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17-P-1335                                             Appeals Court

        DOROTHY A. LEIGHTON, personal representative,1     vs.
                         BENGT HALLSTROM.


                             No. 17-P-1335.

        Plymouth.      September 7, 2018. - November 7, 2018.

            Present:   Green, C.J., Milkey, & Singh, JJ.


Devise and Legacy, Intestacy.     Executor and Administrator,
     Fiduciary duty.



     Petition for adjudication of intestacy filed in the
Plymouth Division of the Probate and Family Court Department on
April 29, 2015.

     A motion to strike an objection to a petition for an order
of complete settlement was heard by Patrick W. Stanton, J.


     Mark A. Tanner for the defendant.
     Stephen B. Rosales (Samantha Clark also present) for the
plaintiff.


    MILKEY, J.      On February 7, 2015, Bridgewater resident

Robert H. Olson died without leaving any known will.       He had no

surviving parents, spouse, or children.       The plaintiff, Dorothy


    1   Of the estate of Robert H. Olson.
                                                                     2


A. Leighton, a first cousin to Olson on his father's side,

stepped forward to claim his estate on behalf of herself and two

similarly situated relatives.    During the resulting intestacy

proceedings, in which Leighton was appointed personal

representative of the estate, the defendant, Bengt Hallstrom

presented himself as a first cousin on Olson's mother's side and

sought a proportionate share.    However, the Probate and Family

Court judge ultimately concluded that Hallstrom's efforts were

tardy.   Ruling that Hallstrom's claim was precluded as a matter

of law, the judge struck Hallstrom's objection to Leighton's

petition for order of complete settlement.      A magistrate then

entered a final decree settling Olson's estate without Hallstrom

receiving any share.     Because we agree with Hallstrom that the

judge erred in various respects, we vacate the order allowing

Leighton's motion to strike and the final decree settling the

estate, and remand for further proceedings.

     Background.2   1.   Leighton's petition.   Leighton initiated

these proceedings on April 29, 2015, by filing a petition for

formal adjudication of intestacy.    See G. L. c. 190B, § 3-402.

That petition also requested that Leighton be appointed the




     2 The key facts necessary to resolve this appeal are
uncontested.
                                                                    3


personal representative3 of Olson's estate.4   Leighton's petition

listed herself and two other first cousins as "all known heirs

on [Olson's] predeceased father's side."   It further stated:

"It is unknown if any heirs exist on [Olson's] predeceased

mother's side and, if so, the degree of kindred and location of

such heirs."   By checking a box on the court's preprinted form,

Leighton requested that the court "[f]ormally determine [Olson]

died without a [w]ill and determine heirs."

     2.   Hallstrom comes forward.   By order dated July 6, 2015,

a guardian ad litem (GAL) was appointed to represent Olson's

unascertained heirs with respect to Leighton's pending petition.

Before the GAL filed his report, Hallstrom, a resident of

Uddevalla, Sweden, stepped forward and identified himself to

Leighton as an interested person.    Specifically, Hallstrom's

counsel sent Leighton's counsel a letter that included a

genealogical chart purporting to show that Hallstrom was the son


     3 Under the Massachusetts Uniform Probate Code, "[p]ersonal
representative" is defined broadly to encompass a number of
roles more commonly denoted in the case law, including, as
examples, "executor" and "administrator." See G. L. c. 190B,
§ 1-201 (37).

     4 In addition, Leighton's petition, together with an
accompanying motion, requested that she immediately be appointed
as special personal representative. That motion was allowed on
May 18, 2015. Although the relevant papers were not included in
the record appendix, what is before us suggests that Leighton's
appointment as special representative was necessitated by the
need for someone to manage real estate that Olson had owned.
See G. L. c. 190B, § 3-614.
                                                                       4


of Olson's mother's brother (and hence, a first cousin).       Using

a preprinted form, Hallstrom filed a notice of appearance, which

was docketed by the court.     On that form, Hallstrom checked the

box that signified that his appearance "is NOT an objection."5

His counsel explained in a contemporaneous letter to Leighton's

counsel, "I have not listed it as an objection since it is my

understanding by [sic] doing so will cause a contest in this

matter."

