In the Matter of the Estate of George A. Maglione, Jr.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

23-P-1298

IN THE MATTER OF THE ESTATE OF GEORGE A. MAGLIONE, JR.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The petitioner (objector) appeals from a decree and order

of formal probate entered by the Probate and Family Court in

August 2023. On appeal, the objector argues that the judge

erred by concluding that she did not have standing and by

allowing the personal representatives' motion to strike. We

affirm.

Background. In September 2015, George A. Maglione, Jr.

(decedent) duly executed his last will and testament (2015

will). The decedent had no biological children; he was survived

by two siblings, his siblings' children, and several first

cousins. One of his cousins is the mother of the objector;

accordingly, the objector is the decedent's first cousin once

removed. The 2015 will makes specific bequests of property to a

friend and a residue disposition to the trustee of the
decedent's trust. Notably, the 2015 will does not name or

bequeath property to the objector.

Following the decedent's death in January 2023, the

personal representatives of his estate filed a petition to

probate the 2015 will. Because the original will could not be

located, 1 they sought the admittance of a copy of the 2015 will.

The objector filed an objection to the admittance of a copy

of the 2015 will. She asserted that it did not "reflect the

intentions of the decedent as of the time of his passing" and

claimed that the decedent intended "to have [the objector]

inherit his property." The objector argued "that there will be,

if discovery is permitted, sufficient writings from the decedent

to establish that he either executed a new will in the form of a

holographic will or perhaps a codicil." For example, she

asserted that discovery "should show [documents, text messages,

and e-mail messages] that[] support[] each of [her] claims." In

support, she proffered two affidavits from the decedent's

friends who testified that the decedent wanted all of his

property to go to the objector. The representatives moved to

strike the objector's filings and supporting affidavits.

1 The personal representatives filed an affidavit of
diligent search conducted by the decedent's attorney. The
attorney also confirmed that the decedent received the original
2015 will and that he had no knowledge of revocation of the will
or the execution of a subsequent will.

2
A Probate and Family Court judge allowed the motion to

strike, thereby probating a copy of the 2015 will and denying

the objector's request for discovery. The judge explained:

"The [o]bjector would not receive if the [2015 will] were
set aside and has not proffered a will under which she
would take. She does not have a[n] interest in estate if
it proceeds intestate. Therefore, [the objector] has no
standing. This [c]ourt is not inclined to entertain
theories concerning an oral will without appropriate
formalities or the exigencies of military service."

This appeal followed.

Discussion. 1. Standing. We begin with the objector's

assertion that she has standing to file objections in the

decedent's probate matter.

To establish standing, the objector "must show that they

have a definite interest in the matter being litigated such that

their rights will be significantly affected by a resolution of

the contested point" (quotations and citation omitted). Caputo

v. Moulton, 102 Mass. App. Ct. 251, 258 (2023). "The burden is

upon [the objector] to prove by a fair preponderance of evidence

that [s]he had a right to contest the will." Finer v. Steuer,

255 Mass. 611, 617 (1926). Standing is a question of law and

thus, "our review is de novo." Caputo, supra at 253. In the

probate context, a challenge to the allowance of a will "may be

commenced by an interested person." Matter of the Estate of

Birkenfeld, 103 Mass. App. Ct. 628, 632 (2023), quoting G. L.

c. 190B, § 3-401. An "'[i]nterested person,' includes heirs,

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devisees, children, spouses, creditors, beneficiaries, and any

others having a property right in or claims against a trust

estate or the estate of a decedent, ward, or protected person."

