Should it Stay or Should it Go?: Post-MUPC Probate Court Objections in the Wake of Leighton and Cusack
by Timothy F. Robertson, Esq. and Joseph N. Schneiderman, Esq.
Since Massachusetts adopted the Model Uniform Probate Code, G.L. c. 190B (MUPC) in 2012, few cases have addressed the topic of objections. This article will offer practical pointers for how to make objections stick in light of two recent (published) appellate decisions.
- Objections: History, Contents and Timeliness
Objections are an essential component of probate litigation. Objections provide notice to interested parties of a controversy within a probate or will action in the Probate and Family Courts. Upon the filing of an objection, the dispute becomes a lawsuit, where discovery may begin.
Objections may contest the merits of an action in probate court or air a more disconcerting lack of communication or trust involving a fiduciary. Affidavits in support of objections can range from the long-winded “let me tell my side of the story” affidavit to the more precise, but speculative affidavit. But neither of those extremes can or should suffice.
Before Massachusetts adopted the MUPC, Probate Court Rule 16 governed objections to wills. See e.g. O’Rourke v. Hunter, 446 Mass. 814, 816-817 (2006) (Marshall, C.J.) Rule 16 itself followed the abolition of jury issues in will contests and functioned to screen out frivolous attacks on wills. Id. at 817.
Rule 16 required an objection to articulate specific facts. An administrator could contest lack of specificity in an objection either by a motion to strike or motion for summary judgment-one did not need to exhaust objections before seeking summary judgment. O’Rourke, 446 Mass. at 818-821. But specificity remained the touchstone of an adequate objection. See e.g. Sher v. Desmond, 70 Mass. App. Ct. 270, 279, n.11 (2007).
Today, G.L. c.190B, §1-401(e)-(f) governs objections. Objections still require specific facts and must include supporting affidavits. The affidavit should stem from personal knowledge and should contain as much detail as the drafter knows. Compare Mass. R. Civ. Pro. 56(e) (governing affidavits in summary judgment.) Allegations of fraud should be stated with particularity. Compare Mass. R. Civ. Pro. 9(b). A best practice is for the drafter (i.e., counsel) to reserve the right to supplement the affidavit as discovery proceeds.
Under the MUPC, it is the timeliness of an objection, however, that is of more critical importance. If an objector lacks sufficient information to develop an appropriate affidavit within the applicable time period (the return date set by the court or otherwise by statute), practitioners should: (1) act quickly to propound discovery on the petitioner (and any other person or entity with relevant information) under Supp. Prob. Ct. R. 27A and (2) concomitantly move to extend the deadline for filing the affidavit of objections.
- Leighton v. Hallstrom-Case Study of a Successful Objection
Despite the strict time requirements for filing an objection and the need for a detailed affidavit, a recent Appeals Court decision suggests that substance ultimately prevails over form when considering the adequacy of an objection.
In Leighton v. Hallstrom, 94 Mass. App. Ct. 439 (2018), a magistrate endorsed Leighton’s petition for a formal adjudication of intestacy, determination of heirs, and Leighton’s appointment as personal representative of the decedent’s estate. Prior to the entry of the decree, Hallstrom came forward and announced himself as an interested person and first cousin of the decedent. On a pre-printed Probate and Family Court form (MPC 505a), Hallstrom also filed a notice of appearance but did not check the box that his appearance was an objection. In the interim, the magistrate entered a decree on another pre-printed form but left blank the fields for specific individual heirs, instead referring back to the petition.
Hallstrom unsuccessfully tried to persuade Leighton of his lineage to the deceased, including with a genealogical chart. Leighton later petitioned for a complete settlement and Hallstrom objected. The Probate Court judge struck Hallstrom’s objection as tardy and because the magistrate’s initial decree resolved who the heirs were. Hallstrom appealed.
The Appeals Court reversed. The Appeals Court noted that although the MUPC imposed strict time constraints for objections, the true issue was not timeliness but the legal significance of the decree-which did not explicitly list any heirs. Instead, the decree referred back to the petition, which specifically listed Hallstrom as a purported heir. Moreover, the Personal Representative was aware of Hallstrom’s claims. Thus, since the decree did not resolve the issue of who the heirs were, there was no legal basis to preclude Hallstrom’s objection. 94 Mass. App. Ct. at 446, citing and quoting Day v. Kerkorian, 61 Mass. App. Ct. 804, 809 (2004) (“Issue preclusion is not available where there is ‘ambiguity concerning the issues, the basis of decision, and what was deliberately left open by the judge.’”).
