In the Matter of the Estate of King

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19-P-1210 Appeals Court

IN THE MATTER OF THE ESTATE OF JOHN J. KING.

No. 19-P-1210.

Middlesex. May 11, 2020. - September 2, 2020.

Present: Meade, Rubin, & Henry, JJ.

Will, Validity, Execution. Evidence, Handwriting exemplar,
Expert opinion. Witness, Expert. Probate Court, Judicial
discretion.

Petition filed in the Middlesex Division of the Probate and
Family Court Department on November 17, 2017.

The case was heard by Melanie J. Gargas, J.

David T. Fulmer for John J. King, Jr.
Dana Alan Curhan for Paul M. King & another.

MEADE, J. The petitioner, John J. King, Jr. (John), son of

the deceased testator, John J. King (testator), appeals from the

decree entered by a judge of the Probate and Family Court

dismissing his petition to formally probate the proposed will of
2

the testator and to appoint John1 as personal representative of

the testator's estate. On appeal, he claims that the judge

denied him 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.2 We agree and reverse

the decree.

Background. The testator died on August 2, 2017. On

November 17, 2017, the testator's daughter, Robin E. Pelletier,

filed a petition for formal adjudication of intestacy and for

her appointment as personal representative of the testator's

estate (Robin's petition). On December 11, 2017, claiming there

existed a will executed by the testator on September 3, 2013

(will), John filed a petition for formal probate of the will and

for his appointment as personal representative of the testator's

estate (John's petition).

1 Because some of the parties share the same surname, we
will refer to the parties by their first names for ease of
reference.

2 John also claims on appeal that the judge abused her
discretion by denying his motion to recuse. However, he did not
file a timely notice of appeal from the denial of his motion for
recusal, thus the issue is not properly before us. See DeLucia
v. Kfoury, 93 Mass. App. Ct. 166, 170 (2018) ("A timely notice
of appeal is a jurisdictional prerequisite to our authority to
consider any matter on appeal"). See also Mass. R. A. P. 4 (a)
(1), as appearing in 481 Mass. 1606 (2019). In addition, John
appeals from the June 12, 2019, denial of his motion to stay.
However, he does not address that issue in his brief, so we
consider the issue waived. See Barkan v. Zoning Bd. of Appeals
of Truro, 95 Mass. App. Ct. 378, 389 (2019).
3

The proposed will bequeathed John the entire estate, and

nominated him as the "executor" of the testator's estate; in the

event John predeceased the testator, the entire estate was

bequeathed to the testator's brother, Francis R. King, Jr. A

provision of the will intentionally omitted Robin and Paul M.

King, the testator's other son, from receiving any benefit from

the estate. The testator's signature was witnessed by three

individuals, all of whom, according to the evidence, were

acquaintances of the testator (and deceased at the time of

John's petition), and lived in the same neighborhood where the

testator had owned a home (on Sidney Street in Lawrence) since

1968, and where the testator had previously lived for several

years. The signatures were not notarized, and there was no

self-proving affidavit included with the will. At the time of

the will execution, John lived at the Sidney Street property,

which was still owned by the testator.

In December 2017, John filed an appearance and objection to

Robin's petition; in his January 2018 affidavit of objections,

John specifically objected to Robin's appointment as personal

representative of the testator's estate.3 In January 2018,

3 In his affidavit of objections, John detailed the
animosity between his family members occurring after his
parents' divorce in 2008. John claimed, and it appears
undisputed, that neither Robin nor Paul had a good relationship
with the testator after the divorce; John claimed he remained
neutral for a period of time after the divorce, but eventually
4

