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Application of Anti-SLAPP to Will Contests

The average number of years that a person may expect to live has substantially increased over the past 25 years. Also, the life expectancy of a person now is 25 years longer than it was 100 years ago. Decreased infant mortality, improved living conditions, reductions in poverty levels and gains in medical treatment have resulted in increased longevity for humankind, benefiting a broad spectrum of  people of all race, gender and ethnicity. https://www.brookings.edu/research/the-changing-landscape-of-american-life-expectancy/.

commerce-acts-books-477966-mReviewing records starting with the 20th century discloses that the world is seeing fewer deaths at older and older ages. The National Institute on Aging report puts this in stark terms: “The 85-and-over population is projected to increase 351 percent between 2010 and 2050, compared to a 188 percent increase for the population aged 65 or older and a 22 percent increase for the population under age 65.”

According to Thomas Perls, a geriatrician at Boston Medical Center and professor at Boston University School of Medicine, “Getting to about 110 is really approaching the limit of the human lifespan,” and the oldest documented human life is 120 years. http://www.businessinsider.com/how-has-life-expectancy-changed-throughout-history-2015-6

While longevity of life is increasing and relies on one’s physical condition,  the numbers do not address mental issues and age related dementia.  As people age and live longer, their mental acuity may decrease and the ability to understand the consequences of decisions or actions may diminish.

Estate planning by the elderly in the late stages of life, such as wills, trusts, medical directives and gifts to family and friends, may give rise to questions of competence.  Upon the demise of an elderly person who has executed estate documents late in life, family or friends may question if the requisite intent of the gift giver was present or if they should challenge the validity of any such document or action.

An estate or will challenge should not be undertaken lightly. Please see our blog from April, 2017 on “Testamentary Capacity”. An unsuccessful challenge may result in the Court imposing sanctions or legal fees.  In one recent Massachusetts decision, an elderly decedent had suffered cardiac arrest and then changed her will. The beneficiary under the old will, her son, challenged the new will in the probate court. The challenge was unsuccessful.  The beneficiary under the new will then sued the son and his attorney in superior court, alleging abuse of process.

Both defendants moved to dismiss the superior court case under the Massachusetts anti-SLAPP statute, G.L.c. 231, § 59H, arguing that their claims arose out of protected petitioning activity. The Massachusetts anti-SLAPP statute, G.L.c. 231, § 59H, was enacted to protect parties from” ‘meritless suits’ that use litigation to ‘intimidate opponents’ exercise of rights of petitioning and speech.” Vittands v. Sudduth, 49 Mass.App.Ct. 401, 413, 730 N.E.2d 325 (2000). It “was designed to immunize parties from claims based on their petitioning activities by allowing a party to file a special motion to dismiss.” Id.  The anti-SLAPP statute defines petitioning activity to include, “any written or oral statement made before or submitted to a . . . judicial body.” G.L.c. 231, § 59H.

A party seeking dismissal pursuant to the anti-SLAPP statute must “demonstrate, through pleadings and affidavits, that the claims against it are ‘based on the petitioning activities alone and have no substantial basis other than or in addition to the petitioning activities.'” Little v. Summer, MICV2016-2492-H quoting Cadle Co. v. Schlichtmann, 448 Mass. 242, 249, 859 N.E.2d 858 (2007).

In ruling on the motions to dismiss under anti-SLAPP, the judge concluded that there were affidavits from each side as to the competency of the decedent at the date she made her new will and the son and his attorney had met their burden by showing that the underlying petitioning activity by the moving party (plaintiff in this action) was devoid of any reasonable factual support or arguable basis in law.” Benoit v. Frederickson, 454 Mass. 148.  The defendants’ motions to dismiss were allowed. Little v. Summer, MICV2016-2492-H.

The Little case illustrates how complex and protracted will contests can be.  The possible application of the anti-SLAPP statute in Massachusetts is one more complex issue to consider before engaging in a will contest.