In Purcell v. Landers, Case No. 10-P-1757, 2011 Mass.
App. Unpub. LEXIS 1251 (Dec. 6, 2011), a decision issued pursuant
to Rule 1:28, the Appeals Court affirmed in part and reversed and
remanded in part the probate court's disposition of a will
The decedent had one adopted daughter, the plaintiff Lisa
Purcell, and they were described as "estranged" from each
other. The decedent was afraid of the plaintiff, who had admitted
to sufficient facts and a guilty finding of threatening to commit a
crime against the decedent, apparently for threatening to burn down
his house with him in it, and whom the decedent said had taken
$26,000 from him during his lifetime.
In his will, the decedent left only $1 to the plaintiff, leaving
the rest to his friend, the defendant Richard Landers, whom the
decedent also named as executor. The defendant was described as the
decedent's "one true friend" for many years both
before and after the death of the decedent's wife in 1984.
The plaintiff objected to the allowance of the will and to the
defendant's appointment as executor, in part because it was the
defendant who had introduced the decedent to his estate planning
lawyer and drove the decedent to the lawyer's office for the
preparation of the will. After a trial, the probate court struck
the plaintiff's objections and allowed the will for probate,
finding that the defendant, rather than the plaintiff, had become
the natural object of the decedent's bounty.
The Appeals Court affirmed the portion of the probate
court's decision striking the plaintiff's objections, but
reversed the allowance of the will for probate, because the
defendant, as the proponent of the will, had not met his burden of
proving that the will was executed in accordance with the law.
Specifically, the defendant had not called the attesting witnesses
to testify at trial. "[T]he judge erred in not enforcing the
requirement of testimony by attesting witnesses. Instead, he
inappropriately shifted the burden of producing the witnesses to
the plaintiff. As a result, despite the judge's diligence in
preparing thoughtful findings, the defendant failed to satisfy his
burden to prove proper execution of the decedent's will as
required under G.L. c. 191, § 1." Based on this holding,
the Appeals Court remanded the case for further testimony by the
attesting witnesses and related evidence.
As plaintiffs increasingly hire "expert" witnesses who
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