Opinion
No. 15–P–346.
08-03-2016
Maurice SNEED, guardian and conservator, & others v. James DILDAY & others.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
By a complaint filed in the Probate and Family Court, the plaintiffs, relatives omitted from the estate plan of the decedent, Bettie Sephus, challenged the principle documents of the plan, a deed and two trusts, on grounds that the decedent lacked testamentary capacity and was subject to undue influence. After hearing conflicting evidence at trial, the judge dismissed the complaint and judgment entered for the defendants. In a subsequent order, the judge awarded the defendants $282,899.14 in attorney's fees and $7,075.02 in costs pursuant to G.L. c. 215, § 45, and Estate of King, 455 Mass. 796 (2010). The plaintiffs appeal from both the judgment and the order awarding attorney's fees. For the reasons stated in the judge's detailed and well-reasoned decisions, we affirm.
Testamentary capacity. We refer the parties to the judge's thorough recitation of the facts and do not repeat them here. Contrary to the plaintiffs' argument, the judge did not ignore the medical evidence that the decedent, in the two years prior to executing her estate planning documents on March 10, 2008, had been diagnosed with Alzheimer's disease, clearly exhibited some memory and even judgment issues, and at least intermittently suffered from hallucinations and delusions. The judge acknowledged the diagnosis and deficits noted in the medical records in her findings, but concluded, largely from the decedent's independent attorney's testimony and contemporaneous notes, that despite the decedent's deficits, she retained the requisite capacity to execute the trusts and deed at issue.
Although there was no will in the estate planning documents, the judge and both parties apply a testamentary capacity analysis to the decedent's capacity to execute the deed and trusts at issue. See Maimonides Sch. v. Coles, 71 Mass.App.Ct. 240, 251–252 (2008), quoting from Clymer v. Mayo, 393 Mass. 754, 765 (1985) (where a pour-over will and inter vivos trust “comprise integrally related components of a single testamentary scheme,” the standard that governs the testator's capacity to execute the trust amendment and the will is that of testamentary capacity). We, too, therefore apply a testamentary capacity analysis.
The judge found that the attorney confirmed that the decedent understood the nature and situation of her property, her relationships with the plaintiffs and the defendants, and the process of creating testamentary instruments. Indeed, the evidence showed that the decedent's independent attorney met with her for over one hour and followed up with several telephone conversations over the course of some five months before the final meeting to execute the documents. His contemporaneously-written notes reflect that although he could perceive some memory issues, she remained consistent and clear about her wishes, and during each interaction, she was able to recall their previous discussions. In addition, the attorney spoke with the decedent's treating psychiatrist on two occasions and received her written and oral opinion that the decedent retained the ability to make estate planning decisions despite her memory and judgment issues. Moreover, while the medical records suggest the decedent had periods of delusions or hallucinations, they also reflect that she had responded well to medications, and her psychiatrist's notes reflect that she was free of delusions and hallucinations in the period prior to the date she executed the documents at issue. That she subsequently suffered increasing mental disability from her disease does not mean she was incompetent on March 10, 2008.
The critical question is whether the decedent was of sound mind at the time she executed the documents, and if the judge was satisfied she was, lack of capacity at other times would not invalidate the documents. Estate of Rosen, 86 Mass.App.Ct. 793, 798 (2014). The plaintiffs have “provided no basis to doubt that the judge, who was in a superior position to appraise and weigh the evidence, carefully considered the conflicting evidence and assigned it the weight [she] thought appropriate.” Id. at 799, quoting from Brandao v. DoCanto, 80 Mass.App.Ct. 151, 155–156 (2011). Moreover, “[i]f the trial judge makes one of several possible choices of what facts are supported by the evidence, the judge's choice is not clearly erroneous.” W. Oliver Tripp Co. v. American Hoechst Corp., 34 Mass.App.Ct. 744, 751 (1993).
Contrary to the plaintiffs' argument, the judge was not required to accept the testimony of the plaintiffs' expert witness who, although he had never met or treated the decedent, opined that she lacked testamentary capacity based primarily on his review of the medical records. The judge found the expert's analysis flawed because he relied only on certain aspects of the medical evidence and largely disregarded testimony of witnesses, including the drafting attorney, who actually observed the decedent and whose testimony the judge credited. See Maimonides Sch., 71 Mass.App.Ct. at 254 n. 9 (noting shortcoming in doctor's affidavit of failing to take into account multiple disinterested witnesses' descriptions of testator as alert, oriented, and engaged during the period surrounding execution of trust amendment). We find no error in the judge's determination that the plaintiffs' expert witness lacked credibility. Accordingly, the burden did not shift to the defendants to prove the decedent's capacity.