G. L. c. 190B, § 1-201.

The objector further claims that she is an "interested

person" -- and thus, has standing to challenge the decedent's

will -- because she has "a property right in or claims against a

trust estate or the estate of a decedent." 2 Specifically, she

asserts that, in 2022, the decedent added her as a signatory to

his safety deposit box and bank account and introduced her to

his lawyers, accountants, and property managers "as the person

who would succeed him." She also claims that the decedent gave

her the key to his house and New Hampshire property, along with

the combination to access his filing cabinet and garage. 3

The 2015 will lacks any mention of the objector. Had the

2015 will bequeathed property to her, then she would be an

2 The objector does not make any claim that she is the
decedent's heir, child, spouse, creditor, or beneficiary.

3 For the first time on appeal, the objector asserts that
she had standing by virtue of the fact that the safety deposit
box contained the titles and deeds to the decedent's properties
and accounts. Before the Probate the Family Court, the objector
claimed that she had standing because the decedent added her to
his bank account and safety deposit box. Accordingly, we
address only her claim that standing was conferred upon her by
the decedent's adding her as a signatory to the bank account and
safety deposit box. See Carey v. New England Organ Bank, 446
Mass. 270, 285 (2006) ("An issue not raised or argued below may
not be argued for the first time on appeal" [citation omitted]).

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"interested person" by virtue of "having a property right in or

claims against" the decedent's estate. G. L. c. 190B, § 1-201.

However, the record is devoid of documentary evidence that the

decedent modified his will to include the objector. 4 As such,

her rights will not be affected by resolution of the issue posed

to the Probate and Family Court, namely whether a copy of the

2015 will can be admitted to probate. See Caputo, 102 Mass.

App. Ct. at 258.

We thus discern no error in the judge's conclusion that the

objector does not have standing to challenge the decedent's 2015

will.

2. Discovery. The objector's argument that had she been

afforded discovery, she might have been able to discover "a

writing that could have been deemed a new will, or an amendment

or codicil to his 2015 will" also fails. Even assuming that a

continuance for such discovery is proper, see Matter of the

Estate of Nevers, 100 Mass. App. Ct. 861, 868 n.5 (2022), we

would review for an abuse of discretion. See Caira v. Zurich

Am. Ins. Co., 91 Mass. App. Ct. 374, 384 (2017).

4 In the event the 2015 will were to be distributed via
intestacy, the objector would also not stand to take the
decedent's property, as the decedent was survived by heirs at
law, including his two surviving siblings. See G. L. c. 190B,
§ 2-103.

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Where, as here, the objector's argument is based entirely

on speculation, we discern no abuse. The objector fails to

allege any facts that the decedent properly executed a new will

or modified the 2015 will to reflect his alleged intentions

regarding her. Contrast Alphas Co. v. Kilduff, 72 Mass. App.

Ct. 104, 113 (2008) (continuance required where movant "has

demonstrated that such information is probably available"). She

simply insists that, if provided the opportunity for discovery,

"she may have been able to find a will that [the decedent] had

executed prior to the 2015 will."

3. Attorney's fees. The personal representatives seek an

award of attorney's fees, claiming that the objector's appeal is

frivolous. See Mass. R. A. P. 25, as appearing in 481 Mass.

1654 (2019). We agree that fees and costs are appropriate in

this case. See Avery v. Steele, 414 Mass. 450, 456 (1993). "An

appeal is frivolous . . . where there can be no reasonable

expectation of a reversal under well-settled law" (citation

omitted). Dacey v. Burgess, 491 Mass. 311, 319 (2023).

It would be unjust to charge the estate with attorney's

fees in a situation such as this where the standing requirements

were so clearly not satisfied and the discovery issues

completely speculative. Consistent with the requirements of

Fabre v. Walton, 441 Mass. 9, 10-11 (2004), the estate may file

a request for attorney's fees and costs, along with supporting

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documentation, within fourteen days of the issuance of this

decision. The objector shall have fourteen days thereafter

within which to respond.

Order allowing motion to
strike dated July 26, 2023,
and decree and order of
formal probate entered on
August 4, 2023, affirmed.

By the Court (Blake, C.J.,
Ditkoff & D'Angelo, JJ. 5),

Clerk

Entered: December 4, 2024.

5 The panelists are listed in order of seniority.

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