IN RE: the ESTATE OF Mary C. BENNETT. (2019)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

Mary C. Bennett died on December 17, 2015, leaving a will that she had executed one month earlier. One of her children, Tracey Bennett (Tracey ² ), was named executor in the will, which Tracey petitioned to admit to probate. Another daughter, Judith Bennett (Judith), sought to challenge the will as the product of Tracey's undue influence, and Judith filed an objection to that effect accompanied by an affidavit.³ Tracey filed a motion to strike the objection and affidavit on the ground that Judith had failed to set forth specific facts to support a claim of undue influence. See G. L. c. 190B, § 1-401 (e), (f); Brogan v. Brogan, 59 Mass. App. Ct. 398, 399-400 (2003), abrogated on other grounds by O'Rourke v. Hunter, 446 Mass. 814, 820 & n.11 (2006). By order dated November 9, 2016, and entered on November 17, 2016, a Probate and Family Court judge allowed Tracey's motion, and a decree and order of formal probate entered on November 22, 2016. On November 29, 2016, Judith served and filed a motion to amend the November 9, 2016 order, asking the judge to reconsider his decision to strike her objection and consider additional evidence not included in her original affidavit. The judge summarily denied the motion to amend by order entered on January 13, 2017. On February 10, 2017, Judith filed a notice of appeal.

We begin by noting what is and what is not properly before us in this appeal. The notice of appeal was timely as to the order denying Judith's motion to amend, the notice having been filed within thirty days of the order's entry. See Mass. R. A. P. 4 (a), as amended, 464 Mass. 1601 (2013). However, Judith did not appeal from the underlying November 9, 2016 order that struck her objection and affidavit, and the time to do so has long passed.⁴ ,⁵

Judith has not shown that the judge abused his discretion in denying the motion to amend. See R.W. Granger & Sons, Inc. v. J & S Insulation, Inc., 435 Mass. 66, 79 (2001). Indeed, the judge's denial of that motion could be upheld solely on the ground that the motion was untimely.

Finally, even if we assume that the underlying merits are properly before us, we discern no infirmity in the judge's ruling that Judith's objection and affidavit failed to allege specific facts supporting a case of undue influence. See Heinrich v. Silvernail, 23 Mass. App. Ct. 218, 223 (1986) (setting forth elements objector must show to make out claim of undue influence).

Order entered January 13, 2017, denying motion to amend affirmed.

FOOTNOTES

2.   As the parties share a surname, we shall refer to them by their first names for convenience.

3.   Under a prior will, Judith and her siblings were to receive equal shares of their mother's estate. Under the November 2015 will, Judith would receive nothing. According to Tracey, the mother disinherited Judith after discovering that Judith had transferred some $ 25,600 out of a joint account (of her mother and hers) into her own personal account. We have no reason to consider whether such allegations are true.

4.   We note that Judith did not file a motion to amend the decree and order of formal probate, or a notice of appeal therefrom. The notice of appeal indicates that Judith is appealing only the order denying her motion to amend.

5.   We have denied Judith's motion to expand the time for filing, as good cause has not been shown. See Mass. R. A. P. 14 (b), as amended, 378 Mass. 939 (1979); Kellermann v. Kellermann, 390 Mass. 1007, 1008 (1984) (“The fact the defendant was appearing pro se does not excuse the failure to file the claim of appeal within the applicable time period”).