Preview
Bamstable Pr and Fam: Court
Date F 02: PA Ml
vase Numb: 22P0280E
COMMONWEALTH OF MASSACHUSETTS
Trial Court of the Commonwealth
Probate and Family Court
Barnstable, ss. Barnstable Probate and Family Court
DOCKET NO: BA22P0280EA
ESTATE OF ROBERT WILLIAM ALLARD
REPLY TO OPPOSITION TO MOTION TO BIFURCATE TRIAL
NOW COMES John Allard, by and through Counsel, and hereby replies to Nathan Allard,
Rebecca Rosenthal, and Brian Allard’s Opposition to Motion to Bifurcate Trial (“Opposition”).
I. Improper Execution
Counsel for the Opposition appear to concede the burden of proof to show proper execution
of the alleged Will and that all the formal legal requirements were met rests with the proponent
of the Will.
II. Shifting of the Burden of Proof in Undue Influence
As has been detailed in John Allard’s Motion to Bifurcate Trial (the “Motion”) and the
Opposition, the burden of proof ordinarily rests with the party challenging the Will. See, e.g.,
Tarricone v. Cummings, 340 Mass. 758, 762 (1960); Mirick v. Phelps, 297 Mass. 250, 252
(1937); Hogan v. Whittemore, 278 Mass. 573, 578 (1932). However, the burden of proof shifts
under certain circumstances, circumstances of which appear in the instant matter. See generally
Cleary v. Cleary, 427 Mass. 286, 290 (1998), Rempelakis v. Russell, 65 Mass.App.Ct. at 563,
842 N.E.2d 970, Estate of Moretti, 69 Mass. App. Ct. 642, 651 (2007). While Counsel in their
Opposition focus on the underlying merits of whether the burden of proof shifts, or
mischaracterize the Motion as being “predicated” upon any specific Court determination See
page 1 of Opposition Submitted by Rebecca Rosenthal to Motion to Bifurcate Trial, the Court
Barnstable Prob, Court
D PM
wer: B. 2 OLA
will, nevertheless, be asked to weigh the evidence while applying different and shifting burdens
of proof. The Motion and Opposition only serve to illustrate that bifurcation will help to organize
and streamline the evidence and allow the Court and the Parties to focus on a narrower set of
facts and legal principles in each phase of the trial.
III. Independent Counsel
The Opposition maintain that even if they bear the burden of proof on the issue of undue
influence, they satisfy that burden by demonstrating the decedent had the advice of independent
legal counsel. Such a reading of the relevant case law is incomplete. “Even assuming, without
deciding, that we would reduce to a single criterion the fiduciary's burden in responding to a
challenge of undue influence in a will contest, that burden was not satisfied here.“ Estate of
Moretti, 69 Mass. App. Ct. 642, 653 (2007). The Court in Estate of Moretti at 653 showed
skepticism of “a single criterion.” /d. (independent counsel) to satisfy burden of proof on the
issue of undue influence.
The decedent lacked independent counsel in the instant matter. Evidence will show that
Attorney Christopher Miner had previously represented Brian Allard in connection with
preparing Brian Allard’s Will. Attorney Christopher Miner currently represents Brian Allard in
connection with probating the alleged Will of the decedent, and Attorney Christopher Miner
represented the decedent in connection with preparing the contested purported Will currently
before this Court. “An attorney owes to a client, or a potential client, for whom the drafting of a
will is contemplated, a duty to be reasonably alert to indications that the client is incompetent or
is subject to undue influence and, where indicated, to make reasonable inquiry and a reasonable
determination in that regard. An attorney should not prepare or process a will unless the attorney
reasonably believes the testator is competent and free from undue influence. In making the
Barnstable al nd &.Fa C irt
Dati OF
Case Nur BAZ: O280EA
required determination, the attorney must have undivided loyalty to the client.” Logotheti v.
