Mass Lawyers Weekly (9/28/2020) "This Week's Decisions"
Where a Probate & Family Court judge dismissed a petition to formally probate a testator's propsed will and to appoint the testator's son as personal representative of the estate, the juge denied the testator's son a fair and impartial hearing on his petition by improperly restricting the evidence he could present to prove proper execution of the testator's will.
Reversed and remanded.
"It is undisputed that each of the three attesting witnesses was decreased at the time of trial, making it impossible for John (J. King, Jr.), as the proponent of the will, to prove the will's validity through the testimony of at least one of those witnesses. ...However, to meet his burden in proving proper execution, the statute provides John as additional option - proving the will's validity 'by other evidence'. G.L.c. 190B S3-406 (a). ...
"At trial, John attempted to present 'other evidence' to prove proper execution of the will. First, John testified as to his knowledge of the testator's will, and to confirm the identity of the attesting witnesses. However, the judge erroneously prohibited John from testifying as to his familiarity with the testator's signautre and making a comparison of the signature appearing on the will. John's testimony was limited to discussions that he had with the testator about a new will, and that John had found the will after the testator's death. In addition, John was permitted to testify as to his retention of a handwriting expert, but he was prohibited from stating the expert's conclusion and from calling that expert as a witness at trial. The judge referred to John's 'last minute' request to have the expert testify as 'trial by ambush.'
"John also attempted to admit numerous contested exhibits, which he proffered for the purpose of authenticating the testator's and the deceased attesting witnesses' signatures, and proving proper execution, but the judge denied the admission of these exhibits. The judge also declined to allow any evidence regarding the comparison of signatures appearing on the will to those contained withtin the contested exhibits - extrinsic evidence that potentially could have verified the signatures and validated the will. This too was errer. ...
"By denying John the opportunity to present extrinic evidence for consideration in determining proper execution of the will, the judge deprived John of a 'full and fair hearing upon the whole evidence in violation of due process. ... We do not here decide whether the extrinic evidence proferred by John was sufficient to prove the validity of the will, but rather conclude only that the judge erred in restricting John's presentation of that evidence in violation of G.L.c 190B, S3-406. Therefore, John must be provided the opportunity to present admissible 'other evidence' to prove the will as instructed by the statute, and may do so without the aid of expert testimony. In addition the just may revisit the issue of permitting expert testimony on the subject. ...
"For the foregoing reasons, we reverse the March 14, 2019 decree and remand the matter for proceedings consistent with this opinion. On remand, the matter should be heard by another judge of the Probate and Family Court."
