Beyond The Will, Client Compass

To best enjoy this post, please be sure to first read A Family History of the Smiths & Alexanders.

Last week, we introduced you to the Smith and Alexander families, and Patricia Malley explained to us that Johnny Smith likely inherited all of Jocelyn Smith’s assets under Massachusetts intestacy law upon her untimely death many years ago. This week, I’d like to fast-forward to Johnny’s subsequent death and the host of potential litigation by and among Moira and the children.

The family history tells us that Moira filed a Petition with the Probate Court to approve Johnny’s will and appoint Moira as Personal Representative and that Randall and Twyla filed objections to her Petition. This presents a classic will contest procedurally, even though the substantive facts here are anything but ordinary. Let’s focus first on the procedure. How does a will contest proceed in the Probate Court? That depends on whether the initial filing (here, Moira’s filing) was made through a “formal” or “informal” process.

With a more classic, formal filing, a Petition is filed with the Court, and the Court then issues a Citation (legal notice) which must be served on all interested parties and published in a local newspaper. The Citation will include a return date, which is a deadline by which any objection to the Petition must be filed. All that is required prior to the return date is a simple one-page Notice of Appearance and Objection, identifying the objecting party. Within 30 days thereafter, that party must file a more detailed Affidavit of Objections, setting forth the grounds for his or her objection and the facts supporting the objection. With the facts teed up and properly presented, the case will then proceed with discovery and motion practice.

When a probate proceeding is initiated via an informal filing, the procedure is quite different. In that case, there is no Citation and no return date. Upon receiving notice of an informal filing, an objecting party may challenge that filing by filing his/her own competing Petition using the formal probate process. If that were the case here, Randall and Twyla most likely would be asking the Court to declare that Johnny died intestate, as they no longer believe the 2013 will should control.  A Citation would issue on that Petition, and Moira would then file a Notice of Appearance and Objection, as well as a supporting Affidavit affirming that Johnny left a valid will naming her as beneficiary and fiduciary. Any authority that may have been conferred on Moira pursuant to her informal filing would be suspended while the formal process plays out.

The most typical grounds for challenging a will – lack of capacity and undue influence are not present in this family history. After all, it was not until several years after the will was executed that Johnny’s health began to decline. The litigation here is more likely to focus on whether Moira is suitable to serve as Personal Representative, particularly given Randall and Twyla’s suspicions that Moira was taking advantage of Johnny financially as his incapacity deepened. I speculate that, based on the facts as we know them, 2013 will ultimately be approved as valid, with a neutral Personal Representative appointed to administer the Estate.

But that’s not all. Even if the will were allowed, further litigation would likely ensue regarding its interpretation. After all, Moira was referred to throughout the will as Johnny’s “spouse” but in fact, they never married. This inherent conflict and ambiguity could be pursued by Randall and Twyla’s filing of an Equity Action in the Probate Court seeking a declaration that Moira did not qualify as a “spouse” and thus should take nothing under the will. It also could be pursued by the Personal Representative filing a Petition for Instructions identifying the dispute among beneficiaries (or potential beneficiaries) and asking the Court to decide the issue. As another interesting twist, the Trustee of the Family Trust established by Johnny’s parents could seek judicial relief regarding the exercise (or non-exercise) of Johnny’s power of appointment, given that Moira was not actually his spouse and therefore could not receive that benefit.

Of course, Stevie adds another complicating factor here. Can she prove that Johnny is her father, posthumously? Is she entitled to notice of these various Probate Court proceedings? Can she be considered an “omitted heir” with statutory rights? There is still so much to explore here, in the Saga of the Smiths and the Alexanders. Stay tuned!