Opinion
22-P-270
01-04-2023
IN THE MATTER OF THE ESTATE OF RONALD A. KHAN.
Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass.App.Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass.App.Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Kristopher Aleksov petitioned to probate a will made by his grandfather Ronald Khan in 2011 (2011 will) and leaving Khan's entire estate to Kristopher. Ayesha Aleksov, who was Khan's daughter and Kristopher's mother, petitioned to probate a different will; this one was dated April 18, 2019 (2019 will), and left everything to Ayesha. After a bench trial, a Probate and Family Court judge disallowed both wills and declared Khan to have died intestate. On appeal, Kristopher raises three primary arguments. First, he argues that the judge erred in concluding that the 2011 will did not satisfy the requirements of G. L. c. 190B, § 2-502. Second, he argues that the judge should not have reached the question of whether the 2011 will was procured through undue influence because neither party had raised or litigated the issue. Third, Kristopher argues that even if the issue of undue influence with respect to the 2011 will could be considered, the judge's finding that the 2011 will was the product of undue influence was clearly erroneous. We affirm.
Because the parties share the same last name, we will refer to them by their first names to avoid confusion.
Ayesha has not appealed the judge's finding that the 2019 will, of which she was the proponent, was procured through undue influence.
We do not disturb a judge's findings after a bench trial unless they are plainly wrong. See Farrell v. McDonnell, 81 Mass.App.Ct. 725, 728 (2012). See also In re Estate of Moretti, 69 Mass.App.Ct. 642, 650-651 (2007) (equating "plainly wrong" standard applicable to probate proceedings to "clearly erroneous" standard applicable to equitable proceedings). "In applying this standard, 'the judge's assessment of the quality of the testimony is entitled to our considerable respect because it is the trial judge who, by virtue of [her] firsthand view of the presentation of evidence, is in the best position to judge the weight and credibility of the evidence.'" Moretti, supra at 651, quoting Edinburg v. Edinburg, 22 Mass.App.Ct. 199, 203 (1986) .
The evidence adduced at trial permitted the judge to find the following. On April 16, 2011, Khan signed a will leaving his entire estate to Kristopher; Khan's signature was not witnessed or notarized. Approximately three years later, on January 7, 2014, Khan was in his kitchen, socializing over alcoholic drinks with Robert Barnat, a longtime friend, and Linda Reed, one of Khan's tenants. After the three had been drinking for about an hour, Kristopher brought the 2011 document into the kitchen and asked Barnat and Reed to sign it. Reed tried to read the document before signing, but Kristopher did not allow her to do so. When Reed asked what it was that she was being asked to sign, Kristopher told her that she did not need to know what the document was, and he allowed her to see only the witness signature page. Reed told Kristopher that she was uncomfortable signing the document because she did not know what it was. Kristopher told Reed not to worry and threatened that she would lose her apartment if she did not sign. Reed, who did not have a lease, then signed. Khan did not acknowledge to Reed that the document was his will, nor did he acknowledge his signature.
Where, as here, a will is not self-proved, due execution of the will may be proved by "the testimony of at least [one] of the attesting witnesses." G. L. c. 190B, § 3-406 (a). To be valid, a will must be:
"(1) in writing; (2) signed by the testator or in the testator's name by some other individual in the testator's conscious presence and by the testator's direction; and (3) signed by a least 2 individuals, each of whom witnessed either the signing of the will as described in paragraph (2) or the testator's acknowledgment of that signature or acknowledgment of the will."G. L. c. 190B, § 2-502 (a).
It is true, as Kristopher points out, that Barnat's testimony could have provided a basis for finding that the 2011 will met the requirements of § 2-502 (a.) . But the problem for Kristopher is that the judge credited Reed's testimony instead, a credibility determination that was in the judge's exclusive province to make as the arbiter of the facts. See Laws v. Aschenbeck, 326 Mass. 7, 11-12 (1950) (when attesting witnesses present conflicting testimony, "the issue as to the legal execution of the will should be submitted to [the factfinder]"); Palmer v. Murphy, 42 Mass.App.Ct. 334, 343 (1997) ("Credibility determinations, of course, lie exclusively within the province of the fact finder -- here the trial judge -- who is free to believe one witness and disbelieve another").
When attesting witnesses are not present for the testator's signature of the will, the critical inquiry for the factfinder is whether the testator "acknowledged, even implicitly, that the signature on the will was [his]." Farrell, 81 Mass.App.Ct. at 729. See G. L. c. 190B, § 2-502 (a) (3) (will must be "signed by a least 2 individuals, each of whom witnessed either the signing of the will ... or the testator's acknowledgment of that signature or acknowledgment of the will"). Here, the trial judge's subsidiary findings support her ultimate finding that "[Khan] appeared to have little or no role in the process on that evening." Barnat and Reed signed the 2011 will at an informal social gathering in Khan's kitchen at which the participants had been drinking. Barnat and Reed both testified that Kristopher, not Khan, brought the 2011 will into the kitchen. And Reed testified that she was not permitted to know what she was signing, and that she signed it in circumstances suggesting duress. The judge stated she "could not find a reason for [Reed's] testimony to be anything but credible," and that Kristopher's testimony related to the 2011 will was, in part, "self-serving." The evidence permitted the judge reasonably to infer that Khan did not explicitly acknowledge his signature on the 2011 will.
Kristopher, relying on Farrell v. McDonnell, argues that even if Khan did not explicitly acknowledge that the 2011 will was, in fact, his last will and testament, he implicitly acknowledged such by remaining in the room while the witnesses signed the document. Witnesses to a will do not necessarily need to see the testator sign his or her name if the testator implicitly acknowledges that the testator had signed the will. See Farrell, 81 Mass.App.Ct. at 730 (testatrix's actions, including "reading the attestation clause, signing the will, and being present while [it was notarized], indicate that [the testatrix] was acknowledging the presentment of her will to the witnesses for execution"). This case, however, shares none of the facts the court found relevant to the testatrix's implicit acknowledgment in Farrell. Simply remaining at the kitchen table while Barnat and Reed signed the document at Kristopher's direction does not, without additional evidence, support the proposition that Khan implicitly acknowledged either his signature or that the document was his last will and testament.
Concluding as we do that the trial judge did not err in finding that the 2011 will was not duly executed, we affirm the judgment. We need not, and do not, reach the judge's additional conclusion that the 2011 will was the product of Kristopher's undue influence.
We deny Ayesha's request for appellate fees and costs. See Abuzahra v. Cambridge, 486 Mass. 818, 829 (2021), quoting Symmons v. O'Keeffe, 419 Mass. 288, 303 (1995) (appellate courts "are hesitant to deem an appeal frivolous and grant sanctions except in egregious cases").
Judgment affirmed.
Wolohojian, Henry & Hershfang, JJ.
The panelists are listed in order of seniority.