Mask Mandates, Police Powers, and the U.S. Constitution: Jacobson v. Massachusetts

It’s probably safe to assume that a larger percentage of Americans are fed up with mask mandates.  Where, you may ask, do state and local officials get the authority to force me to wear a mask?

Over the past year and a half, state governments have greatly relied on a 116-year-old Supreme Court decision to justify mask mandates.  That decision is Jacobson v. Massachusetts.

Jacobson was a reverend in Cambridge, Massachusetts.  Around 1900, the Cambridge board of health required all residents to get vaccinated against smallpox or pay a $5 fine.  The board of health was acting pursuant to authority expressly given to it by the state legislature.  At that time, the legislature enacted a plainly-worded statute which allowed:

the board of health of a city or town if, in its opinion, it is necessary for the public health and safety shall require and enforce the vaccination and revaccination of all inhabitants thereof and shall provide them with the means of free vaccination.  Whoever, being over twenty-one years of age and not under guardianship, refuses or neglects to comply with such requirement shall forfeit five dollars.

Jacobson, representing himself at trial, challenged the constitutionality of both the statute and the board’s requirement.  He lost at trial and again on appeal to the Massachusetts Supreme Judicial Court.  His case eventually made it to the U.S. Supreme Court where Jacobson’s arguments were again rejected. 

The Court’s decision, written by Justice Harlan, is one of the most favorable rulings ever made for expanding state governments’ police powers.

However, there are significant distinctions that can be made between the decision in Jacobson and the current imposition of masks.

Legislative Power vs. Executive Power

Almost every page of the Jacobson decision gives deference to the state legislatures’ power to make laws regulating health and public safety.  Here are just a few highlights:

Upon what sound principles as to the relations existing between the different departments of government can the court review this action of the legislature? 

(Perhaps Justice Harlan is unaware of the court’s power of judicial review established in Marbury v. Madison.)

The legislature has the right to pass laws which, according to the common belief of the people, are adapted to prevent the spread of contagious diseases.

No court, much less a jury, is justified in disregarding the action of the legislature simply because in its or their opinion that particular method was—perhaps or possibly—not the best either for children or adults.

Mask mandates, however, are mentioned nowhere in the statutory laws.  No legislature that I’m aware of has enacted laws concerning the wearing of masks.  (Though this may change in coming  years.)  Instead these mandates are being imposed solely by the executive branch using existing statutory laws that, at best, are being stretched—perhaps to the breaking point.

A good example of this is the statewide school mask mandate imposed by the Massachusetts education department and education board.  Unlike the vaccine mandate challenged in Jacobson, there is no clear statutory authority authorizing education officials to impose masks.  They are basing their authority on a single sentence in M.G.L. c. 69, section 1B which authorizes the education board to ensure that students attend school in a structurally safe environment, i.e., that all school buildings are up to code.

The board shall establish minimum standards for all public early childhood, elementary, secondary and vocational-technical school buildings, subject to the provisions of the state building code.  The board shall establish standards to ensure that every student shall attend classes in a safe environment.  (Emphasis added.)

No honest person could read this paragraph and say that it permits the board of education to mandate masks or make any other form of health policies for students.

The excessive deference given to state legislatures in the Jacobson decision should not now be extended to the executive agencies of each state.

$5 Fine vs. Second-Class Citizenship

As stated above, the fine at issue in Jacobson was a mere $5.  This would be about $150 in today’s currency.  According to the attorneys who argued Jacobson’s case before the Supreme Court, the $5 fine was the most extreme penalty ever imposed by a state for failure to comply with a vaccine mandate.  After showing that three quarters of the states had no penalty whatsoever for failing to submit to vaccination and that the remaining states had, at best, a nominal penalty for refusal, Jacobson’s attorneys noted: “None of these cases are as extreme as the decision in the case at bar.”

If a $5 fine is extreme, how should we define total exclusion from school, work, religious worship, or in-person commerce?  Those are the consequences of violating almost every state-imposed mask mandates.

The Court in Jacobson reserves the right for itself to strike down a state’s public health policy when the policy “is, beyond all question, a plain, palpable invasion of rights secured by the fundamental law.” 

The Court notes,

The mode or manner of exercising its police power is wholly within the discretion of the State so long as the Constitution of the United States is not contravened, or any right granted or secured thereby is not infringed, or not exercised in such an arbitrary and oppressive manner as to justify the interference of the courts to prevent wrong and oppression.

