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Leighton v. Hallstrom

Appeals Court of Massachusetts, Plymouth

November 7, 2018

DOROTHY A. LEIGHTON, personal representative, [1]

          Heard: September 7, 2018.

         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.

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

          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 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.


         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 personal representative[3] 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 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 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 ...

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