Opinion
No. 15–P–548.
06-03-2016
M.S. v. M.L.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
W.R. died on January 5, 2011, at the age of ninety-six. Shortly thereafter, on March 24, 2011, W.R.'s adopted daughter, M.L., filed a petition for administration of the estate. However, apparently unbeknownst to M.L., W.R. died testate. In 2007, he had executed a will and various estate planning documents leaving his entire estate to M.S., his grandson and M.L.'s son. The will nominated M.S. to serve as executor. M.S. filed a petition for probate of the will, which M.L. opposed. She filed an affidavit of objections contesting the allowance of the will on the grounds that W.R. lacked testamentary capacity and was unduly influenced by M.S. M.S. filed a complaint in equity and, following extensive discovery, moved for summary judgment. Concluding that M.L. could not substantiate her claims with any admissible evidence and that there was no genuine issue of material fact on the issues of testamentary capacity or undue influence, a judge of the Probate and Family Court entered summary judgment in favor of M.S. on his equity complaint and on M.L.'s counterclaim to that complaint. The will was then admitted to probate and, in a subsequent order, the judge awarded M.S. a portion of his claimed fees and costs. The judge then dismissed with prejudice M.L.'s petition for administration. This appeal ensued.
W.R. was predeceased by his wife and biological daughter. M.L. is the daughter of W.R.'s wife from an earlier marriage.
M.L.'s counterclaim asserted the same grounds as her objection to the will and further alleged that M.S. had “fraudulently induced” W.R. to execute the will.
Background. On February 12, 2007, W.R. executed a will leaving his entire estate to M.S. W.R. then executed a second nearly identical will on June 14, 2007, which specifically excluded M.L. as a beneficiary. Both wills were prepared by Attorney James M. Kickham. At issue is the validity of the second will (hereinafter, the will). On July 12, 2007, with the assistance of Attorney Gregory Pearce, W.R. created an irrevocable trust naming himself as the sole lifetime beneficiary and M.S. and the M.S. Heritage Trust as beneficiaries upon his death. M.L. is not named in the trust provisions.
We summarize the information that emerges from the summary judgment record as uncontested. See Maimonides Sch. v. Coles, 71 Mass.App.Ct. 240, 242 (2008).
Shortly after litigation involving the will commenced, the court appointed a temporary administrator of the estate, Attorney David Aptaker, who was tasked with determining whether the will was valid. He interviewed, among others, Attorney Kickham, Attorney Pearce, the witnesses to the will, M.L., and M.S. Aptaker submitted a detailed and comprehensive report in which he stated that both Attorneys Kickham and Pearce believed that W.R. was of sound mind and competent when he executed the will and trust documents. Kickham told Aptaker that W.R. was “quite clear about what he wanted to do with regard to his will.” Pearce reported that “[W.R .] was fully aware of what he was doing during the estate planning.”
From his discussions with M.L., M.S., and others, Aptaker determined that W.R. had a close relationship with M.S. and was estranged from M.L. M.L. reported to Aptaker that, as a result of an earlier family disagreement over the disposition of her sister's estate, which W.R. inherited, she had not seen her father for five years prior to his death. M.S., on the other hand, had a special relationship with W.R. Aptaker concluded that “[t]here [was] no credible evidence to suggest that [W.R.] wanted to leave his estate to anyone other than his beloved attentive grandson, [M.S.].” Aptaker further stated that a challenge to either the will or the trust would not survive a motion for summary judgment.