Leighton illustrates that practitioners should not avoid nor courts discourage limited objections. Indeed, the Probate and Family Court’s pre-printed forms like MPC 505a can lend themselves to ambiguity. So long as the substance of the objection is there, the objection suffices. Indeed, if there is a need to amend the objection, practitioners can and should amend fairly and freely, as they could under former Rule 16. See e.g. Hobbs v. Carroll, 34 Mass. App. Ct. 951 (1993), citing Mass. R. Civ. Pro. 15.
- Cusack v. Clasby: Are Objections or Contempt Actions Your Recourse for Bad Administration?
The manner of probating the estate may raise concerns. Is filing an objection to an account the best mechanism to address concerns? Depending on the information known to the interested person and the status of a matter, a petition to remove the personal representative might be the appropriate course. However, if a first and final account has been filed, and the deadline for objections has been set, a potential objector has a limited time period to act.
Cusack v. Clasby, 94 Mass. App. Ct. 756 (2019), illustrates this point. Catherine Cusack died in June 2014, survived by eight children, all equal heirs. Clasby, one of her daughters, and the administrator of her estate, petitioned to probate the estate in October and filed a petition for an order of complete settlement in December 2015. Three of Clasby’s siblings objected, asserting that the final accounting reflected disbursements that had not in fact occurred. A judge in the Probate Court struck the objections, approved the final accounting, and settled the estate. The siblings appealed, asserting that settling the estate was premature.
The Appeals Court affirmed the settlement and rejected this contention. The Appeals Court noted that before Massachusetts adopted the MUPC, settlement was indeed incomplete until all payments were made by the estate. 94 Mass. App. Ct. at 758, citing former G.L. c.206, §22. However, the MUPC expressly repealed and displaced this principle. Id. at 759, citing G.L. c.190B, §3-1001. Similarly, the MUPC also permitted Clasby, as an administrator, to approve accounting and distribution of the estate. Id.. at 758.
Thus, the Probate Court judge had authority to jointly approve the accounting and settle the estate. Indeed, the joint order furthered the purpose of the MUPC to spur a “speedy and efficient system for liquidating [an] estate of [a] decedent and making [distributions.]” 94 Mass. App. Ct. at 759, quoting G.L. c.190B, §1-102(b)(3). Finally, the siblings were not without recourse-they could petition for contempt for violations of a court order. Id. at 759.
Cusack raises an important practical question about how to redress problems during distribution. On the one hand, procedurally, a contempt action does have benefits. A decree settling an estate certainly constitutes a court order for purposes of contempt. The Probate and Family Court also deals with contempt every day. Contempt actions also proceed under the same docket without a separate filing fee, and a successful litigant may recover their attorney’s fees.
Substantively however, a contempt action after distribution may not provide an ideal solution. Contempt has to be proven by clear and convincing evidence and not every violation of a court order constitutes a contempt. Indeed, ambiguous court orders do not lend themselves to contempts. See e.g. Hoort v. Hoort, 85 Mass. App. Ct. 363, 365 (2014). A contempt action may deleteriously prolong and reopen a seemingly settled estate, and thwart the spirit of speedy settlement under the MUPC-or the purpose of former Rule 16 to screen out frivolous contests.
Leighton and Cusack illustrate how will objection practice has developed since Massachusetts adopted the MUPC. While an affidavit in support of an objection should contain specific facts, merely putting the proponent on notice of a problem may suffice if the proponent is relying on a pre-printed probate court form to preclude an issue.
On the other hand, objections no longer function to redress poor or incomplete administration because administration closes comparatively quickly. Whether or not contempt actions against administrators will actually serve the purposes of objections for bad administration will be interesting to see in light of the severe backlogs in certain probate courts.
Timothy F. Robertson is the Principal Attorney of T FRANK LAW, PLLC, a Trusts and Estates law practice in Charlestown, MA. https://www.tfranklaw.com. Tim is grateful to Joe for the opportunity to collaborate and for staying abreast of recent SJC and Appeals Court Decisions.
Joseph N. Schneiderman has an appellate-exclusive practice in Massachusetts and Connecticut and has argued four times in the SJC since 2015. Joe can be contacted at firstname.lastname@example.org. Joe gratefully thanks Tim for the opportunity to write and collaborate about important appellate developments in probate law. Joe further dedicates the article to the memory of his grandfather, Natalé “Nat” Memoli.