     3.    The GAL's report.   After having discussed the matter

with both Leighton and Hallstrom, and after having reviewed the

docket and certain other relevant documents, the GAL issued his

report, which was docketed on July 24, 2015.     That report

confirmed that Olson had died intestate and urged that a

personal representative be appointed "to take control of

[Olson's] real estate and prevent waste as well as marshaling

all assets of personal property."    The GAL assented to that

appointment after noting that Hallstrom -- the only additional

claimant who had surfaced -- had not objected.     With respect to

the key issue of determining heirs, the GAL suggested deferring

that issue to the future, stating, "The issue of determining




     5 The form included a different box, left unchecked, that
would have signified that what was being filed "IS an
objection."
                                                                      5


heirs can be addressed during the course of handling the

estate."

    4.     The July 2015 decree.   On July 27, 2015 -- that is,

three days after the GAL report was docketed -- a magistrate

acted on Leighton's pending petition by issuing what is styled

as a "decree and order on petition for formal adjudication."

That decree (the July 2015 decree) was issued on another

preprinted form.    Through the magistrate's checking the

appropriate boxes, the July 2015 decree ruled that Olson had

died intestate, and it appointed Leighton as personal

representative of his estate.      With respect to the identity of

Olson's heirs, the magistrate left blank the spaces provided on

the form for listing individual heirs and instead checked the

box that indicated that the heirs were "as stated in the

[p]etition."

    5.     Post-July 2015 proceedings.    In November of 2015,

Leighton filed a separate petition seeking court approval to

sell Olson's real estate.    That petition specifically listed

Hallstrom as a purported heir who would be due a one-quarter

share of the estate "pending verification of lineage."      It also

included a footnote underscoring that Leighton was not conceding

that Hallstrom was a first cousin but instead still was awaiting

proof of that.   Leighton simultaneously sent a letter to

Hallstrom's counsel seeking his assent to the sale of the
                                                                    6


property.    She explained:   "Since [Hallstrom] is a purported

heir of the Estate, we are requesting his signature on the

enclosed Petition for Sale of Real Estate to expedite the

process of obtaining a License to Sell."     The letter made it

clear that Leighton was not accepting the proof that Hallstrom

had supplied to date:    "Please be advised that unless and until

your client furnishes acceptable proof of lineage to this

office, the Estate will not recognize Bengt Hallstrom as an heir

of the Estate of Robert H. Olson."     Hallstrom's counsel

responded by providing Leighton the requested assent, as well as

by sending her various genealogical charts purporting to

document Hallstrom's status as a first cousin.    His letter

closed by stating, "I trust that this documentation will

establish my client as an heir.    Please let me know if you have

any questions or need any further documentation."

     By letter dated March 4, 2016, Leighton informed Hallstrom

that she still did not intend to recognize him as an heir

because she found his proof insufficient.     That letter also

included language that could be taken to suggest, for the first

time, that the court already had determined that the heirs were

limited to the three first cousins on Olson's father's side.6     At


     6   The relevant passage from the letter is as follows:

          "The Court has already issued a decree and order that
     Robert H. Olson died intestate, that Dorothy Leighton be
                                                                   7


the same time, the letter continued to indicate that Leighton

would recognize Hallstrom as an heir if "the Court makes a

formal determination of [his] status as an actual heir of the

Estate."   Finally, even though nothing in the record suggests

that Leighton ever had taken any affirmative steps of her own to

track down whether there were heirs on Olson's mother's side,

her March 2016 letter suggested that the onus was on Hallstrom

"to seek relief in the Probate Court in any way you deem

appropriate."

    By letter dated May 18, 2016, Hallstrom sent Leighton an

additional packet of genealogical records purporting to document




    appointed Personal Representative and that the heirs are as
    stated in the petition, specifically Dorothy A. Leighton,
    Paul Carson and Nancy Broadhead. A copy of the Court's
    decree and order is enclosed for your information. The
    Estate will proceed in accordance with that decree and
    order.

         "Although you filed an appearance with the Plymouth
    Probate Court, your appearance did not include an objection
    to any of the numerous Court proceedings the Estate has
    undertaken to date in administering the Estate. Your filed
    appearance will continue to entitle you to notice of the
    Estate's probate proceedings.