The judge also appointed a special master of discovery, Attorney Richard C. Biller, for the purpose of addressing M.L.'s request for W.R.'s medical records. Because W.R. was diagnosed with dementia approximately one year before he died and had been treated by a psychiatrist, Dr. Jonathan Florman, and a psychologist, Dr. Stephen Amira, for depression and anxiety for an extended period of time both before and after the will was executed, M.L. sought discovery of all of the records claiming that they were relevant to prove her claim that W.R. lacked testamentary capacity. Biller disagreed. After reviewing the records that had already been produced, which included Dr. Florman's office notes covering the period of time beginning March 28, 2003, and ending March 31, 2009, and two years of records from Dr. Almira beginning one year before the will was executed and ending one year after, Biller determined that M.L. possessed all relevant documentation and that her request was overbroad. Moreover, upon reviewing those records, Biller concluded that they “provide[d] no reason to question [W.R.]'s mental capacity.” Biller further opined that the records indicated that W.R. “was a fairly well-functioning older person who was dealing appropriately with issues germane to his age and station in life.” Consequently, Biller concluded that W.R.'s psychotherapist-patient privilege should be respected and that the interests of justice did not entitle M.L. to discovery of additional medical records. See G.L. c. 233, § 20B (d ).
After thorough briefing and argument, and taking into consideration the reports prepared by Aptaker and Biller, as well as the pleadings, the affidavits, and W.R.'s medical records, the judge, in a well-reasoned memorandum of decision, concluded that there were no genuine issues of material fact regarding W.R.'s testamentary capacity at the time the will was executed. The judge noted that M.L. failed to produce any expert testimony establishing a lack of capacity and, by contrast, the medical records, coupled with the testimony provided by the attorneys who executed the will and trust documents and numerous other witnesses, established that W .R. had testamentary capacity. The judge observed that W.R.'s later dementia was not relevant as he was diagnosed with that condition nearly four years after he executed the will and that, although there was some evidence of memory loss, short-term memory loss is not a sufficient basis on which to challenge a will.
Next, the judge concluded that M.L. could not meet her burden of proving that W.R.'s will or trust was the product of undue influence exerted by M.S. The judge noted that, “[a]lthough the disinheritance of a sole remaining daughter to the sole benefit of her son appears to be [an] objectively unnatural disposition on the part of a person in [W.R.]'s situation, there was undisputed evidence that [M.S.] was the frequent caregiver to [W.R.] and that [W.R.] and [M.L.] were not close.”
Discussion. 1. The summary judgment motion. To prevail on summary judgment, the moving party must show that, “viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to a judgment as a matter of law.” Sullivan v. Brookline, 435 Mass. 353, 356 (2001) (quotation omitted). “If the opposing party fails properly to present specific facts establishing a genuine, triable issue, summary judgment should be granted.” O'Rourke v. Hunter, 446 Mass. 814, 821–822 (2006), quoting from Cullen Enters., Inc. v. Massachusetts Prop. Ins. Underwriting Assn., 339 Mass. 886, 890 (1987). A will proponent moving for summary judgment must “affirmatively demonstrate [ ] that the contestant [ ] ha[s] ‘no reasonable expectation of proving an essential element of [the] case.’ “ Maimonides Sch. v. Coles, 71 Mass.App.Ct. 240, 249 (2008), quoting from O'Rourke v. Hunter, supra at 828. Our review is de novo. Maimonides Sch. v. Coles, supra at 250–251.
a. Testamentary capacity. With respect to the issue of testamentary capacity, the proponent has the burden of proof and must show, by a preponderance of the evidence, that the testator
“[was able] to understand and carry in mind, in a general way, the nature and situation of his property and his relations to those persons who would naturally have some claim to his remembrance[,] ... [was]free from delusion which is the effect of disease or weakness and which might influence the disposition of his property[,][a]nd ... [was able] at the time of execution ... to comprehend the nature of the act of making a will.”
Palmer v. Palmer, 23 Mass.App.Ct. 245, 250 (1986), quoting from Goddard v. Dupree, 322 Mass. 247, 250 (1948). “In sustaining that burden, he is aided by a presumption that the testator had the requisite testamentary capacity. However, the presumption has effect only until evidence of want of capacity appears.” Duchesneau v. Jaskoviak, 360 Mass. 730, 732 (1972) (citation omitted).
