In the Matter of the Estate of Dorothy M. Keefe.

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

22-P-1251

IN THE MATTER OF THE ESTATE OF DOROTHY M. KEEFE.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

John Keefe (John), as beneficiary under the will of his

mother, Dorothy M. Keefe (decedent), timely appeals from a

"Decree and Order for Complete Settlement" of the decedent's

estate (decree). John argues that a judge of the Probate and

Family Court erred in entering that decree and in allowing a

"Motion to Compel Personal Representative to Disburse Funds from

the Estate" (motion to compel) because he timely filed a notice

of appearance and objection to the "Petition for Order of

Complete Settlement" of the estate (petition). Because John

fails to demonstrate any prejudice from the allowance of the

motion or the entry of the decree, we affirm.

Background. 1. The present action. The decedent executed

her will on June 22, 2005. John and Pauline Twomey (Pauline)

are the decedent's children and are essentially the sole
beneficiaries under her will. In 2016, after the decedent's

death, Pauline filed a petition for formal probate of the

decedent's will. Under the will, the siblings each inherited a

one-half interest in the decedent's home in Milton and John had

the right to purchase Pauline's one-half interest in the

property. John exercised that right in 2018, paid half of the

sales value of the home to the estate, and received title to the

property.1 Attorney Elizabeth White, who had been appointed

special personal representative of the decedent's estate on

October 5, 2016, placed the sale proceeds that would be

distributed to Pauline in escrow in a money market account.2

In 2020, Pauline filed a "Motion for Allowance of Will and

Authorization for Special Personal Representative to Administer

the Estate." In 2021, a Probate and Family Court judge

appointed Attorney White as personal representative of the

estate and ordered the will admitted to probate. In January

2022, Attorney White filed a "Petition for Order of Complete

Settlement" of the estate along with an inventory and a "First

and final account" (collectively the petition), which included a

1 The property was valued at $487,500. The closing for the
sale of the property occurred on January 19, 2018. As of late
2021, the sale proceeds were valued at $236,868.10, which was
the amount held in escrow in a money market account.

2 As special personal representative of the estate, Attorney
White was the custodian of the sale proceeds from John's buyout
of the decedent's home.

2
listing of the sale proceeds in the money market account. See

notes 1 and 2, supra. On January 18, 2022, a "Citation on

Petition for Order of Complete Settlement" issued from the

Probate and Family Court. That citation contained various

errors including an incorrect return date of April 27, 2016. On

or about June 7, 2022, a new "Citation on Petition for Order of

Settlement" issued, with a corrected return date of July 20,

2020. On June 10, 2022, John timely filed a notice of

appearance and objection to the Petition. The notice of

appearance and objection included a representation that "[a]

written affidavit of objections signed by [John], stating the

specific facts and grounds upon which the objections are based

. . . will be filed within 30 days after the return date."

Meanwhile, in March 2022, Pauline filed a motion to compel

wherein she sought an interim distribution of $230,000 (which

represented most of the sale proceeds) pending the court's

anticipated decree. John filed a statement of opposition to

Pauline's motion to compel, with an attached affidavit from

John's counsel averring that he filed the notice of appearance

and objection to the petition, and that "John . . . intends to

file an Affidavit of Objection within the time period required

by court rule."

On June 22, 2022, before John filed the written affidavit

referenced in the notice of appearance and objection, a Probate

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and Family Court judge held a hearing on the motion to compel.3

Attorney White could not attend that hearing but she filed an

affidavit averring that while she was "not opposed to

distributing the proceeds of the estate to Pauline" she

requested a "Court Order for the same given the objection filed

from John" to the petition. During the hearing, the judge asked

John about his objection. John's counsel responded that there

was an "open equity action" and explained that if John prevailed

in that separate equity action, then the money due to John would

be "going to the estate, and that money's going to go 50 percent

to [John] and 50 percent to [Pauline]. So, you can't close the

estate at this point." Following the hearing, on July 18, 2022,

the judge allowed the motion to compel, and also entered the

decree. He wrote in a margin endorsement, "Motion is Allowed,

after hearing. Moreover, [d]ecree shall enter. While citation

return date is 7/20/22, all parties interested have

settled/resolved this matter and made their positions known to

the Court at hearing on 6/22/22."

3 John did not produce a copy of the transcript of the
hearing on the motion to compel for our review on appeal.
However, Pauline provided it in a supplemental appendix.

4
2. The equity action.4 John brought the equity action

against Cornelius Twomey, Pauline's husband, on July 1, 2016.