         "If you disagree with our position, your client is
    free to seek relief in the Probate Court in any way you
    deem appropriate and the Estate will respond accordingly to
    any such action. Until then, please be advised that until
    the Court makes a formal determination of Bengt Hallstrom's
    status as an actual heir of the Estate, the Estate will not
    recognize or treat him as one and will proceed
    accordingly."
                                                                     8


his status as a first cousin.7    His letter closed by stating:     "I

believe this is the requested information to hopefully establish

conclusively [Hallstrom's] status as an heir, but if there is

any further information or verification that is necessary,

please let me know."8

     In September of 2016, Hallstrom wrote to Leighton

requesting an update.    It is not clear if any direct response

was provided.   In any event, some two months later, in early

December, Leighton filed a petition for order of complete

settlement that sought approval to wind up the estate by

distributing it in three equal shares to her and the other two

first cousins on Olson's father's side.     Hallstrom docketed an

objection on January 30, 2017, and followed up about one month

later by submitting documentation purporting to show that he too

was a first cousin.     That documentation included an executed

"affidavit of research" from a London-based genealogist,

together with certified birth, baptism, death, and marriage

records from the Swedish region of Värmland, and the cities of


     7 The letter indicates that it was sent as a follow up to a
telephone conversation that the two counsel had had. The record
does not reveal the contents of that conversation.

     8 The package that Hallstrom sent included an unsigned
affidavit, apparently from the genealogical researcher whom
Hallstrom had hired. In his cover letter, Hallstrom promised to
send a signed affidavit as soon as possible. The record
indicates that the signed and notarized affidavit was supplied
in July of 2016.
                                                                    9


Uppsala and Gothenburg.   Leighton moved to strike Hallstrom's

objection, arguing that the July 2015 decree already had

determined that the heirs did not include Hallstrom and that

therefore, on various procedural and jurisdictional grounds, it

now was too late for Hallstrom to pursue his claim.9

     6.   The judge's rulings.   The judge agreed with several of

Leighton's arguments.10   Relying on language from the

Massachusetts Uniform Probate Code (MUPC), the judge reasoned

that the July 2015 decree issued by the magistrate must be

deemed "final" unless Hallstrom timely filed either an appeal of

that decree or a motion to vacate it (neither of which he did).

See G. L. c. 190B, § 3-412.   He went on to point out that even

if Hallstrom had filed a timely motion to vacate the July 2015

decree, Hallstrom could not have met the other statutory

criteria necessary to allow such a motion to be granted.




     9 Leighton also sought to question Hallstrom's claimed
kinship on the facts. For example, she sought to poke holes in
the archival records, e.g., by focusing on whether the first
name of Olson's mother -- identified alternatively as "Valborg"
and "Walborg" -- properly began with a "W" or a "V." The judge
did not address Leighton's factual claims at this stage in the
proceedings, and neither do we. See G. L. c. 190B, § 1-401
(affidavits of objection are reviewed only to determine if they
meet statutory requirements); O'Rourke v. Hunter, 446 Mass. 814,
818 (2006) (in reviewing affidavit of objection, factual
inferences to be drawn in favor of the objector).

     10The judge rejected Leighton's argument that the doctrine
of res judicata barred Hallstrom from claiming that he was an
heir. Leighton no longer presses this argument.
                                                                  10


     Hallstrom separately argued that Leighton violated

fiduciary responsibilities that she owed to him "by failing to

thoroughly investigate the possibility that he was an [h]eir."

The judge rejected that argument based principally on the timing

of Leighton's appointment as personal representative.    According

to him, Leighton had no fiduciary duties to Hallstrom until she

was appointed pursuant to the July 2015 decree.   See G. L.

c. 190B, § 3-701 ("The duties and powers of a personal

representative commence upon appointment").   Because the judge

viewed the July 2015 decree as simultaneously appointing

Leighton as personal representative and determining the heirs,

the judge reasoned that "at the time her fiduciary duties

commenced, the Court's determination of [h]eirs had already

become final."11

     Having concluded that Hallstrom's claim to be an heir was

precluded as a matter of law, the judge allowed Leighton's

motion to strike Hallstrom's objection to her petition for a

complete settlement of the estate.   A final decree then issued,

settling the estate in the manner Leighton had requested.