We have carefully reviewed the record evidence concerning W.R.'s testamentary capacity at the time the will was executed and reach the same conclusion as the motion judge. We agree that M.L. has offered no competent evidence that W.R. lacked testamentary capacity and, as the judge observed, the undisputed evidence is that Attorney Kickham, who prepared the will, as well as the two witnesses to the will observed W.R. to possess testamentary capacity. In addition, Attorney Pearce, who prepared the estate planning documents, and other persons who spent time with W.R. during the relevant period of time made the same observation, namely that W.R. was of sound mind in June, 2007. Nothing in the medical records contradicts the evidence. We also agree that W.R.'s subsequent diagnosis of dementia in 2010 is not relevant. The critical date is in June 14, 2007, when the will was executed. See O'Rourke v. Hunter, supra at 827. Because the judge correctly ruled that M.L. did not present evidence sufficient to overcome the presumption that W.R. had the requisite testamentary capacity at the time he executed his will, we affirm the grant of summary judgment on this ground.
We reject as unsubstantiated M.L.'s claim that she was entitled to additional discovery of W.R.'s medical records. W.R.'s psychiatrist, Dr. Jonathan Florman, produced office notes from the time period of March 28, 2003 through March 31, 2009. The notes show that W.R. was somewhat anxious and depressed throughout 2006 but was “cognitively ... relatively stable.” Dr. Florman's notes from a session which occurred three days before the signing of the June will state that W.R. reported feeling “improved,” “calmer,” and “not distressed.” According to the notes, W.R.'s mood remained well controlled throughout 2007. W.R.'s psychologist, Dr. Stephen Amira, treated him for approximately twenty years. His notes for the time period of January 1, 2006, through July 30, 2008, do not support a finding that W.R. lacked mental capacity at the time in question. The judge did not abuse her discretion in the circumstances presented.
b. Undue influence. M.L. has the burden of proving undue influence. Four considerations are usually present in a case of undue influence: “that an (1) unnatural disposition has been made (2) by a person susceptible to undue influence to the advantage of someone (3) with an opportunity to exercise undue influence and (4) who in fact has used that opportunity to procure the contested disposition through improper means.” Tetrault v. Mahoney, Hawkes & Goldings, 425 Mass. 456, 464 (1997) (quotation omitted).
We agree with the judge that the evidence shows that the disposition was not unnatural. W.R. was close to his grandson and had not spoken to his daughter, who acknowledged that she had many disagreements with her father, for five years prior to his death. The absence of any evidence in the record creating a genuine issue that the disposition was unnatural is sufficient to dispose of the claim of undue influence. See O'Rourke v. Hunter, supra at 828. We note, however, that the record is devoid of any suggestion that W.R. was susceptible to undue influence or that M.S. employed improper means to obtain his inheritance. In sum, because M.L. has not produced evidence to support her allegation of undue influence, there was no error in the allowance of M.S.'s motion for summary judgment on this ground.
2. Attorney's fees and costs. M.L. argues that the award of attorney's fees and costs to M.S.'s counsel is excessive and should be vacated. We disagree. M.S. sought total fees and costs in the amount of $70,508.43. The judge awarded attorney's fees and costs in the amounts of $34,708.84 and $2,092.84, respectively. A judge of the Probate and Family Court has broad discretion to determine an appropriate award of fees, costs, and expenses. See G.L. c. 215, §§ 39A, 45 ; Matter of Estate of King, 455 Mass. 796, 809 (2010). In this case, the judge considered all the factors required in fashioning a reasonable award of fees and costs. It is apparent from her reduction of the amount requested (by approximately one half) that she conducted a careful review and employed a fair rationale. We see no error and no abuse of discretion.
3. Appellate attorney's fees and costs. M.S. argues that he is entitled to his reasonable appellate attorney's fees and costs because M.L. pursued a frivolous appeal. See Mass.R.A.P. 25, as appearing in 376 Mass. 949 (1979). We agree. M.S. may submit a petition for his appellate attorney's fees to this court in the manner prescribed in Fabre v. Walton, 441 Mass. 9, 10–11 (2004), within twenty calendar days of the date of the rescript. M.L. may respond within twenty calendar days from the date of said filing.
Judgment affirmed.