Robin, Paul, and Elisa King (the testator's former wife, and the

mother of Robin, Paul, and John) separately filed their

appearances and objections to John's petition. In their

respective affidavits of objections, they each objected to

John's appointment as personal representative of the testator's

estate, and asserted that the proposed will was invalid based on

improper execution, forgery, and undue influence; in March 2018,

John moved to strike the objections to his petition made by

Robin, Paul, and Elisa.4

In June 2018, a special personal representative was

appointed for the estate. At a September 27, 2018, pretrial

conference, the judge allowed the motion of Robin and Paul to

bifurcate the issue of the validity of the will.5 At the

pretrial conference held on January 23, 2019, John made an offer

of proof of extrinsic evidence (which included numerous samples

of the testator's and attesting witnesses' signatures) for the

became estranged from his mother, Robin, and Paul. He also
referenced in his affidavit the restraining orders obtained by
Robin against the testator in New Hampshire (where she lived at
the time) from 2009 through 2013; she also obtained in
Massachusetts a G. L. c. 209A abuse prevention order against the
testator in September 2015. It is unclear from the record
whether the Massachusetts restraining order was in effect at the
time of the testator's death in August 2017.

4 As John argues, it does not appear that his motion to
strike was ever ruled on by the judge.

5 Elisa did not join the motion to bifurcate, and did not
participate in the bifurcated trial.
5

purpose of proving proper execution of the will. The judge,

after objection by Robin and Paul, informed the parties that she

was not a handwriting expert and, therefore, she would not

decide the issue of the authenticity of signatures; she

determined that she would rule at trial (based on G. L. c. 190B,

§ 3-406 [a]) whether to admit John's proposed extrinsic evidence

if and when he moved to offer it.

As a result of this ruling, on January 29, 2019, John

filed, and Robin and Paul opposed, a motion to amend his

pretrial memorandum to include on his witness list a handwriting

expert for the purpose of assisting with the authentication of

the testator's and attesting witnesses' signatures; attached to

his motion he included, among other things, the expert's written

opinion as to the authenticity of the testator's signature, and

various exemplars of the testator's handwriting and signature.

After a hearing on John's motion held on February 4, 2019, the

judge denied John's request to add a handwriting expert to his

witness list, and ruled that only the parties and the testator's

brother Francis were allowed to testify at trial.6

At the February 14, 2019 bifurcated trial, John was the

only witness to testify, and the will was the sole exhibit

6 At this hearing, Robin and Paul informed the judge that
they were not pursuing the issues of forgery or undue influence,
but only the due execution of the will under § 3-406.
6

admitted; none of John's proffered extrinsic evidence was

allowed in evidence. The judge allowed in the record certain

unobjected-to excerpts from Francis's deposition testimony,

after deeming him unavailable to testify.7 After determining

that John had failed to meet his burden of proving that the will

was executed in conformity with G. L. c. 190B, § 2-502, the

judge dismissed John's petition with prejudice. John timely

appealed.8 The sole issue for review on appeal is whether John

received a fair hearing on his petition. We conclude that he

did not.

Discussion. The proper execution of a will requires that

the will be "(1) in writing; (2) signed by the testator . . .;

and (3) signed by at least [two] individuals, each of whom

witnessed either the signing of the will . . . or the testator's

acknowledgement of that signature or acknowledgment of the

will." G. L. c. 190B, § 2-502 (a). Here, on its face, the will

met the statutory requirements of proper execution. However,

because Robin and Paul challenged the validity of the will

execution, and because the will is not self-proving, "the

7 The excerpts admitted generally pertained to Francis's
discussions with the testator about his need for a will,
Francis's familiarity with the attesting witnesses, his
relationship with the testator, and the testator's relationship,
or lack of relationship, with Robin and Paul.

8 John subsequently filed a motion to stay the proceedings
and a motion for recusal; both were denied.
7

testimony of at least [one] of the attesting witnesses, if

within the [C]ommonwealth, competent and able to testify, is

required. Due execution of a will may be proved by other

evidence." G. L. c. 190B, § 3-406 (a).

It is undisputed that each of the three attesting witnesses

was deceased at the time of trial, making it impossible for

John, as the proponent of the will, to prove the will's validity

through the testimony of at least one of those witnesses. See

Farrell v. McDonnell, 81 Mass. App. Ct. 725, 728 (2012) ("The

burden of proving proper execution rest[s] upon the proponent

and require[s] [him] to prove that all the formal requirements

of the statute were met. . . . A presumption of proper

execution is inferred upon proof of all the signatures"

[quotation omitted]). However, to meet his burden in proving

proper execution, the statute provides John an additional option

-- proving the will's validity "by other evidence." G. L.

c. 190B, § 3-406 (a).

