In the Matter of the Estate of Pauline S. Cassidy.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

23-P-1437

IN THE MATTER OF THE ESTATE OF PAULINE S. CASSIDY.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Bank of America, N.A. (bank), which was nominated by

Pauline S. Cassidy (decedent) to serve as the personal

representative of her estate, filed a petition for order of

complete settlement of the estate, a first and final account,

and an inventory of the of personal representative in the

Probate and Family Court. John O'Reilly, the decedent's nephew,

filed an affidavit of objections. The bank moved for summary

judgment, and following a hearing, a judge of the Probate and

Family Court granted the bank's motion. O'Reilly appeals. We

affirm.

Background. In January 2018, the decedent executed a last

will and testament, devising all of her property to the Pauline

S. Cassidy 2018 Trust, which was executed simultaneously with

her will. The will did not name O'Reilly.
The decedent died on May 22, 2019. She had no children,

surviving parents, or siblings. O'Reilly is the decedent's sole

surviving heir at law. On September 26, 2019, the bank filed a

petition for formal probate seeking to probate the will and to

appoint the bank as personal representative of the decedent's

estate. On October 4, 2019, O'Reilly filed an objection to the

probate of the will and the appointment of the bank as the

personal representative.

In May 2020, O'Reilly commenced a lawsuit in the Probate

and Family Court seeking to invalidate the decedent's trust.

Ultimately, the bank and O'Reilly reached an agreement in that

case in April 2021, which resulted in a settlement agreement.

The settlement agreement included a detailed provision through

which O'Reilly released the bank from any and all claims related

to the decedent and her estate and trust. 1

In September 2021, in accordance with the settlement

agreement, O'Reilly and the bank filed a stipulation for

withdrawal of appearance and objections. O'Reilly withdrew his

objection to the probating of the will and the appointment of

the bank as personal representative of the estate.

1 The settlement agreement was impounded by a Probate and
Family Court judge and for this reason we do not quote the
language of the release, which in any event is well known to the
parties.

2
On January 27, 2023, the bank filed the petition for order

of complete settlement, the first and final account, and the

inventory of the personal representative. In his affidavit of

objections, O'Reilly requested that the judge require the

production of the estate's financial statements from the past

five years. 2 The bank filed a motion for summary judgment,

contending that O'Reilly's claims were encompassed by the

settlement agreement.

On August 22, 2023, when O'Reilly did not attend a hearing

on a separate motion, the judge 3 called him, informing him that

the bank's motion for summary judgment would be heard on

September 19, 2023, and confirming that three weeks would be

enough time for O'Reilly to serve an opposition.

The following day, August 23, 2023, the bank served its

motion for summary judgment and related materials on O'Reilly

via first class mail. Since O'Reilly did not serve an

2 O'Reilly believed the decedent was a millionaire and that
her estate was worth upwards of $4 million. However, in May
2023, when O'Reilly received the petition for complete
settlement stating that the inventory value of the decedent's
investment account was one dollar, he believed that the
settlement agreement had been breached. Consequently, he
requested the financial statements.

3 The judge in the unrelated motion hearing was the same
judge as in the matter at issue.

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opposition on the bank prior to September 13, 2023, 4 the bank

filed its summary judgment materials, along with an affidavit of

compliance and receipt of no opposition pursuant to Rule 27C of

the Supplemental Rules of the Probate and Family Court (2012),

on September 18, 2023. O'Reilly appeared at the summary

judgment hearing on September 19, 2023, and filed a memorandum

in opposition.

On September 28, 2023, the judge granted the bank's motion

for summary judgment, reasoning that O'Reilly's opposition was

untimely and that the assertions in his affidavit of objections

fell within the scope of the enforceable 2021 settlement

agreement. This appeal followed.

Discussion. Summary judgment is appropriate if, "viewing

the evidence in the light most favorable to the nonmoving party,

all material facts have been established and the moving party is

entitled to judgment as a matter of law." Augat, Inc. v.

Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991). See Mass. R.

Civ. P. 56 (c), as amended, 436 Mass. 1404 (2002). "If the

moving party establishes the absence of a triable issue, the

party opposing the motion must respond and allege specific facts

4 In accordance with Rule 27C(b)(2) of the Supplemental
Rules of the Probate Court, an opposition to the motion for
summary judgment shall be served within twenty-one days after
service of the motion. Here, twenty-one days from August 23,
2023, would have been September 13, 2023.

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which would establish the existence of a genuine of material

fact in order to defeat a motion for summary judgment."

Pederson v. Time, Inc., 404 Mass. 14, 17 (1989). Our review of

a judge's grant of summary judgment is de novo. See Kiribati

Seafood Co., LLC v. Dechert LLP, 478 Mass. 111, 116 (2017).

On appeal, O'Reilly claims that the judge erred by granting

summary judgment in the bank's favor, asserting that there are

genuine issues of material fact in dispute. Specifically,

O'Reilly asserts that the judge did not consider whether the

settlement agreement between the bank and O'Reilly had been

breached. 5 In his affidavit of objections, O'Reilly's main

contention is that a breach of the settlement agreement occurred

because the bank listed the decedent's stock amount as one

dollar when he believed it had a much larger value.

"A settlement agreement is a contract and its

enforceability is determined by applying general contract law."

Duff v. McKay, 89 Mass. App. Ct. 538, 541 (2016), quoting

Sparrow v. Demonico, 461 Mass. 322, 327 (2012). "An enforceable

agreement requires (1) terms sufficiently complete and definite,

5 O'Reilly also asserts that the judge erred by not
accepting his September 19, 2023 memorandum in opposition to the
bank's motion for summary judgment. Although the judge would
have been well within her discretion to completely disregard
O'Reilly's assertions because of the late filing, see Rule
27C(b)(2) of the Supplemental Rules of the Probate Court, she
seems to have considered his assertions. Thus, we do as well.

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and (2) a present intent of the parties at the time of formation

to be bound by those terms." Duff, supra at 543, quoting Targus

Group Int'l, Inc. v. Sherman, 76 Mass. App. Ct. 421, 428 (2010).

"A party to a contract generally is relieved of his obligations

under that contract only when the other party has committed a

material breach, that is, a breach of an essential and inducing

feature of the contract" (quotations and citations omitted).

Duff, supra at 547.

Turning to O'Reilly's assertion that the bank breached the

settlement agreement, the judge correctly concluded that

O'Reilly released the bank from any claims related to matters

regarding the petition and the decedent's estate when he signed

the settlement agreement. In O'Reilly's affidavit of objections

and opposition, he made broad allegations concerning why he

thought the decedent's investment account was worth

significantly more than one dollar. For example, O'Reilly

relied on conversations with the decedent, who told him that she

was a "rich woman" and a millionaire. He also asserted that the

decedent claimed her account "was in excess of [four] million

dollars." In other words, his allegations fell within the

topics of the decedent and her estate -- topics that O'Reilly

explicitly released the bank from in the settlement agreement.

As such, O'Reilly's assertions made in his affidavit of

objections and opposition to the motion for summary judgment all

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fell within the scope of the settlement agreement and have no

bearing on whether the settlement agreement had been breached in

any way.

The motion for summary judgment was properly allowed.

Decree and order for complete
settlement affirmed.

By the Court (Rubin,
D'Angelo & Smyth, JJ. 6),

Clerk

Entered: February 24, 2025.

6 The panelists are listed in order of seniority.

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