O'Rourke v. Hunter

• Decision Date: 31 May 2006
• Citation: O'Rourke v. Hunter, 848 N.E.2d 382, 446 Mass. 814 (Mass. 2006)
• Parties: Edward O'ROURKE, Jr. v. Maureen HUNTER.
• Court: Supreme Judicial Court of Massachusetts

Page 382

848 N.E.2d 382

Edward O'ROURKE, Jr. v. Maureen HUNTER.

Supreme Judicial Court of Massachusetts, Worcester.

Argued February 6, 2006.

Decided May 31, 2006.

Barry A. Bachrach, Worcester, for the plaintiff.

Michael J. Traft, Boston, for the defendant.

Present: MARSHALL, C.J., GREANEY, IRELAND, SPINA, SOSMAN, & CORDY, JJ.

MARSHALL, C.J.

This appeal from a will contest causes us to clarify the relationship between the provisions of Rules 16 and 27B of the Rules of the Probate Court (2006), specifically whether a will proponent must first exhaust the procedures set forth in rule 16 before moving for summary judgment pursuant to rule 27B, as the Appeals Court has mandated. See Brogan v. Brogan, 59 Mass.App.Ct. 398, 404, 796 N.E.2d 850 (2003). We conclude that no such exhaustion is required. We therefore affirm the order of the Probate and Family Court judge in this case entering summary judgment for the proponent of the will at issue and ordering that the affidavits of certain objections be struck.

1. Background. Jennie M. O'Rourke (testatrix) died on May 7, 2002.¹ Her will, dated March 22, 2002, was presented for probate in June, 2002, by her son, Edward W. O'Rourke, Jr. (proponent), who was also named the executor of the estate. Her two daughters, Gale A. Racine and Maureen Hunter (contestants), filed objections to the probate of the will, asserting that their mother lacked the requisite testamentary capacity to execute her will, and that she was unduly influenced by the proponent in doing so. Subsequently, the contestants filed affidavits in support of their objections as required by rule 16(a).

In December, 2002, the proponent moved for summary judgment pursuant to rule 27B, and for such other relief as the judge deemed proper. In support of his motion, the proponent submitted three affidavits: his own, the affidavit of the attorney who prepared the testatrix's will (to which was attached a rejected draft version of the will), and the affidavit of the proponent's counsel (to which was attached a copy of the executed will). The proponent had not previously moved to strike the appearances and the affidavits of objections of the contestants. See rule 16(b). The contestants opposed the motion and submitted certain medical records of the testatrix in support of their opposition.

Taking into consideration all of the affidavits, as well as medical records of the testatrix, the Probate and Family Court judge concluded that there was no evidence to overcome the presumption that the testatrix was competent at the time the will was executed, and that the record "unequivocally" established the testatrix's requisite testamentary capacity to execute her will. He also concluded that the proponent had met his burden of affirmatively demonstrating that there was no dispute as to any material facts concerning undue influence. The judge allowed the proponent's motion for summary judgment pursuant to rule 27B. He ordered, sua sponte, the objections of both contestants struck pursuant to rule 16(b).

The contestants appealed.² The Appeals Court, in an unpublished memorandum and order pursuant to its rule 1:28, reversed the judge's order. O'Rourke v. Hunter, 64 Mass.App.Ct. 1103, 832 N.E.2d 20, 2005 WL 1844430 (2005). Citing Brogan v. Brogan, supra at 404, 796 N.E.2d 850, the Appeals Court concluded that it was "essential error" for the judge to rule on the proponent's motion for summary judgment before the proponent had exhausted the procedures laid out in rule 16. We granted the proponent's application for further appellate review.

2. Rules 16 and 27B. We first address the appropriateness of the judge's decision to rule on the proponent's motion for summary judgment. To do so, it is helpful to understand the procedural rules governing will contests, and how those rules have changed over time. See generally Kehoe, Will Contests Under Probate Rule 16, 83 Mass. L.Rev. 6 (1998) (Kehoe). A person contesting the probate of a will must file an appearance pursuant to Rule 2 of the Rules of the Probate Court (2006).³ Rule 16, concerning affidavits of objections and motions to strike, then provides in relevant part:

"(a) If any person who has filed an appearance pursuant to General Probate Rule 2 on a petition for the probate of a will fails to file a written affidavit of objections to the petition, stating the specific facts and grounds upon which the objection is based, within thirty (30) days after the return day (or such other time as the court, on motion with notice to the petitioner, may allow), the court may, upon its own motion or on motion of the petitioner, the guardian ad litem (if any), or any person whose appearance is on file (with notice to any person whose appearance is on file and, if applicable, the guardian and petitioner), order the appearance struck.

"(b) If an affidavit of objections fails to comply with the requirements of the foregoing section (a), such affidavit of objections and the appearance of the party filing such affidavit of objections may be struck on motion with notice in the manner provided in the foregoing section (a) at any time after the filing of such affidavit of objections."

