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,
David T. Fulmer for John J. King, Jr.
Dana Alan Curhan for Paul M. King &
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 the testator and to appoint John 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. 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
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. In January
2018, 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,
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. 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
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.
At the February 14, 2019 bifurcated trial,
John was the only witness to testify, and the will was the sole exhibit
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.
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. 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 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
It was long ago held by the Supreme
Judicial Court that
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 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, 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. The judge referred to John's "last
minute" request to have the expert testify as "trial by
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
within the contested exhibits -- extrinsic evidence that potentially could have
verified the signatures and validated the will.
This too was error. See Okoli
v. Okoli (No. 1), 81 Mass. App. Ct. 371, 379 n.13 (2012) ("the trier of
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
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
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.
 Because some of the parties share the
same surname, we will refer to the parties by their first names for ease of
 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
 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 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.
 As John argues, it does not appear
that his motion to strike was ever ruled on by the judge.
 Elisa did not join the motion to
bifurcate, and did not participate in the bifurcated trial.
 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.
 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
 John subsequently filed a motion to
stay the proceedings and a motion for recusal; both were denied.
 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 denied John's motion to amend his pretrial memorandum to add his
handwriting expert to the witness list.
 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.
 The judge improperly excluded
portions of Francis's deposition testimony that included potential evidence as
to the authentication of the testator's signature.
 The request of Robin and Paul for
appellate attorney's fees and double costs is denied.