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This month the Massachusetts Appeals Court heard the case of a Native American woman, Pamela Glavin, whose partner of 35 years died leaving only a hand-written, unwitnessed last will and testament.

The will left a life-estate interest in the decedent’s home on Martha’s Vineyard to Ms. Glavin. (A life estate interest gives ownership rights to a person for the duration of his or life.) She had lived at the home for four years. During that time she paid the real estate taxes and maintained the property. The decedent’s family (which consisted of only two siblings) knew that Ms. Glavin was residing at the home and paying all bills associated with it.

When she consulted an attorney about probating the estate, she was told that the will, which had been executed in Arizona, was invalid because it lacked witnesses. She therefore probated the estate without the will. Because no will was filed and because she had never married the decedent, the probate court decreed that the decedent’s rightful heirs were his two siblings.

Shortly after the probate proceedings, the siblings sought to evict Ms. Glavin from the house. She hired an attorney who filed a petition in probate court seeking to reopen the estate and to submit the decedent’s will for court consideration.

The petition claimed, among other things, that the will was valid under Arizona law where it was executed and that Ms. Glavin was married to the decedent according to the law of their tribe.

The probate court refused to reopen the estate because, according to the probate judge, Ms. Glavin failed to show any statutorily defined justification for doing so. Her attorney appealed the decision.

The Appeals Court agreed the with probate judge’s decision not to reopen the probate proceedings. However, it expressly made no ruling on the validity of the will or of Ms. Glavin claim that she and the decedent were married under tribal law.

Deciding this issue as we do, we need not address whether the holographic will might have been honored in Massachusetts under the circumstances, had it been timely submitted, or whether the petitioner could have qualified as a rightful heir by marriage.

The Court did, nevertheless, suggest that there was validity to Ms. Glavin’s claims to the property based on contract law and the relationship between her and the decedent’s siblings.

[Ms. Glavin’s] petition states a viable claim that the petitioner and [the decedent’s] heirs subsequently agreed to a tenancy for the petitioner’s lifetime, the partial performance of which could be sufficient to overcome the Statute of Frauds.

According to the Court,

The law will recognize a lease with a term defined by a person’s lifetime…Such a lease is subject to the Statute of Frauds…and ordinarily would have to be evidenced by a writing…There can be an exception to the Statue of Frauds, however, where the asserted agreement has been partially performed. See Nessralla v. Peck, 403 Mass. 757, 761 (1989) (“A plaintiff’s detrimental reliance
on, or part performance of, an oral agreement to convey property may estop the defendant from pleading the Statute of Frauds”). Moreover, partial performance by a tenant who occupies the premises can be sufficient to avoid the Statute, if the tenant also makes “improvements, repairs or expenditures in reliance on the contract.” Walsh, supra at 876.


a tenant who materially changes position in reliance on a landlord’s
promises, cf. Hurtubise v. McPherson, 80 Mass. App. Ct. 186, 189-190 (2011) (defendant estopped from pleading Statute of Frauds where plaintiff, in reliance on oral land swap agreement, “occupied [the] land and undertook the expense of construction”), or who otherwise invests substantially in a property, thereby conferring a benefit on the landlord while (potentially) evidencing an agreement to remain in the premises, may well be able to claim an estoppel. See, e.g., Chamberland
v. Goldberg, 89 R.I. 223, 234 (1959).

The Court remanded the matter to probate court for further proceedings.

For the full opinion click here.