Rule 16 was adopted in the wake of St.1986, c. 211, which abolished the practice of motions for jury issues in Massachusetts will contests. See Kehoe, supra at 6-7. The purpose of rule 16(a) and (b), as revised in 1987, was "to help screen out frivolous attacks on wills." Hobbs v. Carroll, 34 Mass.App.Ct. 951, 952, 614 N.E.2d 695 (1993). Kehoe, supra at 7. Sections (c) and (d) of the revised rule 16, in turn,⁴ provide for the expeditious resolution of nonfrivolous will contests in order "to minimize the delay and disruption in the orderly settlement of a decedent's estate which a will contest necessarily entails." Id.

Under section (a) of rule 16, each party contesting a will must file an affidavit of objections "stating the specific facts and grounds upon which the objection is based." Under rule 16(b), the proponent of the will may move to strike each contestant's affidavit of objections on the ground that it does not comply with rule 16(a), that is, that it fails to state "specific facts and grounds." If a judge agrees and strikes every affidavit of objections in its entirety, and the petition to probate is otherwise in order, the will may proceed to probate. See S.M. Dunphy, Probate Law and Practice § 23.7, at 447 (2d ed.1997).

A motion to strike an affidavit of objections is similar in some ways to a motion to dismiss a complaint in a civil action under Mass. R. Civ. P. 12(b)(6), 365 Mass. 754 (1974). See Brogan v. Brogan, 59 Mass.App.Ct. 398, 399, 796 N.E.2d 850 (2003), citing Wimberly v. Jones, 26 Mass.App.Ct. 944, 946, 526 N.E.2d 1070 (1988). The judge considers only the affidavit of objections, accepting all of its facts as true, and may not consider any affidavits or other evidence submitted by the proponent. See Brogan v. Brogan, supra at 400-401, 796 N.E.2d 850, citing Baxter v. Grasso, 50 Mass.App.Ct. 692, 694 & n. 4, 740 N.E.2d 1048 (2001). See also Kehoe, supra at 14 ("the filing of counteraffidavits by the proponent in support of [a motion to strike affidavit of objections] is not appropriate"). In Wimberly v. Jones, supra at 946, 526 N.E.2d 1070, the Appeals Court, considering the standard to be used when evaluating a rule 16 affidavit of objections, emphasized that rule 16 "requires contestants with standing to state in verified form the `specific facts and ground upon which ... [the] objection is based,' a requirement which is no more burdensome than court rules in other areas of the law requiring a plaintiff to assert with specificity in his complaint (or other pleading) allegations which, if proved, would entitle him to prevail" (emphasis in original).⁵ See Baxter v. Grasso, supra at 694, 740 N.E.2d 1048 (endorsing Wimberly standard, but noting "we think that it is sufficient to say that the source of the specificity required by rule 16 is the rule itself").⁶

Prior to the adoption of summary judgment procedures in the Probate and Family Court,⁷ a motion to strike was the only way to dispose of a will contest summarily. See Cushman v. Nichols, 20 Mass.App.Ct. 980, 981, 482 N.E.2d 862 (1985). Accordingly, if the motion to strike was unsuccessful to any extent (i.e., if any affidavit of objections was not struck or struck only in part), or if the proponent did not file a motion to strike, the will contest would proceed expeditiously to a pretrial conference and then to trial. See rule 16 (c), (d); S.M. Dunphy, Probate Law and Practice § 23.7.7 (Supp.2005).

Since January 1, 2000, however, rule 27B has provided: "Summary judgment may be granted in accordance with the provisions of [Mass. R. Civ. P. 56, 365 Mass. 824 (1974)]."⁸ In addition, Rule 27A of the Rules of the Probate Court (2006) provides that "[d]epositions and discovery shall be governed by [Mass. R. Civ. P. 26-37]."⁹ Nothing in the adoption of rules 27A and 27B amended rule 16. Consequently, both motions to strike and motions for summary judgment are now available in will contests.

While rule 16(b) provides that an affidavit "may be struck on motion," it does not impose a requirement that such a motion be filed in each and every case. Further, Mass. R. Civ. P. 56, incorporated by reference in rule 27B, provides that a motion for summary judgment may be filed "at any time," without requiring any other motion as a prerequisite.¹⁰ Nonetheless, the Appeals Court has required that the proponent of a will bring a motion to strike before moving for summary judgment. In Brogan v. Brogan, supra at 404, 796 N.E.2d 850, the Appeals Court, citing no authority, stated:

"In will contests, the procedure laid out in rule 16 must be exhausted before there is recourse to a motion for summary judgment. If the court allows a motion under rule 16(b) to strike the affidavit of objections . . . that is obviously the end of the matter. If the...