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COMMONWEALTH OF MASSACHUSETTS
Barnstable, ss. Family and Probate Court
Docket No. BA22P0280EA
IN RE:
ESTATE OF ROBERT WILLIAM ALLARD
OPPOSITION TO MOTION TO BIFURCATE TRIAL
NOW COMES Brian Allard, in his capacity as Petitioner and Objector, and hereby
opposes John Allard’s Motion to Bifurcate the Trial. For the following reasons, Brian Allard
respectfully requests that John Allard’s motion be denied.
The decision regarding whether to bifurcate a trial rests solely within the discretion of the
trial judge. Dobos y. Driscoll, 404 Mass. 634, 644-645 (1989). John Allard has alleged two
grounds for challenging Robert Allard’s will: proper execution and undue influence. The two
grounds are not necessarily dispositive of one another. Accordingly, judicial economy is best
served by keeping trial on the matter intact.
As stated above, John Allard has alleged two basis for challenging the will. The two
matters are linked to one another, as the drafting attorney, Attorney Christopher Miner, would
provide testimony regarding both the execution of the will, the circumstances surrounding the
creation and execution of the will, his observations of Robert Allard, and any discussion that he
may have had with Robert Allard. John Allard has accused Brian Allard of influencing Robert
Allard, an accusation that can be rebutted by independent counsel. See Rempelakis v. Russell, 65
Mass. App. Ct. 557, 659 (2006). Attorney Miner will also offer testimony regarding Brian’s lack
of involvement in Robert’s estate planning process. See pg. 53-54, In. 24-2 of Christopher
Miner, Esq.’s Deposition, Attached to Nathan Allard’s Opposition.
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Furthermore, the alleged “withdrawal” of the witness’s signature is not necessarily fatal
to the Will; it would arguably mean that the will was no longer self-proving. See Estate of Lucy
Nevers, 100 Mass. App. Ct. 861, 870-871 (2022). Accordingly, this would mean that witness
testimony would be required in order to prove the validity of the will, not that the will would not
be admitted into probate. Jd.
As further basis for his Motion to Bifurcate, John Allard incorrectly cites that the Court
“must” shift the burden of proof regarding undue influence, as he alleges that Brian was in a
fiduciary relationship with Robert. This is a misstatement of the law; the Court must make
certain findings before ruling that the burden shifts in a fiduciary situation. See Cleary v. Cleary,
427 Mass. 286, 290 (1998); Germain v. Girard, 72 Mass. App. Ct. 409, 413 (2008). Recently, in
Estate of John P. Urban, 102 Mass. App. Ct. 284 (2023), the Appeals Court ruled that the burden
does not shift when the fiduciary does not intrude on the attorney-client relationship. Attorney
Miner clearly stated that he only met with Robert Allard and had no interaction with Brian Allard
about Robert’s estate planning. See pg. 53-54, In. 24-2 of Christopher Miner, Esq.’s Deposition,
Attached to Nathan Allard’s Opposition. Overall, this is not a basis to bifurcate trial on undue
influence from trial on execution.
Accordingly, as stated in Nathan Allard’s opposition and Rebecca Rosenthal’s opposition
to this same motion, the issues regarding whether the Will was properly executed and whether
the decedent was subject to undue influence go to the core issue of whether the will should be
admitted to probate. One trial on both matters is the most efficient use of judicial resources and
Brian Allard respectfully requests that this Court deny John Allard’s Motion.
