Opinion
16-P-818
06-08-2017
In the MATTER OF the ESTATE OF Roland HUBERT.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Roland Hubert (decedent) died from dementia in 2011. Under the terms of a codicil to his will that the decedent executed in 2009, his estate would pass to his nephew Marc Hubert (nephew). The defendant's niece, Bernadette Litchfield (niece), who originally was to receive the entire estate, challenged the validity of the codicil and other instruments affecting the estate. Although the niece raises several issues on appeal, this case hinges on the factual question whether the decedent possessed testamentary capacity when he executed the 2009 codicil. Because the Probate and Family Court judge's finding that the decedent possessed the requisite capacity at that time is adequately supported by the trial record, we affirm.
An earlier codicil executed in 2007 had divided the estate equally between the niece and nephew. The niece and nephew are cousins, not siblings. Other nieces and nephews participated in the proceedings below but are not parties to this appeal.
Background. Following an eight-day trial, the judge made 145 subsidiary findings of fact, none of which the niece appears to contest on appeal. We summarize the facts based on those findings, reserving some details for later discussion.
For many years, the niece maintained a close relationship with the decedent, who had no children of his own and who had lost his wife around 1990. The niece, who lived out of State, testified that she visited the decedent regularly and that she and her husband, an accountant, assisted him with his taxes and financial affairs. In 1995, the decedent executed a will devising all of his assets to the niece. In 1999 or 2000, the decedent began to spend time with the nephew, who lived nearby. As disinterested witnesses confirmed, over time, the decedent and the nephew developed a relationship comparable to that of "father and son."
The decedent also transferred his house to a revocable trust with himself as beneficiary during his life and the niece as successor beneficiary.
The decedent's health began to decline in the early 2000s. During that period, the nephew became increasingly involved in the decedent's affairs. For example, the nephew would accompany the decedent to medical appointments and write out checks for the decedent when it was painful for him to do so. In 2006, the decedent began to give substantial gifts, including a vehicle, to the nephew. In 2007, the decedent executed an initial codicil to the 1995 will adding the nephew as a beneficiary. The following year, the decedent had the nephew added as a signatory on his bank accounts. Soon thereafter, the nephew began to transfer substantial sums of money from those joint accounts to his own accounts, eventually totaling more than $287,000.
There was conflicting testimony as to whether the decedent intended to transfer these assets as gifts or as loans. The judge found that they were gifts, and the niece does not challenge the finding.
On January 16, 2009, the decedent executed the second codicil, devising all of the decedent's assets to the nephew. The decedent's friend, Diana Gondek, and the nephew accompanied the decedent to the drafting attorney's office for the execution, although the nephew did not go in. The codicil was drafted by Attorney John James, who had prepared both the original will and the 2007 codicil, and two employees of James's office witnessed the execution.
One month before the execution of the second codicil, the decedent told the niece that he had been seeing his late wife. Medical records, from an appointment about three weeks after the execution, document "hallucinations," and list "dementia" as a one of the decedent's health problems. There also was evidence that in early 2009 the decedent exhibited forgetfulness and on one occasion lost track of what day it was. However, he continued to live alone and to keep his various commitments in the community throughout 2009. The decedent was diagnosed with dementia in January, 2010. In March of that year, he executed a durable power of attorney (DPA) nominating the nephew as his conservator and guardian. In April, 2010, the decedent was admitted to the nursing home where he remained until his death.
For example, the decedent served on his parish council through the end of 2009.
The nursing home filed a notice of claim in the Probate and Family Court alleging that it was owed tens of thousands of dollars for the decedent's care. The judge ordered the debt to be settled through the sale of the decedent's house. Apparently content with having secured that disposition, the nursing home did not join this appeal.
Discussion. As noted, the key issue is whether the decedent possessed testamentary capacity when he executed the 2009 codicil. Testamentary capacity "requires freedom from delusion which is the effect of disease or weakness and which might influence the disposition of [the decedent's] property," and the "ability at the time of execution of the alleged will to comprehend the nature of the act of making a will." Paine v. Sullivan, 79 Mass. App. Ct. 811, 817 (2011), quoting from Palmer v. Palmer, 23 Mass. App. Ct. 245, 250 (1986). Whether a testator has testamentary capacity is a question of fact. Estate of Galatis, 88 Mass. App. Ct. 273, 278 (2015).
The niece also argues that both the 2007 codicil and the 2010 DPA were invalid due to lack of capacity, and challenges the judge's finding that when the decedent added the nephew as a signer to his bank accounts in 2008, he intended to give to the nephew as a gift all of the money in those accounts. At trial, the niece argued that the nephew procured both codicils through undue influence, but she does not press that claim on appeal.
