Opinion
10-P-2260
02-24-2012
YARED A. WEAVER v. LESTER MIETKIEWICZ.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Yared A. Weaver appeals from an order of a judge of the Worcester Family and Probate Court allowing Lester Mietkiewicz's motion to dismiss Weaver's petition to probate the 2008 will of Sophie DiPillo. We affirm.
Facts. In August of 2007, Weaver became the full-time caretaker for his great aunt, DiPillo, following her release from a nursing home. At that time, DiPillo's health care proxy (HCP) and durable power of attorney (DPA) were held by her nephew, Mietkiewicz. In April, 2008, Weaver accompanied DiPillo to the office of her long-time attorney to execute a new HCP and DPA naming Weaver as both agent and attorney in fact, as well as to execute a new will. DiPillo's attorney declined to draft the documents due to a lack of mental capacity on the part of DiPillo. Weaver then took DiPillo to a second attorney, who did agree to draft and supervise the execution of a new HCP, DPA, and will, but tape recorded the interview and signing.
The tape was reviewed by both the Probate Court judge and this panel.
In November, 2008, the Probate Court judge issued findings of fact and conclusions of law approving the appointment of Mietkiewicz as DiPillo's temporary guardian and rejecting the appointment of Weaver. The judge found that 'at the time of execution [of the HCP and DPA], Ms. DiPillo was not aware of her date of birth, age or exact address.' The judge further found 'that Ms. DiPillo did not have the requisite capacity to draft either document on April 4, 2008, relying on the tape recording of the execution ceremony . . . .'
The judge also made detailed findings as to Weaver's mismanagement of DiPillo's finances and his inappropriate behavior as a caregiver in general.
DiPillo died in November, 2008, approximately a week after the Probate Court judge's ruling on the guardianship. Weaver petitioned to probate the 2008 will, and Mietkiewicz moved to have the petition dismissed. The petition and motion to dismiss were heard by the same judge who had earlier ruled on Mietkiewicz's application to be appointed temporary guardian. Incorporating the findings of fact from the earlier decision, the judge ruled that DiPillo 'lacked the requisite testamentary capacity to execute a will.' This ruling was expressly predicated on the separate finding that '[d]ue to Sophie's inability to answer these very basic questions, and the fact that she lacked the requisite capacity to execute the Health Care Proxy and Durable Power of Attorney, the Court infers that she also lacked the requisite testamentary capacity to execute a will.'
Discussion. Weaver argues that the judge improperly rested her decision on the fact that DiPillo had already been ruled incompetent to execute an HCP or a DPA, and therefore incorrectly applied the stricter standards of competency for the execution of those documents to the execution of the will. Weaver bases this argument on the judge's finding that 'since Sophie lacked the requisite capacity to execute the Health Care Proxy and the Durable Power of Attorney, she could not legally have had the capacity to execute a will on the same date.'
It is true that the standard for executing a will is different from and less stringent than the standard for the capacity to execute a contract. Maimonides Sch. v. Coles, 71 Mass. App. Ct. 240, 251 (2008).
'The capacity to contract requires the ability to transact business, Krasner v. Berk, 366 Mass. 464, 467 (1974), and more specifically the ability to . . . ' grasp its significance.' Ibid., quoting from Sutcliffe v. Heatley, 232 Mass. 231, 232-233 (1919). In contrast, the standard for testamentary capacity ' requires ability at the time of execution of the alleged will 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).'
Maimonides, supra at 251. A careful reading of the judge's memorandum of decision, however, reveals that she did not conflate the standards. Rather, she found that the factual findings underlying her earlier ruling that DiPillo lacked the capacity to execute a DPA and an HCP, together with additional findings, were also sufficient to sustain a ruling that DiPillo lacked testamentary capacity. The judge was well aware of the standard for testamentary capacity. She quoted it in full, and immediately thereafter recited the relevant facts on which she relied when making her decision, namely DiPillo's inability to remember her date of birth, age, or exact address during the execution of the various documents. In addition to her earlier findings, and those on which she based her decision concerning DiPillo's testamentary capacity, she also relied on, among other things, the recording made of DiPillo's execution and signing of the will. This recording reveals that DiPillo was not sure of the exact nature of her relationship with Weaver, asking the lawyer to stop because she was too confused to answer his questions as to who Weaver was and what his relationship was to her.
Finding as we do that the appropriate legal standard was used, there is no need to consider whether the judge's application of res judicata or collateral estoppel was improper. See Aetna Cas. & Sur. Co. v. Niziolek, 395 Mass. 737, 742 (1985).
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The judge's findings and rulings were amply supported by the evidence, and were not 'plainly wrong.' See Paine v. Sullivan, 79 Mass. App. Ct. 811, 812 (2011). The judge's ultimate conclusion that DiPillo was unable to 'comprehend the nature and act of making a will.' Maimonides, 71 Mass. App. Ct. at 251, was not error.
Order affirmed.
By the Court (Grasso, Fecteau & Sullivan, JJ.),