Volume 34, Issue No.15, December 5, 2005

Why should Probate Rule 16 trump Rule 27B?

By C. Peter R. Gossels

The "unpublished" Appeals Court decision in Hunter v. O'Rourke, digested in the Aug. 15, 2005, issue of Lawyers Weekly, was truly disappointing to all those who have been working to reduce the costs of litigation by simplifying the rules and practices that govern the resolution of disputes by our courts.

The issue in O'Rourke dealt with the rules governing will contests, which can only be initiated by filing an affidavit of objections, pursuant to the provisions of Probate Rule 16, within 30 days after the return day of the petition for probate, stating the specific facts and grounds upon which the objections to the petition is based.

In construing the provisions of Rule 16, the courts have given the contestants every advantage over the petitioners.

In 1993, the Appeals Court allowed contestants to conduct unlimited discovery and produce amended objections after petitioners had filed their motion to strike the original Rule 16 affidavit. Hobbs v. Carroll, 34 Mass. App. Ct. 951 (1993).

In 2001, the Appeals Court held that probate judges must accept as true all of the allegations of fact set forth in contestants' affidavits when they consider motions under Rule 16 to strike such affidavits and the appearance of the contestants. Baxter v. Grasso, 50 Mass. App. Ct. 692, 694 (2001).

In 2003, the Appeals Court went further by holding that probate judges may not consider affidavits filed by petitioners when they consider their motions to strike under Rule 16. Brogan v. Brogan, 59 Mass. App. Ct. 398, 400-401 (2003).

This line of decisions seems more and more curious when it is considered in the light of Probate Rule 27B, promulgated by the Pro-bate Court with the approval of the

Supreme Judicial Court on Jan. 1, 2000, which authorizes the judges of the Probate Court to grant summary judgment in accord with the provisions of Mass. R. Civ. P. 56.

Dispositive motions, such as motions for summary judgment, are favored by the SJC and many practitioners where applicable, because:

"Rule 56 is a welcome and progressive addition to judicial procedure in this Commonwealth. It creates an excellent device to make possible the prompt disposition of controversies on their merits without a trial if in essence there is no real dispute as to the salient facts or if only a question of law is involved." Community National Bank v. Dawes, 369 Mass. 550, 553 (1976), Carnesso v. Commissioner of Corrections, 390 Mass. 419 (1983), and Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716 (1991).

That view, alas, has not been shared by the Appeals Court. In Brogan, decided on Sept. 25, 2003, a panel held that "in will contests, the procedure laid out in Rule 16 must be exhausted before there is recourse to a motion for summary judgment."

The court cited no rationale, precedent or authority for insisting that petitioners cannot proceed under the new Rule 27B until after they exhausted their rights under the older Rule 16.

The SJC has, after all, held on numerous occasions that legislation (or court rules) must be construed so that all of its provisions are given effect, so that no part will be inoperative or superfluous. Wolfe v. Gormally, 440 Mass. 699, 704 (2004), and Bankers Life & Cas. Co. v. Commissioner of Ins., 427 Mass. 136, 140 (1998), quoting 2A N. Singer, Sutherland Statutory Construction 46.06 (6th Ed. 2000).

The court has also held that "where ... a statute contains seemingly conflicting language, a court must interpret ... (it), if possible, so as to make it an effectual piece of legislation in harmony with common sense and sound reason." Massachusetts Comm'n Against-Discrimination v. Liberty Mutual Insurance Co., 371 Mass. 186, 190 (1976). See also Risk Management Fndn of Harvard Med. Instns. v. Commissioner of Ins., 407 Mass. 498, 503 (1990), and KCI Management, Inc. v. Board of Appeals of Boston, 54 Mass. App. Ct 254, 259-260 (2002).

And shouldn't Rule 27B be deemed to govern will contests, where applicable, since it was promulgated long after Rule 16? Mirageas v. M.B.T.A., 391 Mass. 815, 819 (1984).

Every petitioner confronted with a Rule 16 affidavit today must draft and file a motion to strike that affidavit, supported by a memorandum of law, in the hope that the court will find the affidavit of objections to be frivolous - a hard thing to prove where the allegations of fact set forth therein are accepted as true for the purposes of challenges under Rule 16, and no opposing affidavits filed by the petitioner are permitted.

Motions to strike may also be denied as premature so long as the discovery process has not been completed. The petitioner must then wait for months before the court will act on his or her motion to strike, because it now takes nearly two months just to get a hearing upon a motion in Middlesex and Norfolk counties.

And if the court shall deny the motion, the petitioner must then draft and file a motion for summary judgment, as well as a memorandum of law with supporting affidavits, wait another two months for a hearing and some additional months before obtaining a decision on his motion. (I recently waited more than a year for a decision upon a motion for summary judgment on a similar matter pending in Middlesex County.)

The expensive, time-consuming procedure dictated by Brogan em-powers those persons who allege that a testator unfairly denied them a share of his estate, to frustrate the ex-press will of the testator for years, and causes the petitioner so much expense that even a frivolous challenge can force a petitioner with modest means (and that includes most people) to try to pay off the contestant or settle his claim upon terms inimical to the wishes of the testator.

One might have hoped that the foregoing considerations would have persuaded the Appeals Court to modify the two-step approach dictated by the Brogan panel, but those hopes were ended for the time being by the recent decision in the O'Rourke case.
Unlike the petitioner in Brogan, O'Rourke had filed a motion for summary judgment under Rule 27B, supported by affidavits, in the hope, I assume, that the Appeals Court might change its position. The trial judge shared the petitioner's hope, concluded that the decedent had testamentary capacity when the will was executed, and allowed O'Rourke's motion as well as the will of the decedent.

The Appeals Court reversed, however, holding that the judge had erred in allowing the petitioner's motion for summary judgment, because the petitioner had failed to file a Rule 16 motion to strike. In support of its decision, the O'Rourke panel merely cited Brogan, which had created that two-step procedure two years earlier, without citing any further rationale, precedent or authority therefor.

The two-step procedure dictated by Brogan and O'Rourke may have been prompted by hopes of judicial economy, but all it has achieved is that the courts are hearing more motions concerning will contests than they would if many of those disputes could be resolved by motions for summary judgment.

One is left to wonder why the Appeals Court continues to insist on the expensive, time-consuming, two-step procedure dictated by Brogan after it had promulgated Rule 27B five years ago, presumably "to make possible the prompt disposition of controversies on their merits without a trial." See Dawes, above.

Our only hope seems to be that the SJC will overrule O'Rourke or cause the following sentence to be added to paragraphs (a) and (b) of Rule 16:

"A motion to strike may be presented in the form of a motion for summary judgment with supporting affidavits and or verified pleadings pursuant to the provisions of Rule 27B ..."

On May 30, 2006, the Supreme Judicial Court adopted the reasoning of my article and overturned the judgment of the Appeals Court in O'Rourke v. Hunter, 446 Mass. 814 (2006).

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