Gordon, 414 Mass. 308, 311-12 (Mass. 1993). The lawyer cannot “make reasonable inquiry” Jd.
about possible undue influence with undivided loyalty to the testator, however, if the inquiry
may disclose undue influence by a former client to whom the lawyer also owes an obligation of
confidentiality. It would be a conflict of interest for the lawyer to represent the testator in such
circumstances. See Matter of Two Attorneys, S.J.C. -BD-2003-048 (Memorandum of Decision,
March 1, 2005). Testimonial evidence will show that Attorney Christopher Miner did not ask
Robert who the members of his immediate family were; did not make a record of his basic
information or complete an intake form; did not run a conflicts check; did not prepare an
engagement agreement; and did not receive payment for the purported Will. Brian Allard told
Robert Allard to sign a Will, and upon signing a purported Will, Robert Allard gave the original
signed alleged Will to Brian Allard, who subsequently brought it back to Attorney Christopher
Miner to be probated.
In Old Colony Trust Company v. Yonge, 302 Mass. 49, 53 (1938), the Court’s finding that
a will was procured through undue influence was affirmed in part because the will was prepared
by the beneficiary’s lawyer and the deceased testator “acted without independent and
disinterested advice.” Here, Brian Allard and Robert Allard shared the same lawyer, and Brian
Allard indirectly benefited from the alleged Will through his son, Nathan Allard. See Germain v.
Girard, 72 Mass.App.Ct. 409, 414 (2008), where the Court found that where a fiduciary receives
an indirect benefit, the burden shifting rule should be applied directly to the beneficiary. Robert
Allard did not have independent counsel in the instant matter.
arnst p Fa Court
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Case Numb 22 0: 2B0EA
VI. Conclusion
Bifurcation will provide much needed structure to the core issues, where one party bears
the burden of proof to show proper execution, and another party bears the initial burden of proof
to show undue influence. The Court, however, may shift the burden of proof as to undue
influence, where, as here, the required elements to shift the burden are present.
Respectfully submitted,
John Allard,
By His Attorney,
Dated: March 8, 2023
OH Dee
Timothy F. Robertson, Esq.
BBO# 667267
T FRANK LAW, PLLC
440 Main Street
Brewster, MA 02631
T: (617) 702-2449
F: (617) 334-7972
Email: tim@tfranklaw.com
Bal le Prot ourt
2 07
umbe 02 B0EA
COMMONWEALTH OF MASSACHUSETTS
Trial Court of the Commonwealth
Probate and Family Court
Barnstable, ss. Barnstable Probate and Family Court
DOCKET NO: BA22P0280EA
ESTATE OF ROBERT WILLIAM ALLARD
CERTIFICATE OF SERVICE
I, Timothy F. Robertson, hereby certify that I served the attached copy of the foregoing attached
document(s), by electronic mail, on the following attorneys of record located at:
Brian Allard, Petitioner, through his attorney, Peter M. Allard and Jenifer L. Allard,
Christopher R. Miner, Esq. through their attorney,
8 Main St., Suite 3 Julie K. Woodward, Esq.
PO Box 1570 La Tanzi, Spaulding, and Landreth
Orleans, Massachusetts 02653 8 Cardinal Lane
chris@cmilaw.net Orleans, Massachusetts 02653
jwoodward@latanzi.com
Brian Allard, Objector, through his attorney, Rebecca Rosenthal, through her attorney,
Sara J. Kohls, Esq. Charles M. Sabatt, Esq.
Law Offices of Sara J. Kohls 540 Main St., Suite 8
411 Main St., Building 2, Unit E Hyannis, MA 02601
Yarmouth Port, Massachusetts 02675 cms@sabattlaw.com
sara@sjkohlslaw.com
Nathan Allard, through his attorney, John S. Booth, Esq., SPR
Anthony W. Bowers, Esq. 3180 Main St., PO Box 1215
The Law Office of Anthony W. Bowers Barnstable, MA 02630
9 Market Place, PO Box 207 john@boothlawpc.com
South Dennis, Massachusetts 02660
attorneybowers@gmail.com
eas! ze ——
Timothy F. Robertson, Esq.