It is arguable that the policies and penalties for failure to wear a mask (e.g., exclusion from school, work, religion, and commerce) rise to the level of a constitutional violation that may rightfully be addressed by the courts.

Smallpox vs. COVID

The Court in Jacobson went to great lengths to detail the long, successful history of smallpox vaccination in the western world.  In one of the lengthiest footnotes in Supreme Court history, Justice Harlan outlines the use of the smallpox vaccine beginning in 1808, nearly 100 years prior to the Court’s decision.

No such historical argument can be made regarding mask mandates.  And, unlike the smallpox vaccine, the efficacy of mask use in slowing the spread of COVID is highly questionable.

Here are a few key points from a recent study conducted by researchers from the University of Louisville:

– Randomized control trials have not clearly demonstrated mask efficacy against respiratory viruses, and observational studies conflict on whether mask use predicts lower infection rates.

– Case growth was not significantly different between mandate and non-mandate states at low or high transmission rates, and surges were equivocal.

– Mask mandates and use are not associated with slower state-level COVID-19 spread during COVID-19 growth surges.

No such uncertainty existed concerning smallpox vaccines at the time of Jacobson.  The vaccine mandate at issue in that case bears no resemblance to the mask policies at issue now.

Mass. Court Upholds Israeli Judgment

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Earlier this week the Supreme Judicial Court (SJC) upheld a trial court decision validating an Israeli law firm’s judgment against a Massachusetts defendant.

According to the court’s opinion, the defendant agreed to pay the Israeli law firm for legal services in Israel. After the services were provided the defendant refused to pay the law firm’s bill despite numerous email requests.

This prompted the law firm to file suit against the defendant in Israel. The law firm attempted to serve notice on the defendant at her residence in Massachusetts. However, the defendant evade all efforts made by the sheriff’s department to serve her personally with the court summons. (The sheriff’s office went to the defendant’s residence four times to no avail. They also spoke to the defendant over the phone and she told them that she would not accept service of the summons.)

Despite the sheriff’s failure to serve the defendant with notice, the Israeli court entered a default judgment in favor of the law firm.

The law firm then filed an action in Massachusetts Superior Court seeking to enforce the Israeli judgment pursuant to the Uniform Foreign Money-Judgments Recognition Act, M.G.L. c. 235, section 23A, which states, in part, that

any foreign judgment that is final and conclusive and enforceable where rendered…shall be conclusive between the parties to the extent that it grants or denies recovery of a sum of money. The foreign judgment shall be enforceable in the same manner as the judgment of a sister state which is entitled to full faith and credit.

The defendant contested this enforcement of the judgment arguing that the law firm failed to properly serve her with notice of the lawsuit (Mass.R.Civ.P. 4(d)) and that enforcement of the Israeli judgment would be contrary to public policy.

The Superior Court rejected both of these arguments and the SJC affirmed the decision.

According to the SJC, the fact that the sheriff’s office did not serve the defendant personally with the initial summons is insufficient to render the judgment invalid.

whether a particular method of notice is reasonable depends on the particular circumstances. The absence of service of process is not dispositive….The defendant received adequate notice. After the defendant orally agreed to guarantee the legal fees, the plaintiff repeatedly notified her when these came due, making clear that it would hold her personally liable. The defendant certainly received at least one of these requests, as she responded to the demand sent in July 2013, even apologizing for the delay. Apologies aside, this would be the last that the plaintiff heard from the defendant during these exchanges. More alerts about possible litigation followed, but the defendant continued not to respond. Although these facts alone are not sufficient notice, they contextualize what happened next: four attempts to serve the defendant, one of which included a telephone conversation between the defendant and the process server in which the defendant informed the server that she would not accept the papers. Throughout these efforts, the defendant cloaked herself in a veil of ignorance, leading the Israeli and Superior Court judges to make their respective findings about notice.

Next the court rejected the defendant’s claim that the Israeli judgment was contrary to the Commonwealth’s public policy and thus unenforceable according to the Uniform Foreign Money-Judgments Recognition Act. The defendant’s claim was based on the fact that she did business through a corporate entity and that she, therefore, could not be personally liable for the judgment owed. The judgment was, according to the defendant, repugnant to public policy.

