The Will Of Nevers

The Massachusetts Supreme Judicial Court has remanded a will contest where the principal beneficiary was the decedent’s next door neighbor’s daughter

This matter involves the legitimacy of the will of Lucy M. Nevers, dated May 6, 2016. Nevers died on October 24, 2019. On December 3, 2019, petitioner Debra L. Coccoro, the proponent of the will, filed in the Probate and Family Court a petition for formal probate of the will and for appointment of a personal representative, seeking to be appointed the personal representative of Nevers’s estate, a position to which she was nominated in Nevers’s will. Coccoro, an elder law attorney, is the daughter of Nevers’s next door neighbor. In addition to nominating Coccoro as personal representative, the will left ninety percent of Nevers’s estate to Coccoro to be used for the education of Coccoro’s own daughters. It left five percent each to two charities, the Massachusetts Society for the Prevention of Cruelty to Animals and the Garden Club of Harwich.

The will, drafted by Attorney Kelly Jason, excluded all of Nevers’s relatives, including her sister who was alive at the time of the drafting and execution of the will, “for reasons best known to [her]self.” The will was not signed by the testator herself. Rather, it reflected that Nevers’s “signature” –- that is, her name written in cursive –- was affixed by a notary public. Nevers’s failure personally to sign the will appears to have been anticipated at the time the will was finally prepared, as printed language appears on the signature page reading, “Signature affixed by notary public at her request and in the presence of the following two witnesses.”

Although the signature line does not specify who the notary public was that affixed Nevers’s “signature,” Attorney Jason was the notary public who notarized that same page of the will. The witnesses attested that “[w]e, the undersigned witnesses, each do hereby declare in the presence of the aforesaid [t]estatrix, that the [t]estatrix signed and executed this instrument as her last [w]ill in the presence of each of us, that she signed it willingly, that each of us hereby signs this [w]ill as witness in the presence of the [t]estatrix, and that to the best of our knowledge the [t]estatrix is eighteen (18) years of age or over, of sound mind, and under no constraint or undue influence.”

The disinherited lost below

After a hearing on August 4, 2020, the motion judge entered an order striking the affidavits of objections on September 8, 2020. The objectors filed a timely notice of appeal regarding the motion judge’s September 8, 2020, order. Subsequently, the Probate and Family Court issued its decree and order of formal probate on October 7, 2020, and the objectors filed a second notice of appeal that entered on the docket on October 20, 2020, which incorporated the previous notice of appeal from the September 8, 2020, order.

The signature issue does not preclude proper admission into probate

This does not mean the proponent cannot prove that the will was properly executed, but it does mean that the proponent is not entitled to the presumption of “compliance with signature and other requirements of execution,” G. L. c. 190B, § 3-406 (b), provided when a testator utilizes the mechanism in G. L. c. 190B, § 2-504, for the creation of a self-proved will.

…In light of our conclusion, we need not address the sufficiency of the affidavits with respect to the objectors’ claims of undue influence and lack of testamentary capacity. Nor need we evaluate the propriety of the motion judge’s determination not to rule on the motions with respect to discovery prior to ruling on the motion to strike. Before trial, however, the objectors should be permitted expeditiously to complete discovery, including through the entry of a temporary order by a judge of the Probate and Family Court if that is necessary. In the interest of avoiding piecemeal litigation, we note that, as the objectors have argued, it has long been held in this Commonwealth that an attorney may testify without violating the attorney-client privilege “in regard to what was said to [her] by [the testator], when the latter came to see [her] in regard to drawing the will.” Doherty v. O’Callaghan, 157 Mass. 90, 91 (1892).

(Mike Frisch)