     11The judge also rejected arguments that he could and
should modify the July 2015 decree pursuant to Mass. R. Civ. P.
60 (b), 365 Mass. 828 (1974). Hallstrom has not renewed his
rule 60 (b) arguments on appeal, and we therefore have no
occasion to consider them.
                                                                       11


        Discussion.    As the judge well explained in his memorandum

of decision, the MUPC contains strict procedural constraints to

which practitioners must pay careful attention.      As relevant

here, once an order has issued that constitutes a formal

determination of the heirs of an intestate estate, then unless

that order has been appealed from or been the subject of a

timely motion to vacate, the order "is final as to all persons

with respect to all issues concerning the decedent's estate that

the court considered or might have considered incident to its

rendition relevant . . . to the determination of heirs."         G. L.

c. 190B, § 3-412.       Moreover, under the statute, a motion to

vacate a formal determination of heirs can be brought in only

limited circumstances that would not have applied here.          See

id.12    Finally, a motion to vacate must be brought within certain

deadlines, including in any event by "[t]welve months after the

entry of the order sought to be vacated."       G. L. c. 190B,




        12   As pertinent here, the MUPC provides:

        "[T]he determination of heirs of the decedent may be
        reconsidered if it is shown that [one] or more persons were
        omitted from the determination and it is also shown that
        the persons were unaware of their relationship to the
        decedent, were unaware of the death or were given no notice
        of any proceeding concerning the estate, except by
        publication."

G. L. c. 190B, § 3-412 (2).
                                                                  12


§ 3-412 (3) (iii).   Practitioners ignore such procedural land

mines at their peril.

     However, the key question before us is not whether the July

2015 decree became final (the issue on which the judge focused),

but what that decree means.   As noted, the July 2015 decree did

not purport to set forth an exclusive listing of heirs; it

simply included a checked box indicating that the heirs would be

"as stated in [Leighton's] [p]etition."   That petition

forthrightly had acknowledged that there could be heirs on

Olson's mother's side; it was just "unknown" to Leighton whether

heirs existed "and, if so, the degree of kindred and location of

such heirs."   Further, by the time Leighton's petition was

considered, Hallstrom had already come forward as a claimant and

Leighton understood him as such.   Moreover, the GAL that had

been appointed to represent unidentified heirs also recognized

that Hallstrom was a claimant (despite Hallstrom's not having

filed a formal objection),13 and reported this to the court.     In


     13As Hallstrom now acknowledges, he is not blameless in how
this all unfolded. It appears that his failure to categorize
his notice of appearance as a formal objection, see G. L.
c. 190B, § 1-401 (d), is what led the magistrate to consider the
determination of heirs as an uncontested issue on which he could
rule. See G. L. c. 190B, § 1-401 (g) (authorizing magistrate to
issue appropriate orders "[i]f a proceeding is unopposed"). See
also E.M. Moriarty, R.A. Nesi, L.A. Roberts, T.P. Jalkut, C.G.
Mehne, & E.J. Patsos, MUPC Estate Administration Procedural
Guide § 4.15.4 (2d ed. 2016) ("A magistrate has no authority to
hear a contested matter"). In hindsight, it is plain that
Hallstrom should have tailored his initial filing to highlight
                                                                 13


the GAL's view, the identity of the heirs would be resolved at a

later point in the proceedings.     In these specific

circumstances, we do not interpret the magistrate's having

checked the box on the preprinted form that the heirs would be

"as stated in the [p]etition" as constituting a formal

determination that the heirs would include only the three

individuals specifically referenced in the petition, and not

Hallstrom.     Rather, Hallstrom's kinship status was left

unresolved by the July 2015 decree and never has been

adjudicated.    Accordingly, Hallstrom was not precluded from

raising it in opposition to Leighton's petition for a final

settlement of the estate.14    Cf. Day v. Kerkorian, 61 Mass. App.



that although he was not opposing the determination of intestacy
or Leighton's appointment as personal representative, he was
lodging an objection to Leighton's petition to the extent that
it could be taken to state that he was not an heir. Even with
the current bare-bones preprinted Probate and Family Court
forms, he could have accomplished this through simple means,
e.g., the creative deployment of asterisks. We urge the Probate
and Family Court to revisit its forms to consider whether they
should provide filers more options than simply identifying that
a notice of appearance as a whole "is" or "is not" an objection,
particularly where some of the court's forms (including
petitions for formal adjudication, at issue here) allow
petitioners to make multiple requests to the court at one time.

     14Viewed from one perspective, the magistrate's checking
this box was simply an error: the magistrate should not have
signaled that the heirs were "as stated in the [p]etition" when
the petition itself did not purport to set forth an exclusive
listing of heirs, and all concerned were aware that Hallstrom
was seeking a share. We have long recognized the principle that
when a court error has created a "procedural tangle" that
unfairly threatens to preclude a party from pursuing a claim, we
                                                                  14


Ct. 804, 809 (2004), quoting Kirker v. Board of Appeals of

Raynham, 33 Mass. App. Ct. 111, 113 (1992) ("Issue preclusion is

not available where there is 'ambiguity concerning the issues,

the basis of decision, and what was deliberately left open by

the judge'").15

     One additional observation bears noting.   Because we rule

in Hallstrom's favor based on the meaning of the July 2015

decree, we need not resolve his alternative contention that

Leighton violated fiduciary duties that she owed to him.

