NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
22-P-1251
IN THE MATTER OF THE ESTATE OF DOROTHY M. KEEFE.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
John Keefe (John), as beneficiary under the will of his
mother, Dorothy M. Keefe (decedent), timely appeals from a
"Decree and Order for Complete Settlement" of the decedent's
estate (decree). John argues that a judge of the Probate and
Family Court erred in entering that decree and in allowing a
"Motion to Compel Personal Representative to Disburse Funds from
the Estate" (motion to compel) because he timely filed a notice
of appearance and objection to the "Petition for Order of
Complete Settlement" of the estate (petition). Because John
fails to demonstrate any prejudice from the allowance of the
motion or the entry of the decree, we affirm.
Background. 1. The present action. The decedent executed
her will on June 22, 2005. John and Pauline Twomey (Pauline)
are the decedent's children and are essentially the sole beneficiaries under her will. In 2016, after the decedent's
death, Pauline filed a petition for formal probate of the
decedent's will. Under the will, the siblings each inherited a
one-half interest in the decedent's home in Milton and John had
the right to purchase Pauline's one-half interest in the
property. John exercised that right in 2018, paid half of the
sales value of the home to the estate, and received title to the
property.1 Attorney Elizabeth White, who had been appointed
special personal representative of the decedent's estate on
October 5, 2016, placed the sale proceeds that would be
distributed to Pauline in escrow in a money market account.2
In 2020, Pauline filed a "Motion for Allowance of Will and
Authorization for Special Personal Representative to Administer
the Estate." In 2021, a Probate and Family Court judge
appointed Attorney White as personal representative of the
estate and ordered the will admitted to probate. In January
2022, Attorney White filed a "Petition for Order of Complete
Settlement" of the estate along with an inventory and a "First
and final account" (collectively the petition), which included a
1 The property was valued at $487,500. The closing for the sale of the property occurred on January 19, 2018. As of late 2021, the sale proceeds were valued at $236,868.10, which was the amount held in escrow in a money market account.
2 As special personal representative of the estate, Attorney White was the custodian of the sale proceeds from John's buyout of the decedent's home.
2 listing of the sale proceeds in the money market account. See
notes 1 and 2, supra. On January 18, 2022, a "Citation on
Petition for Order of Complete Settlement" issued from the
Probate and Family Court. That citation contained various
errors including an incorrect return date of April 27, 2016. On
or about June 7, 2022, a new "Citation on Petition for Order of
Settlement" issued, with a corrected return date of July 20,
2020. On June 10, 2022, John timely filed a notice of
appearance and objection to the Petition. The notice of
appearance and objection included a representation that "[a]
written affidavit of objections signed by [John], stating the
specific facts and grounds upon which the objections are based
. . . will be filed within 30 days after the return date."
Meanwhile, in March 2022, Pauline filed a motion to compel
wherein she sought an interim distribution of $230,000 (which
represented most of the sale proceeds) pending the court's
anticipated decree. John filed a statement of opposition to
Pauline's motion to compel, with an attached affidavit from
John's counsel averring that he filed the notice of appearance
and objection to the petition, and that "John . . . intends to
file an Affidavit of Objection within the time period required
by court rule."
On June 22, 2022, before John filed the written affidavit
referenced in the notice of appearance and objection, a Probate
3 and Family Court judge held a hearing on the motion to compel.3
Attorney White could not attend that hearing but she filed an
affidavit averring that while she was "not opposed to
distributing the proceeds of the estate to Pauline" she
requested a "Court Order for the same given the objection filed
from John" to the petition. During the hearing, the judge asked
John about his objection. John's counsel responded that there
was an "open equity action" and explained that if John prevailed
in that separate equity action, then the money due to John would
be "going to the estate, and that money's going to go 50 percent
to [John] and 50 percent to [Pauline]. So, you can't close the
estate at this point." Following the hearing, on July 18, 2022,
the judge allowed the motion to compel, and also entered the
decree. He wrote in a margin endorsement, "Motion is Allowed,
after hearing. Moreover, [d]ecree shall enter. While citation
return date is 7/20/22, all parties interested have
settled/resolved this matter and made their positions known to
the Court at hearing on 6/22/22."
3 John did not produce a copy of the transcript of the hearing on the motion to compel for our review on appeal. However, Pauline provided it in a supplemental appendix.
4 2. The equity action.4 John brought the equity action
against Cornelius Twomey, Pauline's husband, on July 1, 2016.
In his complaint John alleged, in relevant part, that without
John's knowledge the decedent opened bank accounts as a "Joint
Tenant" with Cornelius; that Cornelius avoided using the funds
in those accounts for their intended purpose, which was for
medical care of the decedent and her now deceased husband,
Harold J. Keefe; that Cornelius treated those funds as his own;
and that the money in those accounts is "properly a part of the
Estate of [the decedent]." Following a trial in the Probate and
Family Court, the judge5 determined that the decedent "intended
to make a gift of the funds contained in the joint account she
created with [Cornelius]." The judge further found that John
failed to sustain his burden of proving that the transaction at
issue (i.e. the decedent's gift for the benefit of Cornelius and
his family) was "not to be taken at face value." Accordingly,
judgment entered in the equity action in favor of Cornelius.