BBO# 667267
T FRANK LAW, PLLC
Dated: March 8, 2023 440 Main Street
Brewster, MA 02631
T: (617) 702-2449
F: (617) 334-7972
Email: tim@tfranklaw.com
Preview
Bamstable Pr and Fam: Court Date F 02: PA Ml vase Numb: 22P0280E COMMONWEALTH OF MASSACHUSETTS Trial Court of the Commonwealth Probate and Family Court Barnstable, ss. Barnstable Probate and Family Court DOCKET NO: BA22P0280EA ESTATE OF ROBERT WILLIAM ALLARD REPLY TO OPPOSITION TO MOTION TO BIFURCATE TRIAL NOW COMES John Allard, by and through Counsel, and hereby replies to Nathan Allard, Rebecca Rosenthal, and Brian Allard’s Opposition to Motion to Bifurcate Trial (“Opposition”). I. Improper Execution Counsel for the Opposition appear to concede the burden of proof to show proper execution of the alleged Will and that all the formal legal requirements were met rests with the proponent of the Will. II. Shifting of the Burden of Proof in Undue Influence As has been detailed in John Allard’s Motion to Bifurcate Trial (the “Motion”) and the Opposition, the burden of proof ordinarily rests with the party challenging the Will. See, e.g., Tarricone v. Cummings, 340 Mass. 758, 762 (1960); Mirick v. Phelps, 297 Mass. 250, 252 (1937); Hogan v. Whittemore, 278 Mass. 573, 578 (1932). However, the burden of proof shifts under certain circumstances, circumstances of which appear in the instant matter. See generally Cleary v. Cleary, 427 Mass. 286, 290 (1998), Rempelakis v. Russell, 65 Mass.App.Ct. at 563, 842 N.E.2d 970, Estate of Moretti, 69 Mass. App. Ct. 642, 651 (2007). While Counsel in their Opposition focus on the underlying merits of whether the burden of proof shifts, or mischaracterize the Motion as being “predicated” upon any specific Court determination See page 1 of Opposition Submitted by Rebecca Rosenthal to Motion to Bifurcate Trial, the Court Barnstable Prob, Court D PM wer: B. 2 OLA will, nevertheless, be asked to weigh the evidence while applying different and shifting burdens of proof. The Motion and Opposition only serve to illustrate that bifurcation will help to organize and streamline the evidence and allow the Court and the Parties to focus on a narrower set of facts and legal principles in each phase of the trial. III. Independent Counsel The Opposition maintain that even if they bear the burden of proof on the issue of undue influence, they satisfy that burden by demonstrating the decedent had the advice of independent legal counsel. Such a reading of the relevant case law is incomplete. “Even assuming, without deciding, that we would reduce to a single criterion the fiduciary's burden in responding to a challenge of undue influence in a will contest, that burden was not satisfied here.“ Estate of Moretti, 69 Mass. App. Ct. 642, 653 (2007). The Court in Estate of Moretti at 653 showed skepticism of “a single criterion.” /d. (independent counsel) to satisfy burden of proof on the issue of undue influence. The decedent lacked independent counsel in the instant matter. Evidence will show that Attorney Christopher Miner had previously represented Brian Allard in connection with preparing Brian Allard’s Will. Attorney Christopher Miner currently represents Brian Allard in connection with probating the alleged Will of the decedent, and Attorney Christopher Miner represented the decedent in connection with preparing the contested purported Will currently before this Court. “An attorney owes to a client, or a potential client, for whom the drafting of a will is contemplated, a duty to be reasonably alert to indications that the client is incompetent or is subject to undue influence and, where indicated, to make reasonable inquiry and a reasonable determination in that regard. An attorney should not prepare or process a will unless the attorney reasonably believes the testator is competent and free from undue influence. In making the Barnstable al nd &.Fa C irt Dati OF Case Nur BAZ: O280EA required determination, the attorney must have undivided loyalty