Hobbs v. Carroll

• Court: Appeals Court of Massachusetts
• Citation: Hobbs v. Carroll, 614 N.E.2d 695, 34 Mass.App.Ct. 951 (Mass. App. 1993)
• Decision Date: 18 June 1993
• Docket Number: No. 92-P-609,92-P-609
• Parties: Joy Adzigian HOBBS et al. v. Lydia W. CARROLL et al.

Page 695

614 N.E.2d 695

34 Mass.App.Ct. 951

Joy Adzigian HOBBS et al. v. Lydia W. CARROLL et al.

No. 92-P-609.

Appeals Court of Massachusetts Essex.

Argued May 12, 1993.

Decided June 18, 1993.

Joan M. Griffin, Boston, for plaintiffs.

Sumner H. Smith, Lynn, for defendants.

Before SMITH, KAPLAN and IRELAND, JJ.

RESCRIPT.

Agnes Bogosian died on January 26, 1990, at the age of eighty-five. She left a will dated October 20, 1989, which superseded a will dated September 11, 1973, and radically changed the bequests. Proponents of the later will (Carroll et al.) petitioned for probate on May 3, 1990, returnable on May 21, 1990. Contestants (Hobbs et al.), who appear to have "standing" to contest that will, see Wimberly v. Jones, 26 Mass.App.Ct. 944, 946, 526 N.E.2d 1070 (1988), entered their appearance by their attorney on May 21, 1990, and on June 12, 1990, the attorney filed an affidavit of objections sworn to by himself. Proponents and contestants thereupon engaged in considerable discovery.

On August 8, 1991, fourteen months after the filing of the affidavit of objections, the proponents moved to strike the objections (as well as the contestants' appearance). ¹ The proponents asserted that the affidavit of objections did not comply with rule 16(a) of the Probate Court Rules, as amended (1987), in that it set out the objections--testatrix's incompetence and undue influence upon her--in broad terms, rather than "stating the specific facts and grounds upon which the objection is based," as required by the rule; moreover, said the proponents, the affidavit should not have been sworn by the attorney who presumably did not have personal knowledge of the facts. See Howland v. Cape Code Bank & Trust Co., 26 Mass.App.Ct. 948, 949, 526 N.E.2d 1073 (1988).

Opposing the motion to strike, ² the contestants could not fairly argue that their objections had been alleged with proper specificity. By way of palliation, if not excuse, the attorney, by fresh affidavit, stated and exemplified that, before filing the objections, he had conducted interviews and gathered information that might have furnished a proper basis for "specific facts and grounds." More important, the contestants placed on file the copious results of the discovery that had been conducted by the parties, canvassing the case as a whole.

The judge, by order of September 6, 1991, allowed the proponents' motion to strike the objections and appearance. The contestants moved for reconsideration and for leave to file an amended affidavit of objections to contain specific allegations and to be sworn by one of the contestants with personal knowledge. The text of a proposed amended affidavit of objections was annexed to the motion for reconsideration. The judge denied the motion by order of October 9, 1991.

In our view, it was error, an abuse of discretion, for the judge to deny leave to amend. The objections, as originally filed, did indeed offend against the rule which was intended, through its requirement of specificity, to help screen out frivolous attacks on wills. See Wimberly v. Jones, 26 Mass.App.Ct. at 947-948, 526 N.E.2d 1070. Here, however, the proponents waited for a year or more to point to the problems with the objections. In the meanwhile the proponents as well as the contestants...