Atty. Eric D. Correira Wins Case of First Impression in Massachusetts

Atty. Eric D. Correira recently won a case of first impression for clients in the Fiduciary Litigation Session (FLS) of the Massachusetts Probate and Family Court. That case, In Re: Estate of Estelle A. Rose, raised two issues never addressed by the Massachusetts courts: (1) whether one testator to a joint codicil could also serve as a witness to the other testator, and (2) whether a notary could qualify as a second witness. On both issues, FLS Judge Elaine M. Moriarty decided in the affirmative, with a decision that creates new Massachusetts law for the requirements of a valid last will and testament.

From the article: “Decedent Estelle A. Rose and her husband, Robert W. Rose Sr., signed a handwritten document removing their son, objector Timothy Rose, as a beneficiary of their will. Robert Sr., Estelle, and a notary each signed the purported codicil.

After Estelle died, Timothy filed an objection to probate of her will, arguing that it was legally impossible for Robert Sr. to act as both testator and witness to the codicil, resulting in there being only one witness to Estelle’s execution and rendering it invalid. But Judge Elaine M. Moriarty, sitting in the Fiduciary Litigation Session, disagreed . . .

Eric D. Correira of Swansea, who represented the petitioners, noted that Estelle and Robert Rose Sr. did not consult with an attorney when they drafted the codicil. ‘This case shows why maybe you shouldn’t do your own will,’ he said, ‘The entire situation would never have occurred had they gone to an attorney and had a codicil written with two disinterested witnesses and a notary in a law office.’

He also said the decision shows that someone’s testamentary wishes should not be voided simply because they did not follow standard procedure.

‘It’s worth noting that the court looked at the Massachusetts Uniform Probate Code, and there’s policy built into it that we shouldn’t fault people for doing handwritten documents and should try to effectuate their intent,’ Correira said. ‘I brought this up during oral argument and told the judge this is probably the worst codicil I’ve ever tried to probate. But at the end of the day, this isn’t graded. It’s ‘pass/fail’ and this is probably a C-minus, but it passes the test.’”

For the full article, click here.