Although John filed a notice of appeal from that judgment, he
4 We derive the background regarding the equity action from the judge's findings of fact, rationale, and conclusions of law in that matter.
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NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
22-P-1251
IN THE MATTER OF THE ESTATE OF DOROTHY M. KEEFE.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
John Keefe (John), as beneficiary under the will of his
mother, Dorothy M. Keefe (decedent), timely appeals from a
"Decree and Order for Complete Settlement" of the decedent's
estate (decree). John argues that a judge of the Probate and
Family Court erred in entering that decree and in allowing a
"Motion to Compel Personal Representative to Disburse Funds from
the Estate" (motion to compel) because he timely filed a notice
of appearance and objection to the "Petition for Order of
Complete Settlement" of the estate (petition). Because John
fails to demonstrate any prejudice from the allowance of the
motion or the entry of the decree, we affirm.
Background. 1. The present action. The decedent executed
her will on June 22, 2005. John and Pauline Twomey (Pauline)
are the decedent's children and are essentially the sole beneficiaries under her will. In 2016, after the decedent's
death, Pauline filed a petition for formal probate of the
decedent's will. Under the will, the siblings each inherited a
one-half interest in the decedent's home in Milton and John had
the right to purchase Pauline's one-half interest in the
property. John exercised that right in 2018, paid half of the
sales value of the home to the estate, and received title to the
property.1 Attorney Elizabeth White, who had been appointed
special personal representative of the decedent's estate on
October 5, 2016, placed the sale proceeds that would be
distributed to Pauline in escrow in a money market account.2
In 2020, Pauline filed a "Motion for Allowance of Will and
Authorization for Special Personal Representative to Administer
the Estate." In 2021, a Probate and Family Court judge
appointed Attorney White as personal representative of the
estate and ordered the will admitted to probate. In January
2022, Attorney White filed a "Petition for Order of Complete
Settlement" of the estate along with an inventory and a "First
and final account" (collectively the petition), which included a
1 The property was valued at $487,500. The closing for the sale of the property occurred on January 19, 2018. As of late 2021, the sale proceeds were valued at $236,868.10, which was the amount held in escrow in a money market account.
2 As special personal representative of the estate, Attorney White was the custodian of the sale proceeds from John's buyout of the decedent's home.
2 listing of the sale proceeds in the money market account. See
notes 1 and 2, supra. On January 18, 2022, a "Citation on
Petition for Order of Complete Settlement" issued from the
Probate and Family Court. That citation contained various
errors including an incorrect return date of April 27, 2016. On
or about June 7, 2022, a new "Citation on Petition for Order of
Settlement" issued, with a corrected return date of July 20,
2020. On June 10, 2022, John timely filed a notice of
appearance and objection to the Petition. The notice of
appearance and objection included a representation that "[a]
written affidavit of objections signed by [John], stating the
specific facts and grounds upon which the objections are based
. . . will be filed within 30 days after the return date."
Meanwhile, in March 2022, Pauline filed a motion to compel
wherein she sought an interim distribution of $230,000 (which
represented most of the sale proceeds) pending the court's
anticipated decree. John filed a statement of opposition to
Pauline's motion to compel, with an attached affidavit from
John's counsel averring that he filed the notice of appearance
and objection to the petition, and that "John . . . intends to
file an Affidavit of Objection within the time period required
by court rule."
On June 22, 2022, before John filed the written affidavit
referenced in the notice of appearance and objection, a Probate
3 and Family Court judge held a hearing on the motion to compel.3
Attorney White could not attend that hearing but she filed an
affidavit averring that while she was "not opposed to
distributing the proceeds of the estate to Pauline" she
requested a "Court Order for the same given the objection filed
from John" to the petition. During the hearing, the judge asked
John about his objection. John's counsel responded that there
was an "open equity action" and explained that if John prevailed
in that separate equity action, then the money due to John would
be "going to the estate, and that money's going to go 50 percent
to [John] and 50 percent to [Pauline]. So, you can't close the
estate at this point." Following the hearing, on July 18, 2022,
the judge allowed the motion to compel, and also entered the
decree. He wrote in a margin endorsement, "Motion is Allowed,
after hearing. Moreover, [d]ecree shall enter. While citation
return date is 7/20/22, all parties interested have
settled/resolved this matter and made their positions known to
the Court at hearing on 6/22/22."
3 John did not produce a copy of the transcript of the hearing on the motion to compel for our review on appeal. However, Pauline provided it in a supplemental appendix.
4 2. The equity action.4 John brought the equity action
against Cornelius Twomey, Pauline's husband, on July 1, 2016.