In rejecting this claim, the court wrote,

Repugnancy is strong medicine, best administered sparingly. A judgment will offend public policy when the original claim is repugnant to fundamental notions of what is decent and just in the State where enforcement is sought…In the classic formulation, a judgment that ‘tends clearly’ to undermine the public interest, the public confidence in the administration of the law, or security for individual rights of personal liberty or of private property is against public policy…The Israeli judgment is not repugnant. This judgment was premised on the plaintiff asking the Israeli court to pierce the…corporate veil and hold the defendant personally liable. As both the Superior Court judge and other courts have noted, Israeli courts take corporate veil piercing seriously.

Police Chief’s Refusal to Issue License to Carry Upheld by Mass. Appeals Court

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Yesterday the Massachusetts Appeals Court upheld a police chief’s decision to deny the renewal of a man’s license to carry (LTC) a firearm based on the man’s involvement with illegal drug sales.

The LTC applicant was observed by police in two drug transactions in 2011, though no charges were made. A year later, in 2012, the LTC applicant was stopped by police and then arrested for possessing a small bag of heroin. The stop was later deemed illegal and all charges were dropped.

In 2019 the applicant sought to renew his license to carry a firearm and the police chief denied his renewal based on the 2011 and 2012 incidents.

The decision was contested in District Court where the judge reversed the police chief’s decision noting both the age of the incidents and the fact that no criminal findings were ever made against the applicant.

The police chief appealed to the Superior Court which reversed the District Court’s ruling. The applicant then brought the matter before the Appeals Court.

The Appeals Court affirmed the decisions made by the Superior Court and the chief of police.

Their discussion on Massachusetts’ gun licensing laws is as follows:

The purpose of G. L. c. 140, § 131 [gun licensing law], is to limit access to deadly weapons by irresponsible persons…Accordingly, a licensing authority may deny an LTC application “if, in a reasonable exercise of discretion,” it determines that the applicant is unsuitable, “based on: (i) reliable and credible information that the applicant or licensee has exhibited or engaged in behavior that suggests that, if issued a license, the applicant or licensee may create a risk to public safety; or (ii) existing factors that suggest that, if issued a license, the applicant or licensee may create a risk to public safety.” G. L. c. 140, § 131 (d). The “suitable person” standard “confers upon a licensing authority considerable latitude or broad discretion in making a licensing decision”

Furthermore, a District Court judge may reverse a police chief’s decision on gun licensing (pursuant to G.L.c. 140, section 131f),

only upon a showing by the applicant that the licensing authority’s refusal was arbitrary, capricious, or an abuse of discretion.

According to the Appeals Court, the District Court judge failed to adhere to this standard.

Rather, she re-evaluated the evidence and decided that it was “too thin” and “too stale” to constitute a palpable risk. This was error because, as we have previously said, “[t]he [hearing] judge . . . may not second guess the licensing authority’s decision to take one reasonable action over another.

Therefore, the Appeals Court affirmed the Superior Court’s judgment and the police chief’s decision to revoke the LTC.

Barstool Sports Wins Legal Battle Against Somerville Mayor

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This week the Supreme Judicial Court in Massachusetts affirmed a trial court’s dismissal of Mayor Joseph Curtatone’s lawsuit against Barstool Sports, Inc.

The spat between the parties began in 2019 when the virtue-signaling mayor publicly criticized the Boston Bruins for distributing Barstool Sports promotional towels at their hockey games.

Curtatone sounded off on in social media page,

As a fairly rabid sports fan one of the more regrettable things
I’ve seen is the attempt to disguise misogyny, racism & general
right-wing lunacy under a ‘sports’ heading. Our sports teams &
local sports fans need to push back to stress that’s not for

In response, Barstool Sports commentator Kirk Minihane attempted to speak with Mayor Curtatone about his social media remarks. After the mayor refused this request, Minihane called again and impersonated a reporter from the Boston Globe. This time Mayor Curtatone took the call.

Minihane asked permission to record the call and the mayor agreed. The conversation was then recorded and posted on Barstool’s blog:

Curtatone later discovered that the conversation was a trick and filed a lawsuit against Barstool Sports claiming that the company violated the Massachusetts wiretap act, M.G.L. c. 272, section 99.

The trial court dismissed the mayor’s complaint stating that he failed “to state a claim upon which relief could be granted.” The decision was appealed directly to the Supreme Judicial Court.

The Court affirmed the dismissal of the case. According to the opinion, Massachusetts’ wiretap act prohibits “willful…interception of any wire or oral communication.”

