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News - 2022

Aug. 2022

Firm's Probate Court win featured in MLW

Massachusetts Lawyers Weekly featured Richard Novitch’s recent success in persuading a Massachusetts Probate Court judge in a case of first impression to invalidate a voluntary acknowledgment of paternity signed and notarized in 2010 by a biological mother and man who knew he was not the father.

The judge’s ruling barred the claim of the woman’s son by declaring he was not a legal heir entitled to inherit from the man’s intestate estate. The decedent died intestate in June 2020 and was survived by several siblings.

Mr. Novitch, representing the man’s sister who had been nominated as the man’s attorney in fact in conjunction with a Special Personal Representative, also persuaded the judge to annul the marriage between the woman and man due to the man’s lack of capacity to enter a marriage contract at the time of the 2019 civil wedding ceremony, rendering moot the woman’s Complaint for Separate Support.  The last time a reported Massachusetts appellate decision annulled a marriage following the death of a spouse was in 1818.

Under Massachusetts law, a voluntary acknowledgment of paternity is considered final and binding unless either signatory rescinds an acknowledgment within 60 days of the date of signing or it is challenged within one year based on fraud, duress, or material mistake of fact.

Nonetheless, the judge – implicitly rejecting the doctrine of adoption by estoppel, recognized only by a handful of states – found that the 2010 voluntary acknowledgment was void because both parties knew at the time they executed the document that it did not accurately reflect the parentage of the child in question and had the man truly intended to adopt the woman’s child, he easily could have done so but did not.

In the absence of case law addressing the issue, the Probate Court judge could have followed the lead of other states by introducing the concept of “adoption by estoppel” into Massachusetts law.

But had the judge gone that route, it would have opened the door for future parties to use scant single-page agreements to circumvent the adoption statute, a “sharp deviation” from established state law, Mr. Novitch told the publication.

“If [the decedent] really wanted to adopt [the woman’s son], there was a way to do it,” Mr. Novitch said.

Attorneys Viktor A. Theiss and Theresa K. Capobianco collaborated with Mr. Novitch in the case.