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Brian Allard, Petitioner,
By his attorney:
/s/ Sara J. Kohls
Sara J. Kohls, Esq. (687930)
Law Offices of Sara J. Kohls
411 Main Street, Bldg. 1, Unit A
Yarmouth Port, MA 02675
(508) 470-8050
(508) 470-8056
Date: March 7, 2023 sar: oblslaw.com
CERTIFICATE OF SERVICE
The undersigned states that a true and accurate copy of the foregoing was sent to the following
via electronic mail:
Timothy Robertson, Esq., attorney for Anthony Bowers, Esq., attorney for Nathan Allard,
John Allard, ti im: )tfranklaw.com
ianiaW.c! attorneybowers@gmail.com
Charles M. Sabatt, Esq., attorney for Julie Woodward, Esq., attorney for Jennifer Allard
Rebecca Rosenthal, cms(@sabattlaw.com and Peter Allard, jwoodward@latanzi.com
John S. Booth, Special Personal
Representative, john@boothlawpe.com
Date: March 7, 2023 /s/ Sara J. Kohls
Sara J. Kohls
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Barr Court 3 PM O02 DEA COMMONWEALTH OF MASSACHUSETTS Barnstable, ss. Family and Probate Court Docket No. BA22P0280EA IN RE: ESTATE OF ROBERT WILLIAM ALLARD OPPOSITION TO MOTION TO BIFURCATE TRIAL NOW COMES Brian Allard, in his capacity as Petitioner and Objector, and hereby opposes John Allard’s Motion to Bifurcate the Trial. For the following reasons, Brian Allard respectfully requests that John Allard’s motion be denied. The decision regarding whether to bifurcate a trial rests solely within the discretion of the trial judge. Dobos y. Driscoll, 404 Mass. 634, 644-645 (1989). John Allard has alleged two grounds for challenging Robert Allard’s will: proper execution and undue influence. The two grounds are not necessarily dispositive of one another. Accordingly, judicial economy is best served by keeping trial on the matter intact. As stated above, John Allard has alleged two basis for challenging the will. The two matters are linked to one another, as the drafting attorney, Attorney Christopher Miner, would provide testimony regarding both the execution of the will, the circumstances surrounding the creation and execution of the will, his observations of Robert Allard, and any discussion that he may have had with Robert Allard. John Allard has accused Brian Allard of influencing Robert Allard, an accusation that can be rebutted by independent counsel. See Rempelakis v. Russell, 65 Mass. App. Ct. 557, 659 (2006). Attorney Miner will also offer testimony regarding Brian’s lack of involvement in Robert’s estate planning process. See pg. 53-54, In. 24-2 of Christopher Miner, Esq.’s Deposition, Attached to Nathan Allard’s Opposition. Barr Court 3 PM O02 DEA Furthermore, the alleged “withdrawal” of the witness’s signature is not necessarily fatal to the Will; it would arguably mean that the will was no longer self-proving. See Estate of Lucy Nevers, 100 Mass. App. Ct. 861, 870-871 (2022). Accordingly, this would mean that witness testimony would be required in order to prove the validity of the will, not that the will would not be admitted into probate. Jd. As further basis for his Motion to Bifurcate, John Allard incorrectly cites that the Court “must” shift the burden of proof regarding undue influence, as he alleges that Brian was in a fiduciary relationship with Robert. This is a misstatement of the law; the Court must make certain findings before ruling that the burden shifts in a fiduciary situation. See Cleary v. Cleary, 427 Mass. 286, 290 (1998); Germain v. Girard, 72 Mass. App. Ct. 409, 413 (2008). Recently, in Estate of John P. Urban, 102 Mass. App. Ct. 284 (2023), the Appeals Court ruled that the burden does not shift when the fiduciary does not intrude on the attorney-client relationship. Attorney Miner clearly stated that he only met with Robert Allard and had no interaction with Brian Allard about Robert’s estate planning. See pg. 53-54, In. 24-2 of Christopher Miner, Esq.’s Deposition, Attached to Nathan Allard’s Opposition. Overall, this is not a basis to bifurcate trial on undue influence from trial on execution. Accordingly, as stated in Nathan Allard’s opposition and Rebecca Rosenthal’s opposition to this same motion, the issues regarding whether the Will was properly executed and whether the decedent was subject to undue influence go to the core issue of whether the will should be admitted to probate. One trial on both matters is the most efficient use of judicial resources and Brian Allard respectfully requests that this Court deny John Allard’s Motion. Barr Court 3 PM O02 DEA Brian Allard, Petitioner, By his attorney: /s/ Sara J. Kohls Sara J. Kohls, Esq. (687930) Law Offices of Sara J. Kohls 411 Main Street, Bldg. 1, Unit A Yarmouth Port, MA 02675 (508) 470-8050 (508) 470-8056 Date: March 7, 2023 sar: oblslaw.com CERTIFICATE OF SERVICE The undersigned states that a true and accurate copy of the foregoing was sent to the following via electronic mail: Timothy Robertson, Esq., attorney for Anthony Bowers, Esq., attorney for Nathan Allard, John Allard, ti im: )tfranklaw.com ianiaW.c! attorneybowers@gmail.com Charles M. Sabatt, Esq., attorney for Julie Woodward, Esq., attorney for Jennifer Allard Rebecca Rosenthal, cms(@sabattlaw.com and Peter Allard, jwoodward@latanzi.com John S. Booth, Special Personal Representative, john@boothlawpe.com Date: March 7, 2023 /s/ Sara J. Kohls Sara J. Kohls