In the Matter of the Estate of Bruce F. Miller.

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

22-P-901

IN THE MATTER OF THE ESTATE OF BRUCE F. MILLER.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Misop Baynun appeals from a decree and order of formal

probate, arguing that the judge erred in allowing the motion by

the petitioners to (1) strike Baynun's three notices of

appearance and objection dated January 27, 2020, February 7,

2020, and August 10, 2020, and (2) appoint the petitioners as

personal representatives. 1 We affirm.

Baynun's father, Bruce Miller, died on November 28, 2019.

Following Miller's death, a copy of his will dated January 24,

2006, was found among his personal effects. The will appointed

Miller's two nephews, Bruce Hiltunen and Robert Hiltunen (the

petitioners), as executors, and left Miller's estate to his two

sons as follows:

"1. I give all such property to my children, Jeffrey
Martin Miller and Scott Douglas Miller a.k.a. Misop Baynum

1 Although Baynun states in his brief that his appeal is joined
by his mother, Sandra Miller, Miller did not file a notice of
appeal and is not a party to this appeal.
[sic], in equal shares, however all such property shall be
held in TRUST, in accordance with the provisions herein.

"A. It is my desire to provide for and/or assist in my
children's retirement, and hereby appoint my nephews, Bruce
Hiltunen and Robert Hiltunen, JOINTLY as trustees. Said
TRUSTEES shall hold, manage, invest, reinvest, administer,
and eventually terminate and distribute the proceeds in
accordance with my wishes as stated above. The TRUSTEES
shall be paid from the trust $200.00 (Two Hundred Dollars)
each, per year.

"B. Distributions under the TRUST shall be made to my
children, equally, beginning on March 8, 2023 and shall be
made at a rate of 10% (Ten Percent) per annum based upon
the total assets held in trust."

On January 9, 2020, the petitioners filed a petition to

admit the will to formal probate and for appointment as personal

representatives of the estate. The petitioners also sought

authority to conduct a search of Miller's safe deposit box to

locate the original will. On January 27, 2020, Baynun filed a

motion to have himself appointed special personal representative

for purposes of accessing Miller's safe deposit box to search

for an original will.

Also on January 27, 2020, Baynun filed a notice of

appearance and objection, together with an affidavit asserting

that the copy of the will found among Miller's personal effects

was an "invalid will." 2 More specifically, Baynun claimed that

the copy of the will was invalid because (1) it was not an

original; (2) the witnesses' attestation clause was not written

2 This was not docketed by the Register until February 5, 2020.

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in the first person; (3) it was "fraudulent" because "will" was

misspelled as "wil1" in the attestation; and (4) there was a

double space in the attestation clause. Baynun also claimed

that although Miller "was very intelligent and often very

sociably pleasant, he was regarded to not be of sound mind as

his depressive paranoia affected his judgment severely, possibly

up until the last three weeks of his life, when it is believed

his eyes were open[]ed."

Publication pursuant to the citation on petition for formal

adjudication was made on January 30, 2020, in the Quincy Sun,

and was mailed on January 22, 2020, to (among others) Miller's

two sons. The return date on the citation was February 12,

2020. A judge of the Probate and Family Court appointed one of

Miller's nephews, Robert Hiltunen, as special personal

representative with authority limited to conducting a search of

Miller's safe deposit box to search for the original will, in

the presence of his attorney and Miller's two sons. That search

located the original will, which was the same as the copy

previously filed with the court. The original will was filed

with the court on February 13, 2020.

On February 7, 2020, Baynun filed another notice of

appearance and objection, identical to his previous filing. 3

3 This second appearance and objection was docketed on February
11, 2020.

3
Thereafter, on August 10, 2020, Baynun filed a third notice of

appearance and objection. 4 The third notice of appearance and

objection was untimely because it was filed more than thirty

days after the return date. See G. L. c. 190B, § 1-401 (e).

On April 23, 2020, the petitioners moved to strike Baynun's

notices of appearance and objection. After hearing, the motion

was allowed on August 11, 2020, and the petitioners were

appointed as personal representatives of the estate. It is

these rulings that are before us now.

Baynun makes several arguments on appeal. First, he argues

that his right to religious freedom is infringed by appointment

of executors who may not hold his same religious beliefs or

invest the estate's assets in a way that is consistent with his

religious beliefs. Second, he argues that the attestation

provisions of the will did not sufficiently track the language

for self-proved wills contained in G. L. c. 192, § 2, as in

effect prior to St. 2008, c. 521, § 12, nor was the will

executed under seal as required under that statute. Third,

Baynun argues his father lacked testamentary capacity. Fourth,

Baynun argues that his father was under undue influence by the

petitioners, as demonstrated by deviation from the requirements

of G. L. c. 192, § 2. Fifth, Baynun argues that the petitioners

4 This was docketed on August 17, 2020.

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have mismanaged the estate by not timely delivering title to an

automobile, by not providing a full accounting, and by not

disclosing to him before his father's death that they were named

as executors in the will. Finally, Baynun argues that the judge

should have exercised "authority in this case to encourage the

development of maximum self-reliance and independence of the

[d]ecedent's two sons who are also beneficiaries."