It was long ago held by the Supreme Judicial Court that

"the death of an attesting witness, or of all the attesting
witnesses, is not to defeat the validity of the will, if,
in fact, duly executed. It changes the form of the proof,
and allows the introduction of secondary evidence of the
due attestation and execution of the will. Such
attestation is then to be shown, as it would be in the case
of deeds, by proof of the handwriting of the witness. That
being shown, prima facie, it is to be taken to be true, and
to have been put there for the purpose stated in connection
with the signature. It is to be assumed, as regards that
witness, that he duly attested the will in the presence of
8

and at the request of the testator. In considering the
sufficiency and weight of the evidence to establish the due
and proper execution of this will, the fact of the death of
th[e] witness, and the presumptions that arise from proof
of [the witness's] handwriting, are somewhat material.
. . . [I]f nothing appears in other parts of the evidence
to control the presumption resulting from proof of [the
witness's] handwriting, it may be taken that . . . it was
properly made to the signature by the testator."

Leatherbee v. Leatherbee, 247 Mass. 138, 141-142 (1923), quoting

Nickerson v. Buck, 12 Cush. 332, 341 (1853).

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 signature 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.9 The judge referred to John's

9 At the February 4, 2019 hearing on John's motion to amend
his pretrial memorandum (which was not on the "eve" of trial, as
Robin and Paul suggest), the judge initially erroneously ruled
which party was obligated to prove the validity of the will --
putting the burden on Paul and Robin, and stating that they
needed to call a handwriting expert to prove forgery. The judge
9

"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,10 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 within the contested exhibits -- extrinsic

evidence that potentially could have verified the signatures and

validated the will. This too was error.11 See Okoli v. Okoli

(No. 1), 81 Mass. App. Ct. 371, 379 n.13 (2012) ("the trier of

denied John's motion to amend his pretrial memorandum to add his
handwriting expert to the witness list.
10 At the January 23, 2019, pretrial conference, the parties

submitted to the judge binders of the proposed contested and
uncontested trial exhibits; the will was the only uncontested
exhibit. According to John, the contested exhibits he proffered
consisted of various court pleadings, recorded deeds, and
recorded trust documents containing samples of the testator's
signature, as well as the signatures of the attesting witnesses.
In support of the contested exhibits, John suggested that these
documents, signed in close proximity to the execution of the
will, established the testator's intent in developing an estate
plan, which would include the preparation of a will. Counsel
for Paul and Robin argued at the hearing that none of the
extrinsic evidence proffered by John was probative of proper
execution of the will. The judge stated that she was not a
handwriting expert, and reiterated that the trial was focused
only on the validity of the will.

11The judge improperly excluded portions of Francis's
deposition testimony that included potential evidence as to the
authentication of the testator's signature.
10

fact can determine the authenticity of a handwriting for herself

when, as in this case, there are genuine specimens with which to

compare it"); G. L. c. 190B, § 3-406 (a) ("Due execution of a

will may be proved by other evidence").

By denying John the opportunity to present extrinsic

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. See

Adoption of Georgia, 433 Mass. 62, 65 (2000), quoting Preston v.

Peck, 271 Mass. 159, 164 (1930). Contrast Matter of Moran, 479

Mass. 1016, 1020-1021 (2018) (respondent provided fair hearing

when no limitation was placed on testimony and he was allowed

full access to copious pages of notes during testimony). We do

not here decide whether the extrinsic evidence proffered 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,

§ 3-406. 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 judge may revisit the issue

of permitting expert testimony on the subject. See G. L.

c. 190B, § 3-406 (a).
11

Conclusion. 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.12

So ordered.

12The request of Robin and Paul for appellate attorney's
fees and double costs is denied.