In Hernon v. Hernon, Case No. 08-P-0899 (App. Ct. June 25, 2009), the Appeals Court affirmed the Probate Court's finding that the testator's last will and testament, which he executed two months before he died, was the product of undue influence. The Appeals Court held that there was ample evidentiary support to meet all four elements of an undue influence claim -- namely, "that an (1) unnatural disposition has been made (2) by a person susceptible to undue influence to the advantage of someone (3) with an opportunity to exercise undue influence and (4) who in fact used that opportunity to procure the contested disposition through improper means."

More interestingly, the Appeals Court addressed the first-impression question of whether an unasserted will contest survives death in Massachusetts. The contestant filed the will contest in her capacity as the administratrix of the estate of her father (the testator's brother), who died approximately five weeks after the testator's will was submitted to probate, but without having contested the will himself. The proponent of the will argued that the brother's right to contest the will died with him. The administratrix argued that a will contest, even an unasserted one, is a property right that descends to the party's estate upon death.

The Appeals Court agreed with the administratrix, explaining that the SJC has already held that an asserted will contest is in the nature of a property right that survives death. In reaching this holding, the SJC relied on a California decision which made no distinction between an asserted and unasserted will contest. Given as much, the Appeals Court took the "logical step" of concluding that an unasserted will contest also survives death in Massachusetts, holding that the brother's right to contest the testator's will, a property right which vested in the brother upon the testator's death, survived the brother's subsequent death, such that the administratrix of the brother's estate could assert the claim on behalf of the brother's estate within the statutory period.