We begin by noting that many of Baynun's arguments on

appeal were not raised in either of his two timely notices of

appearance and objection. We do not consider any issue raised

for the first time on appeal, as any such issues have been

waived. See Carey v. New England Organ Bank, 446 Mass. 270, 285

(2006) ("issue not raised or argued below may not be argued for

the first time on appeal" [citation omitted]). Nor do we

consider any issue raised for the first time in Baynun's third

notice of appearance and objection, since it was properly struck

as untimely. With these caveats, we turn to Baynun's objections

as presented in his first two notices of appearance and

objection, which we review de novo. See Matter of the Estate of

Nevers, 100 Mass. App. Ct. 861, 869 (2022).

First, Baynun objected that the copy of the will found

among Miller's personal effects was not the original and

therefore should not be admitted to probate. As the judge

correctly noted, this objection was mooted by the discovery of

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the original will in Miller's safe deposit box and its

subsequent filing with the court.

Second, Baynun objected to the will as "invalid" or

"fraudulent" on the grounds that the witnesses' attestation

clause was not written in the first person, the word "will" was

spelled "wil1" in the attestation, and there was a double space

in the attestation clause. Together, Baynun argues that these

irregularities mean that the will did not satisfy G. L. c. 192,

§ 2, in effect in 2006 when the will was executed. 5 To begin

with, we note that Baynun conflates the concepts of the validity

of a will with the question whether the will is self-proved. A

will may be valid even if not self-proved. Indeed, to be

properly executed in 2006, a will needed only to meet the

requirement of G. L. c. 191, § 1, as in effect prior to St.

2008, c. 521, § 10, that it be signed before two competent

attesting and subscribing witnesses. 6 Baynun did not, and does

not, allege that the requirement was not met.

5 Baynun did not cite to G. L. c. 192, § 2, below, but pointed
instead to the requirements for self-proved wills contained in
G. L. c. 190B, § 2-504, which was not enacted until 2008 as part
of the Massachusetts Uniform Probate Code.

6 The statute provided, "Every person eighteen years of age or
older and of sound mind may by his last will in writing, signed
by him or by a person in his presence and by his express
direction, and attested and subscribed in his presence by two or
more competent witnesses, dispose of his property, real and
personal, except an estate tail, and except as is provided in
this chapter and in chapters one hundred and eighty-eight and

6
In any event, none of the three supposed irregularities

raised by Baynun has any merit. As to the use of the third

person in the attestation, we note that the attestation language

of the will tracks in all pertinent respects that contained in

G. L. c. 192, § 2, which, as the statute itself stated, needed

only be "substantially" tracked. As to the presence of an extra

space and a mistyped letter "l," we need note only that neither

rises to the level of stating a ground for contesting a will

offered for probate. See Matter of the Estate of Nevers, 100

Mass. App. Ct. at 868 ("In ruling on a motion to strike an

affidavit of objections, the motion judge must take the sworn

assertions made in the affidavits of objection as true and

determine whether they aver 'allegations, in verified form, of

specific subsidiary facts that, if proved by a preponderance of

the evidence, state grounds for contesting the will offered for

probate'" [citation omitted]).

Finally, Baynun's naked assertion that Miller suffered from

depressive paranoia was not sufficient to raise a question that

Miller lacked testamentary capacity at the time he executed his

will. See Haddad v. Haddad, 99 Mass. App. Ct. 59, 68-69 (2021)

(elements of testamentary capacity). There was nothing to

indicate that Miller did not understand the will or that he did

one hundred and eighty-nine and in section one of chapter two
hundred and nine."

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not know the natural objects of his bounty. Indeed, the will

itself demonstrates the contrary in that Miller left his estate

to his two sons equally.

For these reasons, we affirm the August 11, 2020, decree

and order of formal probate allowing the petitioners' motion to

strike Baynun's notices of appearance and objection and to

appoint them as personal representatives of Miller's estate. In

addition, we allow the petitioners' request for attorney's fees

and costs on appeal. In accordance with the procedure specified

in Fabre v. Walton, 441 Mass. 9, 10-11 (2004), the petitioners

may, within fourteen days of the issuance of the rescript of

this decision, submit an application for appellate attorney's

fees and costs with the appropriate supporting materials.

Baynun shall have fourteen days thereafter to respond.

So ordered.

By the Court (Wolohojian,
Shin & Ditkoff, JJ. 7),

Clerk

Entered: October 19, 2023.

7 The panelists are listed in order of seniority.

8