To the extent the plaintiffs rely on Paine v. Sullivan, 79 Mass.App.Ct. 811 (2011), that case is distinguishable on its facts for at least two reasons. First, the attorney in Paine did no more than speak to the testator on one occasion on the telephone. Id. at 815. The attorney did not investigate the testator's competence and did not even supervise the execution of the estate documents. Accordingly, “[h]e could provide no evidence as to [the testator's] capacity on the dates the wills were executed.” Ibid . Second, the judge here found that the expert's testimony “was speculative and based upon selective hindsight.”.
We also reject the plaintiffs' speculative argument that the judge misinterpreted the treating physician's description of the decedent as “coherent” and that the judge unreasonably relied on that misinterpretation in concluding that the plaintiffs had not met their burden to rebut the presumption of capacity. It is true that the judge noted that the decedent's treating physician described the decedent on December 18, 2007, as “coherent,” but she also noted the doctor's description of the decedent's mood and cognition as “stable” and the absence of hallucinations or delusions. Moreover, the judge did not place undue emphasis on the “coherent” descriptor, but rather expressly found that it was the attorney's “contemporaneous notes from the time of his first meeting with [the decedent] on October 24, 2007 through the document execution on March 10, 2008 [which] provide the Court with the most reliable evidence regarding [the decedent's] testamentary capacity.”
The plaintiffs argue that the written opinion from the treating psychiatrist was dated approximately five months after the decedent's last visit. However, the psychiatrist saw the decedent just five days after the date of the letter, and the treatment notes, besides indicating the decedent was “coherent,” confirm that the psychiatrist continued to be aware that the decedent was in the process of planning her estate with an attorney. The psychiatrist further provided an affidavit in this matter averring that nothing in her notes between December, 2007, and March, 2008, indicated any significant change in the decedent's mental capacity for estate planning purposes.
Undue influence. We discern no error in the judge's analysis of the plaintiffs' undue influence claims for the reasons stated in the judge's decision. The judge's finding that the estate plan does not result in an unnatural disposition is not clearly erroneous. Moreover, the judge found that the decedent had an independent attorney who was alert to the undue influence issue and through his meetings and telephone conversations ensured that the decedent was fulfilling her personal wishes.
Attorney's fees. A judge enjoys broad discretion to award fees pursuant to G.L. c. 215, § 45, “as justice and equity may require.” See Estate of King, 455 Mass. at 805. “[A]n award of costs and fees by a judge in the Probate Court under § 45 ‘may be presumed to be right and ordinarily ought not to be disturbed.’ “ Ibid., quoting from Smith v. Smith, 361 Mass. 733, 738 (1972). No reason has been shown to disturb the award.
In exercising her discretion, the judge placed great emphasis on the fact that the plaintiffs never deposed the decedent's attorney despite the fact that none of the plaintiffs had observed the decedent on the day or in the days, weeks, or even months before she executed the documents at issue. The plaintiffs concede they had had only brief telephone conversations with the decedent for the two years prior to that date. In these circumstances, it should have been clear to the plaintiffs that the attorney's testimony would be critical to the capacity determination, as the inquiry into testamentary capacity turns on the decedent's capacity at the time of execution of the documents. See Estate of Rosen, 86 Mass.App.Ct. at 798. That the medical records reflected a diagnosis of Alzheimer's disease, alone, was not sufficient for the plaintiffs to succeed on their claims; it was critical to ascertain the impact of the disease on the decedent's ability to understand her estate, the natural objects of her bounty, and her estate planning desires, on the date the documents were executed.
In addition, we discern no abuse of discretion where the judge drew an adverse inference as to plaintiff Maurice Sneed's good faith where she claimed on the one hand that the defendants should have known the decedent lacked testamentary capacity when the documents at issue were executed in March, 2008, but concedes, as she must, that she engaged in a real estate transaction with the decedent later that year. There being no argument that the amount of the award was unreasonable, we discern no error in the fee award.
Appellate attorney's fees. The defendants' request for an award of appellate attorney's fees and costs is allowed. In accordance with Fabre v. Walton, 441 Mass. 9, 10–11 (2004), the defendants may, within fourteen days of issuance of this memorandum and order, submit an application for attorney's fees and costs with the appropriate supporting materials. The plaintiffs shall have fourteen days thereafter to file a response to that application.
Judgment affirmed.
Order awarding attorney's fees and costs affirmed.