While the proponent of the codicil bears the burden of proving testamentary capacity at the time it was executed, he is aided by a "presumption of sanity." Palmer, supra. See Rempelakis v. Russell, 65 Mass. App. Ct. 557, 563 (2006). However, "[w]here there is some evidence of lack of testamentary capacity, the presumption ... loses effect." Palmer, supra. Although the judge did not expressly address the presumption of sanity in her rationale section, it is clear from her analysis and her inclusion of the just-quoted language from Palmer that she did apply one (while ultimately determining that there was sufficient evidence to rebut it). Contrary to the nephew's argument, there was sufficient evidence of the decedent's lack of capacity to rebut the presumption.
The nephew makes much of the fact that the judge did not credit the testimony of the niece's medical expert that the decedent could not have possessed the requisite capacity on the date of the execution. However, there was other evidence that the decedent's mental health had begun to deteriorate by January, 2009, and the only attesting witness who had a specific memory of the execution testified that the decedent appeared "frail" and that she had concerns about his capacity.
We turn then to whether the judge's ultimate finding that the decedent possessed testamentary capacity at the time of execution is adequately supported by the record. In reaching that finding, the judge considered the testimony of both attesting witnesses, James, the niece's medical expert, Gondek, and the nephew. The niece argues that James, Gondek, and the nephew offered incompetent or irrelevant testimony and that the remaining evidence did not support the judge's finding.
The judge was entitled to rely on the testimony of James, the drafting attorney, to the extent that he was able to provide relevant evidence of the decedent's capacity at the time of the execution. See Paine, supra at 820, and cases cited. James did not take contemporaneous notes and his memory of the execution was vague. However, unlike the attorney in Paine, on which the niece principally relies, James was present for the execution and able to remember some important details from that day, including that the decedent "appeared to be oriented as to time and space," "knew what he wanted to do," and "explained ... why he wanted to do it." Nothing in Paine precluded the judge from relying on those relevant portions of James's testimony.
As noted, James had a long history with the decedent, having worked on his estate matters since 1995.
Similarly, the judge did not err in relying on the testimony of Gondek or the nephew as to the decedent's conduct and appearance on the day of the execution. While nonexpert witnesses cannot themselves give opinion testimony on testamentary capacity, the relevant observations of witnesses who saw the testator around the time of the execution certainly can support the judge's own finding on the matter. See Maimonides Sch. v. Coles, 71 Mass. App. Ct. 240, 252-253 (2008) (observations of health care workers, friends, and family that decedent was "of sound mind" could support finding of testamentary capacity).
For example, Gondek gave unobjected-to testimony that the decedent was well dressed, did not appear frail, and was clear about what he wanted on the day in question.
Moreover, there was other evidence to support the judge's finding of competency. In addition to the above-mentioned testimony, there also was evidence that the decedent continued to live alone and work in the community for roughly one year after the execution. See ibid. (fact that decedent "continued to manage his business affairs" helped support finding of capacity). Although the second attesting witness, Erna Lallier, could not recall this specific execution, she had extensive experience as a witness to estate plan documents, explained her normal process for determining capacity, and testified that she would not have signed the codicil if she had thought that the decedent was "confused." See Farrell v. McDonnell, 81 Mass. App. Ct. 725, 726-727 (2012) (relying on testimony of notary and two witnesses who could not recall execution but explained usual practices to determine validity of will).
None of this is to say that we consider the evidence of testamentary capacity to be overwhelming. "The question, however, ‘is not what finding we ourselves would have made on the same evidence,’ but whether we can say the finding of ‘competence was plainly wrong.’ " Paine, 79 Mass. App. Ct. at 812, quoting from Goddard v. Dupree, 322 Mass. 247, 248 (1948). A finding is plainly wrong only if the evidence, "with every reasonable inference which can be drawn from it, is insufficient to warrant the findings." Erb v. Lee, 13 Mass. App. Ct. 120, 124 (1982). That is not the case here.
"The ‘plainly wrong’ standard is the same as the ‘clearly erroneous' standard." Gates v. Reilly, 453 Mass. 460, 465 n.9 (2009), quoting from Building Inspector of Lancaster v. Sanderson, 372 Mass. 157, 161 (1977).
In concluding that the decedent had the requisite capacity in January of 2009, the judge, in passing, referenced photographs that had been taken of him around Christmas of 2009 showing him engaged in conversation. We need not address the niece's arguments about the improper use and limited evidentiary value of such photographs since there was ample other evidence to support the judge's ultimate finding.
Having concluded that the judge's finding with regard to the second codicil is adequately supported, we need not reach the other arguments the niece made (as the niece acknowledged at oral argument). Although she has raised nontrivial claims that the judge erred in concluding that the decedent authorized the nephew to drain the joint bank accounts in the manner he did, resolving that issue is now of no consequence (since the money, if returned to the estate, would in any event inure to the nephew's benefit). Similarly, nothing turns on the validity of the first codicil, which was superseded by the second, or on the DPA.
The nephew's own testimony appears to contradict the notion that in adding the nephew to the account, the decedent intended to gift to him all of the money in the account. Specifically, the nephew testified that when the decedent was told that, as a signatory, the nephew "could take everything out of that account," the decedent responded that the nephew "won't do that."
--------
Decree affirmed.