Wimberly v. Jones

• Court: Appeals Court of Massachusetts
• Citation: Wimberly v. Jones, 526 N.E.2d 1070, 26 Mass.App.Ct. 944 (Mass. App. 1988)
• Decision Date: 03 October 1988
• Docket Number: No. 87-932,87-932
• Parties: Kathleen S. WIMBERLY et al. 1 v. Philip T. JONES.

Page 1070

526 N.E.2d 1070

26 Mass.App.Ct. 944

Kathleen S. WIMBERLY et al. ¹ v. Philip T. JONES.

No. 87-932.

Appeals Court of Massachusetts Norfolk.

Argued April 11, 1988.

Decided Aug. 8, 1988.

Further Appellate Review Denied Oct. 3, 1988.

[26 Mass.App.Ct. 948] Dennis M. O'Malley (Gerald J. Burzillo, Boston, with him), for Kathleen S. Wimberly and another.

Philip T. Jones (Patrick J. Fitzgerald, East Weymouth, with him), for the proponent.

Before BROWN, CUTTER and KASS, JJ.

RESCRIPT.

Ellen P. Dutra (the decedent) died on January 23, 1987. She executed on Sunday, December 21, 1986, a handwritten purported will (the 1986 instrument), at least witnessed by her attorney, Mr. Philip T. Jones, the petitioner for probate of the document. This was the day before the decedent was to undergo (and did undergo) an operation for colon cancer.

The 1986 instrument left all the decedent's property to Mr. Jones as trustee, in trust to permit her husband, Manuel, to live rent free (and with all expenses paid) in her house in Randolph during his life "so long as he is able to take care of himself in the property and desires to live" there. The house was to be sold after the death of Manuel "or when he is no longer able to live in the property." The trust was to terminate on Manuel's death. Then the trust property was to be distributed among various legatees. ²

Mr. Jones offered the 1986 instrument for probate on February 3, 1987. Kathleen S. Wimberly and her brother (the contestants) caused appearances by counsel to be filed for them in opposition to the allowance of the will on March 9, 1987. An affidavit by Mrs. Wimberly was filed on April 9, 1987.

Mrs. Wimberly's affidavit states in effect that the contestants were to have taken a significantly larger share under an earlier will executed in 1983, that the Randolph real estate had been in their family for two generations, that Mrs. Wimberly and the decedent had always had a close and loving relationship, and that Mrs. Wimberly and her family had spent a week in July, 1986, with the decedent and her husband in Randolph, only a few months before the decedent executed the 1986 instrument. The only statement in Mrs. Wimberly's affidavit directly bearing upon the decedent's testamentary capacity on December 21, 1986, was an unsupported conclusion, viz., "[t]hat my ... aunt was not of sound and disposing mind at the time she executed the ... [1986 instrument] due to the fact that she was to undergo a life-endangering operation the next day." ³

On April 15, 1987, Mr. Jones, as petitioner, moved to strike the contestants' objections to the allowance of the will and their appearances on the grounds (1) that the affidavit filed by Mrs. Wimberly was not that of Terrence O'Sullivan who filed no affidavit (and thus was not in compliance with revised Probate Court General Rule 16 [1987] ), ⁴ and (2) that Mrs. Wimberly's affidavit "fails to state specific facts and grounds upon which the objection is based as required by [Probate] Rule 16(a) and it, along with the appearance of both ... [contestants], should be [struck] pursuant to [Probate] Rule 16(b)." The motion was allowed on May 21, 1987, but was stayed for ten days so that the contestants could prosecute an appeal. Such an appeal was claimed.

Mr. Jones correctly does not dispute that the contestants have "standing" to file objections to the allowance of the 1986 instrument as the decedent's will. They each were next of kin of the decedent, and they had been mentioned more favorably in a prior will than in the 1986 instrument. See cases cited in Sheldone v. Marino, 398 Mass. 817, 818-820, and n. 1, 501 N.E.2d 504 (1986), to the effect that such an interest constitutes a property right (even if a fragile one). See especially, e.g., Crowell v. Davis, 233 Mass. 136, 138-140, 123 N.E. 611 (1919). He contends only that the contestants were required to make their case "in conformity with the rules of the Probate Court" promulgated under the broad rule making powers of the Probate Court and the Supreme Judicial Court. G.L. c. 215, §§ 30, 31.

Under the pre-1986 rules and decisions concerning the framing of jury issues in connection with will contests, if the contestants had offered to prove all the facts stated in Mrs. Wimberly's affidavit, jury issues would have been denied. See the cases collected in 1 Newhall, Settlement of Estates, §§ 39-43 (4th ed. & Supp.1987). See also Fuller v. Sylvia, 240 Mass. 49, 53, 133 N.E. 384 (1921), stating that the "mere request for the framing of [jury] issues is not enough, without the presentation of facts on which to found a reasonable hope for a result favorable to the party requesting the framing of issues." The present rule 16 merely requires contestants with standing to state in verified form the "specific facts and grounds 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.

The motion to strike the affidavit was allowed "[a]fter hearing," but the record appendix does not contain any transcript of what took place at that hearing or what, if any, offers of proof then were made. The Probate Court docket reveals no request for a "pretrial conference" under par. (c) of the present rule 16 or any request for leave to take a discovery deposition or depositions prior to the time allowed to the contestants for appearance, under S.J.C. Rule 1:02A (1981) (even if such a request could be granted, a matter not necessary for us to decide).

The only issue presented by the contestants' objections on this record appears to be that of the decedent's testamentary capacity on December 21, 1986. No specific fact mentioned in Mrs. Wimberly's affidavit shows any lack of such capacity. Indeed, the 1986 instrument reveals on its face an orderly scheme of disposition and careful identification of each legatee with such legatee's address. We have been referred to no case which holds that the circumstance that a decedent was "to undergo a life-endangering operation the next day," by itself, constitutes an indication that the decedent thereby was deprived of soundness of mind.

We perceive nothing contrary to our view in the Federal cases relied on by the contestants. Of these the most recent is Cleveland Bd. of...