Nevertheless, we note our disagreement with the judge's




generally rule in favor of that party "where this result is
technically possible and does not work unfair prejudice to other
parties." Krupp v. Gulf Oil Corp., 29 Mass. App. Ct. 116, 121
(1990). See id. at 121 n.6 (appellate rights not lost where
lower court's "promiscuous use of the title, 'Judgment' . . .
[had left] parties in confusion as to when an appeal is called
for to save their rights to appellate review").

     15 Notably, our interpretation of the July 2015 decree is
consistent with how the parties themselves interpreted it at the
time. As the above factual recitation makes clear, both sides
considered Hallstrom's status as an heir to remain an open
question long after the July 2015 decree entered. Even
Leighton's March 2016 letter -- the first documented occasion in
which she hinted that her position on the meaning of the July
2015 decree was evolving -- treated the question of Hallstrom's
status as an issue that still had not finally been adjudicated.
Although the document being interpreted here is a court order,
not a negotiated contract, the parties' contemporaneous
understanding of that order revealed by their actions sheds some
light on how a reasonable person would interpret its language.
Cf. T.F. v. B.L., 442 Mass. 522, 525 (2004), quoting Martino v.
First Nat'l Bank, 361 Mass. 325, 332 (1972) ("There is no surer
way to find out what parties meant, than to see what they have
done").
                                                                  15


assessment that any such fiduciary duties were so evanescent as

to vanish as soon as they were created.    After the July 2015

decree was entered -- and despite her obvious conflict of

interest -- Leighton continued to hold herself out as the

frontline adjudicator of whether Hallstrom's proof of kinship

was sufficient.   Whatever else can be said about the extent of

Leighton's fiduciary responsibilities to Hallstrom at that

point, she had a duty not to mislead him about how his claim was

to be resolved.   Moreover, even though Hallstrom may carry the

burden at trial of proving that he is entitled to a share of

Olson's estate, see Hopkins v. Hopkins, 287 Mass. 542, 544

(1934), this does not absolve Leighton of seeing that a fair

process is utilized to identify heirs.16   See Doe v. Roe, 19

Mass. App. Ct. 270, 272-273 (1985), quoting DeSautels,

petitioner, 1 Mass. App. Ct. 787, 791 (1974) ("it is a 'basic




     16Had Hallstrom pursued the more prudent course of filing a
limited objection to Leighton's original petition, see note 13,
supra, then under the terms of the MUPC, Hallstrom also shortly
thereafter should have filed an affidavit of objection laying
out the specific grounds of his objection. See G. L. c. 190B,
§ 1-401 (d), (e). In the absence of such an affidavit, Leighton
could have moved to dismiss the objection, in which case
Hallstrom could have argued that Leighton's request that heirs
be determined was premature on the ground that she had not done
any due diligence to track down heirs on the mother's side, or
that, in any event, an extension of time to submit an affidavit
of objection was proper under the particular circumstances
presented. It would be inappropriate to speculate how the judge
would have resolved such a contest.
                                                                  16


responsibility of the probate judge and of the administrator' to

identify a decedent's heirs and assure that his estate is

properly distributed among them").17

     Conclusion.   Because Hallstrom's status as an heir has

never been adjudicated, we vacate the order allowing Leighton's

motion to strike Hallstrom's objection to Leighton's petition

for order of complete settlement and the final decree settling

the estate.   We remand this case to the Probate and Family Court

for further proceedings consistent with this opinion.

                                    So ordered.




     17We recognize that the cases just cited predate the MUPC.
See St. 2008, c. 521, § 9 (enacted on January 15, 2009,
effective on March 31, 2012). However, by the express terms of
the MUPC, such case law survives except to the extent the
statute displaces it. See G. L. c. 190B, § 1-103. See
generally Kerins v. Lima, 425 Mass. 108, 110 (1997), quoting
Commercial Wharf E. Condominium Ass'n v. Waterfront Parking
Corp., 407 Mass. 123, 129 (1990), S.C., 412 Mass. 309 (1992) ("a
court 'will not presume that the Legislature intended . . . a
radical change in the common law without a clear expression of
such intent'").