to the client.” Logotheti v. Gordon, 414 Mass. 308, 311-12 (Mass. 1993). The lawyer cannot “make reasonable inquiry” Jd. about possible undue influence with undivided loyalty to the testator, however, if the inquiry may disclose undue influence by a former client to whom the lawyer also owes an obligation of confidentiality. It would be a conflict of interest for the lawyer to represent the testator in such circumstances. See Matter of Two Attorneys, S.J.C. -BD-2003-048 (Memorandum of Decision, March 1, 2005). Testimonial evidence will show that Attorney Christopher Miner did not ask Robert who the members of his immediate family were; did not make a record of his basic information or complete an intake form; did not run a conflicts check; did not prepare an engagement agreement; and did not receive payment for the purported Will. Brian Allard told Robert Allard to sign a Will, and upon signing a purported Will, Robert Allard gave the original signed alleged Will to Brian Allard, who subsequently brought it back to Attorney Christopher Miner to be probated. In Old Colony Trust Company v. Yonge, 302 Mass. 49, 53 (1938), the Court’s finding that a will was procured through undue influence was affirmed in part because the will was prepared by the beneficiary’s lawyer and the deceased testator “acted without independent and disinterested advice.” Here, Brian Allard and Robert Allard shared the same lawyer, and Brian Allard indirectly benefited from the alleged Will through his son, Nathan Allard. See Germain v. Girard, 72 Mass.App.Ct. 409, 414 (2008), where the Court found that where a fiduciary receives an indirect benefit, the burden shifting rule should be applied directly to the beneficiary. Robert Allard did not have independent counsel in the instant matter. arnst p Fa Court Mi Case Numb 22 0: 2B0EA VI. Conclusion Bifurcation will provide much needed structure to the core issues, where one party bears the burden of proof to show proper execution, and another party bears the initial burden of proof to show undue influence. The Court, however, may shift the burden of proof as to undue influence, where, as here, the required elements to shift the burden are present. Respectfully submitted, John Allard, By His Attorney, Dated: March 8, 2023 OH Dee Timothy F. Robertson, Esq. BBO# 667267 T FRANK LAW, PLLC 440 Main Street Brewster, MA 02631 T: (617) 702-2449 F: (617) 334-7972 Email: tim@tfranklaw.com Bal le Prot ourt 2 07 umbe 02 B0EA COMMONWEALTH OF MASSACHUSETTS Trial Court of the Commonwealth Probate and Family Court Barnstable, ss. Barnstable Probate and Family Court DOCKET NO: BA22P0280EA ESTATE OF ROBERT WILLIAM ALLARD CERTIFICATE OF SERVICE I, Timothy F. Robertson, hereby certify that I served the attached copy of the foregoing attached document(s), by electronic mail, on the following attorneys of record located at: Brian Allard, Petitioner, through his attorney, Peter M. Allard and Jenifer L. Allard, Christopher R. Miner, Esq. through their attorney, 8 Main St., Suite 3 Julie K. Woodward, Esq. PO Box 1570 La Tanzi, Spaulding, and Landreth Orleans, Massachusetts 02653 8 Cardinal Lane chris@cmilaw.net Orleans, Massachusetts 02653 jwoodward@latanzi.com Brian Allard, Objector, through his attorney, Rebecca Rosenthal, through her attorney, Sara J. Kohls, Esq. Charles M. Sabatt, Esq. Law Offices of Sara J. Kohls 540 Main St., Suite 8 411 Main St., Building 2, Unit E Hyannis, MA 02601 Yarmouth Port, Massachusetts 02675 cms@sabattlaw.com sara@sjkohlslaw.com Nathan Allard, through his attorney, John S. Booth, Esq., SPR Anthony W. Bowers, Esq. 3180 Main St., PO Box 1215 The Law Office of Anthony W. Bowers Barnstable, MA 02630 9 Market Place, PO Box 207 john@boothlawpc.com South Dennis, Massachusetts 02660 attorneybowers@gmail.com eas! ze —— Timothy F. Robertson, Esq. BBO# 667267 T FRANK LAW, PLLC Dated: March 8, 2023 440 Main Street Brewster, MA 02631 T: (617) 702-2449 F: (617) 334-7972 Email: tim@tfranklaw.com