The Court then discussed the meaning of “interception” as it relates to the statute:

Interception, as defined in the act, “means to secretly hear, secretly record, or aid another to secretly hear or secretly record the contents of any wire or oral communication through the use of any intercepting device by any person other than a person given prior authority by all parties to such communication.” G. L. c. 272, § 99 B 4.

The call between Curtatone and Barstool was neither “intercepted” nor “secretly record[ed]” according to the Court. In fact, at the start of the call, Minihane expressly told Mayor Curtatone that he was recording the conversation and received Curtatone’s permission to do so. The fact that Minihane lied about his identity was irrelevant. Thus, the court concluded,

Because Minihane did not secretly record his conversation with the plaintiff, the challenged recording does not fall within the statutory definition of an “interception” within the meaning of the Commonwealth’s wiretap act. The plaintiff thus has not made factual assertions sufficient to state a cause of action upon which relief can be granted.

Plumber Sued for Wrongful Death After Installing Water Heater: Court Dismisses Case Based on Statute of Repose

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Late last week, the Massachusetts Appeals Court affirmed a judgment dismissing a wrongful death lawsuit against a plumber who installed several new water heaters and associated piping in a residential building in Springfield.

The plumbing work was completed and approved by city officials in October 2012.

In 2016, a resident in the building where the work had been completed suffered a seizure while showering. He was discovered slumped over in the bathtub in several inches of “steaming hot water.” He suffered second and third degree burns on his body and died shortly thereafter.

The decedent’s estate filed a wrongful death lawsuit against the plumber in 2019.

The trial court rejected the complaint citing M.G.L., c. 260, section 2B which states,

Action of tort for damages arising out of any deficiency or neglect in the design, planning, construction or general administration of an improvement to real property…shall be commenced only within three years next after the cause of action accrues; provided, however, that in no event shall such actions be commenced more than six years after the earlier of the dates of: (1) the opening of the improvement to use; or (2) substantial completion of the improvement and the taking of possession for occupancy by the owner.

The decedent’s estate appealed the trial court’s decision. The Appeals Court affirmed the decision. According to the Appeals Court’s opinion, the plumbing work was completed and the six-year time limit given in M.G.L., c. 260, section 2B began on the date the city issued its certificate of occupancy approving the work in October 2012. Thus, the estate was required to bring its claims against the plumber by October 2018 the latest.

Air BNB Host Not Liable for Visitor’s Death – Supreme Judicial Court

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Earlier this week the Massachusetts Supreme Judicial Court upheld the dismissal of a wrongful death lawsuit filed against an Air BNB host.

The host/property owner entered into a short-term rental agreement in 2016. The man who rented the property claimed that he was using it over the weekend for a college reunion.

Instead the renter posted advertisements on social media announcing as “Splash Mansion Pool Party” by “Special Invitation & Girls Only.”

The party, which took place over Memorial Day Weekend, was so large that over a hundred people were in attendance by 1 a.m.

Around 3 a.m. a man standing near the pool was shot twice in the chest and died shortly thereafter. The shooter was never identified.

The decedent’s estate filed a wrongful death lawsuit against the property owner claiming that the property owner “committed a breach of his duty to conduct the rental of his home in a ‘reasonable, prudent, and legal manner’ and that, as a result, the decedent was shot and killed.”

The property owner moved to dismiss the lawsuit arguing that the estate failed to show he owed a duty to protect the decedent from injury by a third party.

The trial court agreed with the property owner and dismissed the case. The estate appealed the decision. The Supreme Judicial Court rejected the estate’s arguments on appeal and affirmed the trial court’s decision.

According to the SJC,

A viable negligence claim requires a showing that a defendant owes a duty of reasonable care to the plaintiff, the defendant committed a breach of that duty, the plaintiff suffered damage, and a causal relationship existed between the breach of duty and the damage.

The opinions states the this duty of reasonable care “depends upon the foreseeability of a risk of harm that the defendant has an ability to prevent” and “does not extend to taking affirmative steps to protect against dangerous or unlawful acts of third persons.”

In the case at hand, the estate failed to show that the property owner could reasonably foresee the harm to the decedent. Therefore, the wrongful death claim was rightfully dismissed.

The opinion also made clear that there is a distinction between hotels and restaurants and those who rent their residential property online.

