In Howes v. Riordan, Case No. 11-P-596, 2012 Mass. App. Unpub. LEXIS 220 (Feb. 28, 2012), a decision issued pursuant to Rule 1:28, the Appeals Court affirmed the allowance of a motion to strike an affidavit of objections.
The decedent executed a last will on February 26, 2008, leaving a tea cart to her daughter Judith and the residue of her estate to her sons John and James. The decedent died on June 12, 2010, following which James filed the will for probate and Judith filed an affidavit of objections. In response to the affidavit of objections, John and James filed a motion to strike or alternatively for summary judgment. In opposition, Judith's counsel filed an affidavit asserting that he could not adequately defend the summary judgment motion without additional discovery.
The probate court granted the motion to strike, and the Appeals Court affirmed, rejecting Judith's argument that it was procedurally improper for John and James to combine their motion to strike with a motion for summary judgment. The Appeals Court also rejected Judith's substantive arguments.
Regarding her claim of lack of testamentary capacity, the Court held that Judith failed to allege sufficient facts supporting her claim. Although the decedent was physically in decline, "Judith simply fails to set forth facts that connect her [the decedent's] physical decline to the elements of testamentary capacity. ... The affidavit is silent as to the [decedent's] communication skills or ability to converse coherently, her level of awareness of her estate, her level of awareness of her children and their relationship with her, her ability to respond appropriately to information, or other indicia of testamentary capacity."
Judith's undue influence claim was rejected for the same reason, i.e., she failed to allege sufficient facts raising a triable claim that the decedent's declining physical health caused her to be susceptible to undue influence.
On November 9, Peter M. Shapland, chair of Day Pitney’s Trust Services and Fiduciary Compliance practice group and chair of the firm’s Trust Oversight Committee, served as a panelist at the Massachusetts Bar Association’s Sixth Annual Probate Law Conference held in Norwood, MA.
On October 10, Tiana Gianopulos will be a panelist at the Business and Professional Women's Success Series breakfast, presented by the Town and County Club in Hartford, CT.
On June 14, Angela Titus McEwan will be speaking on Estate Planning at a Variable Annuity Life Insurance Company (VALIC) Financial Literacy Seminar at CarePoint MSO in Jersey City, NJ.
Jay Kauffman and Paul Marino authored an article, "How Florida Affirmed Fiduciaries' Lawyer-Client Privilege," published by Law360.
Day Pitney partner Angela Titus McEwan authored an article, “Recent Cases Address Undue Influence in Will Contests,” published by the New Jersey Law Journal.
Gary Betensky and Michael Napoleone were featured in a profile, "Day Pitney LLP: Firm Expands to Better Serve South Florida Clients," published in the March issue of The Boca Raton Observer magazine.
Day Pitney Press Release
Day Pitney associate Darian Butcher has been elected as Vice President of the Board of Directors of GLBTQ Legal Advocates & Defenders (GLAD).
Day Pitney Press Release
Day Pitney associate Darian Butcher has been elected to serve on the Board of Directors of the Massachusetts Chapter of the Federal Bar Association (FBA).