In his complaint John alleged, in relevant part, that without

John's knowledge the decedent opened bank accounts as a "Joint

Tenant" with Cornelius; that Cornelius avoided using the funds

in those accounts for their intended purpose, which was for

medical care of the decedent and her now deceased husband,

Harold J. Keefe; that Cornelius treated those funds as his own;

and that the money in those accounts is "properly a part of the

Estate of [the decedent]." Following a trial in the Probate and

Family Court, the judge5 determined that the decedent "intended

to make a gift of the funds contained in the joint account she

created with [Cornelius]." The judge further found that John

failed to sustain his burden of proving that the transaction at

issue (i.e. the decedent's gift for the benefit of Cornelius and

his family) was "not to be taken at face value." Accordingly,

judgment entered in the equity action in favor of Cornelius.

Although John filed a notice of appeal from that judgment, he

4 We derive the background regarding the equity action from
the judge's findings of fact, rationale, and conclusions of law
in that matter. See note 5, infra.

5 The judge presiding at the equity action trial was the
same judge who allowed the motion to compel and entered the
decree in the present action.

5
failed to perfect and pursue that appeal, which therefore was

dismissed on February 22, 2024.

Discussion. John argues that the motion to compel should

not have been allowed and the decree should not have entered

before the time to file his affidavit had elapsed under G. L.

c. 190B, § 1-401, and Rule 72 (c) (3) of the Supplemental Rules

of the Probate and Family Court (2012). John further maintains

that he had a "legitimate concern pertaining to the allowance of

the account as well as the closing of the estate while the

related equity proceeding where [he] is trying to recover for

the Estate of Dorothy M. Keefe, non-probate assets was pending."

There is a measure of persuasiveness to the claim that the

judge’s actions violated the terms of G. L. c. 190B, § 1-401.

Under § 1-401 (e), an "objecting party shall file a written

affidavit of objections to [a] proceeding, stating the specific

facts and grounds upon which the objection is based within 30

days after the return date." Here, where the corrected citation

had a return date of July 20, 2022, John had until August 19,

2022, to file his written affidavit of objections. In ruling on

the motion to compel and issuing the decree prior to that date,

the judge may have violated G. L. c. 190B, § 1-401 (e). Of

course, the purpose of the statutory provision at issue is to

provide an opportunity, within the specified time, for

objections to be made. Here, where John had the opportunity to

6
present his objections and explain his position, it does not

necessarily follow as a matter of law that the judge was

required to wait until the expiration of the deadline. In any

event, for purposes of our analysis we will assume arguendo that

the plain language of the statute was violated.

However, that does not end our analysis. In the present

context, appellate relief will not be granted absent a showing

of prejudice. See Chongris v. Board of Appeals of Andover, 17

Mass. App. Ct. 999, 1000-1001 (1984) ("Every violation of a

procedural rule . . . need not -- and should not -- require the

perpetrator to be undone . . . the failure in technical

compliance worked no prejudice against [appellant]" [quotation

omitted]). See also White v. Peabody Constr. Co., 386 Mass.

121, 128 (1982) (where judge did not adhere to procedural rule,

court "concluded that, as a practical matter, the plaintiffs

have not been prejudiced by the failure of the judge to comply

with the [rule's] notice requirements"). Here, John represented

to the judge that if he prevailed in the equity action,

prejudice would result because there would be no money from the

estate to pay him. John did not allege any other prejudice in

the Probate and Family Court proceedings. Likewise, in his

appellate brief, John does not allege any prejudice apart from

the sole claim that it was error to allow the motion and enter

the decree while his attempt to recover nonprobate assets for

7
the estate in the equity action was pending. At oral argument,

John affirmed that his sole claim of prejudice hinged on the

outcome of the equity action. It is undisputed that John did

not prevail in the equity action, and that the appeal of that

matter has been dismissed. Because John fails to allege, much

less demonstrate any prejudice, his claim is unavailing. See

White, 386 Mass. at 126-128.6

In short, John makes no argument that either the judge’s

allowance of the motion to compel or entry of the decree caused

him any prejudice. Instead, he claims that the statutory

violation, without more, requires reversal. He cites no legal

authority to support this argument. Indeed, the claim elevates

6 We note that John had a full opportunity to articulate his
objections at the hearing on the motion to compel and he does
not contend otherwise. We further note in this regard that John
received his inheritance without delay while, to date, he has
precluded Pauline from receiving the sale proceeds due to her.

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form over substance. Accordingly, we affirm the order allowing

the motion to compel and the entry of the decree.7

Order on motion to compel
entered October 14, 2022,
affirmed.

Judgment/Decree on complete
settlement entered October
14, 2022, affirmed.

By the Court (Neyman,
Brennan & Toone, JJ.8),

Assistant Clerk

Entered: May 17, 2024.

7 Pauline's request for attorney's fees and costs is denied.

8 The panelists are listed in order of seniority.

9