The defendant argues that just as restaurants, hotels, and common carriers have a duty to protect their customers from third-party harm, the defendant, as a “short-term rental operator,” had the same duty vis-à-vis those lawfully on his property during a rental. This comparison misses the mark. Aside from the fact that there is no allegation of any relationship between the defendant and the decedent other than the fact that the decedent was shot and killed on property owned by the defendant, perhaps the biggest difference between the relationship between a business establishment and its customers and the defendant’s relationship to the decedent is that the defendant had no control over the premises during the rental period. As the plaintiff acknowledged in the complaint, at the start of the rental period the defendant gave [the renter] sole and exclusive possession of his [r]esidence for the three-day stay, with no visits, monitoring, or supervision by [the defendant].” In short, aside from ensuring that the property was in a reasonably safe condition when he turned the premises over to [the renter]…the defendant owed no additional duty of care to the decedent.

For the full opinion click here.

Landlord Isn’t Liable for Tenant’s Pit Bull Attack: Appeals Court Ruling

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The Massachusetts Appeals Court has ruled that a landlord is not liable for his tenant’s pit bull after the dog ran from the landlord’s property and attacked a pedestrian.

The plaintiff was riding his bike past the landlord’s house with his dog jogging along side him on a leash.

The pit bull ran into the street and attacked the leashed dog while knocking the plaintiff to the ground. The plaintiff suffered injuries due to the fall.

He sued the landlord for negligence and the trial court judge dismissed the lawsuit through summary judgment. The plaintiff appealed and the Appeals Court issued a ruling affirming the trial court’s decision.

According to the Appeals Court

As a general rule, a landowner does not owe a duty to take
affirmative steps to protect against dangerous or unlawful acts
of third persons…There is an exception to this general rule where there is a special relationship between the landowner and a plaintiff in which a plaintiff would reasonably expect a landowner to take steps to protect the plaintiff from harm…We have previously held that such a special relationship exists between a residential landlord and a tenant, such that a landlord has a duty of reasonable care to protect a tenant from harm by another tenant’s pit bull on the premises…However, no Massachusetts appellate court has extended such a duty to a passer-by injured by a tenant’s dog after the dog leaves the landlord’s property. We decline to do so here.

Appeals Court Rules on Estate Battle Over Hand-Written, Unwitnessed Will Devising Home on Martha’s Vineyard

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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.

Mass. Appeals Court Rules on Defamation Lawsuit for Online Posts

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A recent decision by the Massachusetts Appeals Court considered when and how a plaintiff can sue a defendant for comments made online. The key points of the decision are as follows:

Statue of limitations

According to the court, an action for defamation due to an online post must commence within three years of the date of publication, i.e., the date when the statement was posted online. The court rejected the argument that the statue of limitations begins from the time that plaintiff first learned of the publication.

Single-publication rule

Next the court held that the defendant/publisher (in this case a newspaper) can be sued for only one instance of defamation and cannot be sued for each and every time a person viewed the posts at issue.

Under the [single-publication rule], a person may bring one (and only one) cause of action for defamation against the publisher based on its publication of the defamatory statement.

Fair report privilege

Finally, the court ruled that the “fair report privilege” applied to online posts such as the one at issue here where a newspaper simply reported on the plaintiff’s arrest based on the official police report.

The fair report privilege establishes a safe harbor for those who report on statements and actions so long as the statements or actions are official and so long as the report about them is fair and accurate.”  Howell v. Enterprise Publ. Co., 455 Mass. 641, 651 (2010)….a report need give only a rough-and-ready summary that was substantially correct in order to qualify for the fair report privilege.  A statement is considered a fair report if its gist or sting is true, that is, if it produces the same effect on the mind of the recipient which the precise truth would have produced.

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Handwriting Samples Can Be Used to Authenticate Wills According to Mass. Appeals Court

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According to a recent opinion by the Massachusetts Appeals Court, those seeking to authentic a last will and testament may use extrinsic evidence such as handwriting samples.

The ruling was made after a probate court judge in Middlesex County refused to permit such evidence during a trial.

The opinion states:

“By denying [the appellant] the opportunity to present extrinsic evidence for consideration in determining proper execution of the will, the judge deprived [him] of a ‘full and fair hearing upon the whole evidence’ in violation of due process…We do not here decide whether the extrinsic evidence proffered by [the appellant] was sufficient to prove the validity of the will, but rather conclude only that the judge erred in restricting [his] presentation to that evidence in violation of G.L. c. 19B, Section 3-406. Therefore, [the appellant] must be provided the opportunity to present admissible ‘other evidence’ to prove the will as instructed by the statute, and may do so without the aid of expert testimony. In addition, the judge may revisit the issue of permitting expert testimony on the subject.”

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