next of kin," and therefore niece and nephew "lacked standing as interested persons, either to bring or oppose a petition for administration of this estate"). Nevertheless, Christina filed an affidavit of objections to the will on or about December 28, 2005. Stephen subsequently moved to strike that affidavit, along with her filed appearance. The parties, however, later agreed to remove that motion from the hearing list and proceeded to trial.⁶

After trial, Stephen again moved to strike Christina's appearance and moved for a new trial, whereupon Christina opposed those motions and moved to amend her appearance, so as to reflect her status as administratrix of her father Peter's estate. The judge allowed Christina's motion to amend her appearance and denied Stephen's posttrial motion to strike and motion for a new trial,⁷ essentially holding that Stephen was estopped from bringing a standing challenge posttrial, as he chose to withdraw his original motion and proceed to trial, and as "no harm has inured to either party as a result of Christina's status."

We discern no abuse of discretion in the judge's rulings, and thus proceed as though Christina had properly objected ab initio to the will in her capacity as administratrix of Peter Hernon's estate. See Quimby v. Zoning Bd. of Appeals of Arlington, 19 Mass.App.Ct. 1005, 1007, 476 N.E.2d 241 (1985) ("fact that the original plaintiff may not have had standing or presumptive standing ... is not a reason for denying an amendment to allow the substitution of parties who have standing"); Rule 7 of the Rules of the Probate Court (2006) ("The Court in its discretion may allow the parties to amend their pleadings ... or any act to be done ... and may in all cases impose just and reasonable terms upon the parties").

b. Standing as administratrix of Peter's estate. Stephen next argues that Christina does not have standing in her capacity as the administratrix of her father's estate because her father Peter was alive for approximately five weeks after the testator's will was submitted to probate⁸ and the guardian of his estate did not contest the will during that period.⁹ Stephen argues that an unasserted will contest does not survive a party's death and, therefore, that Peter's right to contest the will died with Peter. Christina argues the opposite, maintaining that a will contest, even an unasserted one, is a property right that descends to the party's estate upon death.

Whether an unasserted will contest survives death is a novel question in this State. In Sheldone v. Marino, the Supreme Judicial Court recognized that "a will contest is in the nature of a property right and, thus, survives the contestant's death." Sheldone v. Marino, 398 Mass. 817, 819, 501 N.E.2d 504 (1986) (will contest actions survive death even in the absence of statute). Contrast Pine v. Rust, 404 Mass. 411, 417-418, 535 N.E.2d 1247 (1989) (privacy interest violated by wiretap is ephemeral personal right and does not survive death in absence of statute). In Sheldone, unlike here, the will contestant had filed an objection prior to his death, and thus the Sheldone court addressed only the survival of an asserted will contest. Nonetheless, the court made no attempt to confine its ruling only to asserted will contests. Instead, it relied on "the analysis of several other jurisdictions," none of which purport to limit the survival of will contests only to those asserted during a contestant's lifetime; indeed, the cases suggest the opposite.¹⁰ Most importantly the Sheldone court thought persuasive and relied upon the analysis of In re Estate of Field, a California Supreme Court case which upheld the validity of an unasserted will contest. See In re Estate of Field, 38 Cal.2d 151, 154, 238 P.2d 578 (1952). Given the Field court's express language that "no such distinction may be made" between an asserted and an unasserted will contest, id. at 155, 238 P.2d 578, we may presume the omission of any limiting language in Sheldone to have been intentional. We now take the logical step of adopting the reasoning of In re Estate of Field, and conclude that "[s]o long as the right survives as a right of property, the result may not be made to depend on whether the contest was commenced before the owner of the right died." Ibid.

Our decision today also comports with the spirit of G.L. c. 228, § 1,¹¹ which, as the court in Sheldone stated, "does not operate to restrict the types of actions which survive but was intended to expand on the number of actions which do survive." Sheldone v. Marino, supra at 819, 501 N.E.2d 504. In concluding that a will contest is one of the "actions which survive by the common law," under G.L. c. 228, § 1, the Sheldone court noted that its decision "is in accord with the decision in Harrison v. Loyal Protective Life Ins. Co., [379 Mass. 212, 215, 396 N.E.2d 987 (1979)]." Ibid. In Harrison, the Supreme Judicial Court held that an action in tort for intentional infliction of emotional distress survived the injured party's death under G.L. c. 228, § 1, such that the injured party's widow, in her capacity as administratrix of her deceased husband's estate, could proceed with the cause of action. Harrison v. Loyal Protective Life Ins. Co., supra at 219, 396 N.E.2d 987. After conducting a statutory analysis, the court in Harrison concluded that a party's vested property rights to bring a cause of action survive his death. The court did not limit this survivability principle to only those actions commenced before the party's death. We therefore hold that Peter's right to contest the testator's will, a property right which vested in Peter upon the testator's death, survived Peter's subsequent death, such that Christina could assert the claim on behalf of Peter's estate within the statutory period.

3. Burden of proof and validity of judge's findings. Stephen correctly points out that it was Christina's sole burden at trial to prove all the elements of the undue influence claim, namely "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." O'Rourke v. Hunter, 446 Mass. 814, 828, 848 N.E.2d 382 (2006), quoting from Tetrault v. Mahoney, Hawkes & Goldings, 425 Mass. 456, 464, 681 N.E.2d 1189 (1997). After careful review of the record, we cannot say that the judge shifted this burden onto Stephen in any way, or that the judge's findings were clearly erroneous, particularly given his explicit credibility determinations. See Matter of the Estate of Moretti, 69 Mass. App.Ct. 642, 650-651, 871 N.E.2d 493 (2007) (findings will not be set aside unless clearly erroneous).

a. Unnatural disposition. Stephen argues that Christina failed to meet her burden of showing that an unnatural disposition occurred here. He contends in this regard that, because Christina never put the issue of the testator's relationship with Melissa (Stephen's stepdaughter) in issue, the judge could not have properly found that the testator's bequest to Melissa was unnatural. Stephen takes too narrow a view of the evidence. The judge specifically credited Christina's testimony that blood relations meant a great deal to the testator and that he had strong feelings about the fact that his nephews Nicholas and Patrick were the sole males to carry on the Hernon name. The judge also found credible the affidavit and testimony of the testator's long-time friend Arthur Roach, who...