In his complaint John alleged, in relevant part, that without
John's knowledge the decedent opened bank accounts as a "Joint
Tenant" with Cornelius; that Cornelius avoided using the funds
in those accounts for their intended purpose, which was for
medical care of the decedent and her now deceased husband,
Harold J. Keefe; that Cornelius treated those funds as his own;
and that the money in those accounts is "properly a part of the
Estate of [the decedent]." Following a trial in the Probate and
Family Court, the judge5 determined that the decedent "intended
to make a gift of the funds contained in the joint account she
created with [Cornelius]." The judge further found that John
failed to sustain his burden of proving that the transaction at
issue (i.e. the decedent's gift for the benefit of Cornelius and
his family) was "not to be taken at face value." Accordingly,
judgment entered in the equity action in favor of Cornelius.
Although John filed a notice of appeal from that judgment, he
4 We derive the background regarding the equity action from the judge's findings of fact, rationale, and conclusions of law in that matter. See note 5, infra.
5 The judge presiding at the equity action trial was the same judge who allowed the motion to compel and entered the decree in the present action.
5 failed to perfect and pursue that appeal, which therefore was
dismissed on February 22, 2024.
Discussion. John argues that the motion to compel should
not have been allowed and the decree should not have entered
before the time to file his affidavit had elapsed under G. L.
c. 190B, § 1-401, and Rule 72 (c) (3) of the Supplemental Rules
of the Probate and Family Court (2012). John further maintains
that he had a "legitimate concern pertaining to the allowance of
the account as well as the closing of the estate while the
related equity proceeding where [he] is trying to recover for
the Estate of Dorothy M. Keefe, non-probate assets was pending."
There is a measure of persuasiveness to the claim that the
judge’s actions violated the terms of G. L. c. 190B, § 1-401.
Under § 1-401 (e), an "objecting party shall file a written
affidavit of objections to [a] proceeding, stating the specific
facts and grounds upon which the objection is based within 30
days after the return date." Here, where the corrected citation
had a return date of July 20, 2022, John had until August 19,
2022, to file his written affidavit of objections. In ruling on
the motion to compel and issuing the decree prior to that date,
the judge may have violated G. L. c. 190B, § 1-401 (e). Of
course, the purpose of the statutory provision at issue is to
provide an opportunity, within the specified time, for
objections to be made. Here, where John had the opportunity to
6 present his objections and explain his position, it does not
necessarily follow as a matter of law that the judge was
required to wait until the expiration of the deadline. In any
event, for purposes of our analysis we will assume arguendo that
the plain language of the statute was violated.
However, that does not end our analysis. In the present
context, appellate relief will not be granted absent a showing
of prejudice. See Chongris v. Board of Appeals of Andover, 17
Mass. App. Ct. 999, 1000-1001 (1984) ("Every violation of a
procedural rule . . . need not -- and should not -- require the
perpetrator to be undone . . . the failure in technical
compliance worked no prejudice against [appellant]" [quotation
omitted]). See also White v. Peabody Constr. Co., 386 Mass.
121, 128 (1982) (where judge did not adhere to procedural rule,
court "concluded that, as a practical matter, the plaintiffs
have not been prejudiced by the failure of the judge to comply
with the [rule's] notice requirements"). Here, John represented
to the judge that if he prevailed in the equity action,
prejudice would result because there would be no money from the
estate to pay him. John did not allege any other prejudice in
the Probate and Family Court proceedings. Likewise, in his
appellate brief, John does not allege any prejudice apart from
the sole claim that it was error to allow the motion and enter
the decree while his attempt to recover nonprobate assets for
7 the estate in the equity action was pending. At oral argument,
John affirmed that his sole claim of prejudice hinged on the
outcome of the equity action. It is undisputed that John did
not prevail in the equity action, and that the appeal of that
matter has been dismissed. Because John fails to allege, much
less demonstrate any prejudice, his claim is unavailing. See
White, 386 Mass. at 126-128.6
In short, John makes no argument that either the judge’s
allowance of the motion to compel or entry of the decree caused
him any prejudice. Instead, he claims that the statutory
violation, without more, requires reversal. He cites no legal
authority to support this argument. Indeed, the claim elevates
6 We note that John had a full opportunity to articulate his objections at the hearing on the motion to compel and he does not contend otherwise. We further note in this regard that John received his inheritance without delay while, to date, he has precluded Pauline from receiving the sale proceeds due to her.
8 form over substance. Accordingly, we affirm the order allowing
the motion to compel and the entry of the decree.7
Order on motion to compel entered October 14, 2022, affirmed.
Judgment/Decree on complete settlement entered October 14, 2022, affirmed.
By the Court (Neyman, Brennan & Toone, JJ.8),
Assistant Clerk
Entered: May 17, 2024.
7 Pauline's request for attorney's fees and costs is denied.
8 The panelists are listed in order of seniority.