Opinion
15-P-1585
01-18-2017
In the MATTER OF the ESTATE OF Marianne KEATING.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following the death of Marianne Keating (Marianne) on October 12, 2012, T.R. Jackson, the named personal representative of her final will dated August 27, 2012, filed it for probate. The sole issue on appeal is whether the judge erred in granting summary judgment in favor of Jackson thereby allowing the will and dismissing the objections and petitions of Lucy C. Keating (Lucy), who contested the will. We affirm.
As Marianne and her sister, Lucy, have the same last name, we refer to them by their first names to avoid confusion.
Initially, Lucy also claimed that the will failed for lack of proper execution and lack of testamentary capacity. At the hearing below, Lucy conceded that Marianne was competent at the time the will was executed. The judge ruled in favor of Jackson on the issue whether the will was properly executed. Lucy does not pursue this issue on appeal and we deem it to be waived. See Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975).
Background . The record contains the following uncontested facts. Marianne and Lucy were sisters. Marianne never married or had children, and her brother and parents predeceased her. Lucy was Marianne's closest living relative at the time that Marianne executed her will.
Jackson and Marianne became friends in the 1960's and became romantic partners around 2000. They lived together for at least the last ten years of Marianne's life. Marianne suffered from polycystic kidney disease and endured multiple serious medical events throughout her life, including a kidney transplant in 1986 and several bowel resections beginning in 2002, requiring a colostomy which never was reversed successfully. In 2006, Marianne's transplanted kidney failed and she began hemodialysis three days a week. From 2002 until her death in 2012, she underwent over forty surgical procedures, some minor and some more serious. Jackson provided extensive medical care and comfort to Marianne throughout these events, keeping notebooks related to her medical needs, accompanying her to appointments, attending to her colostomy bag and wound care, and ensuring she had a healthy diet. By all accounts, including Marianne's reports to friends and health care workers, the care provided by Jackson kept her out of a nursing home.
Lucy acknowledged that Marianne "remained strong of mind, vital and independent" and "knew who she was, what she was, and what she wanted" through all of her ailments. Lucy also acknowledged that Marianne "had a genius for maintaining friendships with a widely diverse assortment of people, each of whom seemed to think they alone had the inside track to the true Marianne." Between 2002 and her death in 2012, Marianne experienced long periods of relative good health interspersed with periods of medical crisis. Even when she was back on dialysis, Marianne continued to travel and arranged for dialysis in the location she visited. In 2010, she visited Lucy in Lambertville, New Jersey.
Marianne's personal physician, who treated her for the last five years of her life, saw her on July 25, 2012, August 1, 2012, and September 12, 2012. He opined that Marianne was competent, had a complete understanding of her medical issues and her mortality, and made all the final decisions about her care. He also observed Marianne's interactions with Jackson as "mutually respect [ful,] ... mature, close and caring." The record also contains an affidavit from a second physician, Marianne's nephrologist, which is to the same effect. As to the assertion by both physicians that Marianne was competent, there is no medical evidence to the contrary in the record.
In 2003, during a hospitalization, at the urging of medical staff, Marianne agreed to update her estate plan. So far as the record reflects, she did not engage the services of a lawyer. The record indicates that Jackson printed out several wills from an online service, providing different options for beneficiaries. Marianne selected and executed a will leaving the bulk of her estate to Jackson and naming Lucy as the contingent beneficiary should Jackson predecease her.
Jackson offered the 2003 will for probate should the 2012 will be declared invalid. Lucy filed an objection. The judge dismissed the formal petition to allow the 2003 will. Neither party has pursued this issue, and the validity of the 2003 will is not before us. If Marianne had a will before 2003, it is not part of the record before us.
Marianne executed the will that is the subject of this appeal on August 27, 2012, prior to her open heart surgery on August 29, 2012. Jackson accompanied Marianne to the town clerk's office in South Deerfield where two town employees witnessed her execute the will. Although neither employee recalled witnessing the will, they verified that their signatures are on the will.
The property that passed under Marianne's 2012 will consists of her home in Whately, Massachusetts, a car, and certain mineral rights, all of which had a total value of approximately $248,000. Marianne also owned property of approximately $1,369,962 that passed outside her estate. Those assets, except for a $58,000 retirement account that passed to Lucy, passed to Jackson.
The 2012 will, like the 2003 will before it, leaves the bulk of Marianne's estate to Jackson and designates Lucy as the contingent beneficiary.
After her August 29 surgery, Lucy stayed with Marianne for two weeks while Jackson was away. The two sisters visited with old friends. They went out for dinner and took long drives and walks. There is no evidence in the record that on any of these occasions the sisters discussed Marianne's estate plan or that Marianne suggested she had been forced by Jackson to draft her will for his benefit.
Discussion . The sole argument that Lucy makes on appeal is that Jackson used undue influence to persuade Marianne to leave the bulk of her estate to Jackson under the terms of the 2012 will. "[A] party challenging a will or other document on the ground that it was procured through fraud or undue influence bears the burden of proving the allegation by a preponderance of the evidence." Rostanzo v. Rostanzo , 73 Mass. App. Ct. 588, 604 (2009) (quotation omitted). To establish a claim of undue influence, the contestant must establish that a third party "overpowered the mind of the decedent" through the use of coercion and caused the decedent to make a will that reflects the third party's "dominating purpose" as opposed to the wishes of the decedent. Ibid . "To prove undue influence, a contestant must show ‘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.’ " Maimonides Sch . v. Coles , 71 Mass. App. Ct. 240, 255-256 (2008), quoting from O'Rourke v. Hunter , 446 Mass. 814, 828 (2006). Although a finding of undue influence may rest largely on circumstantial evidence, "[m]ere suspicion, surmise or conjecture are not enough to warrant a finding of undue influence. There must be a solid foundation of established facts upon which to rest an inference of its existence." Maimonides Sch ., supra at 256, quoting from Neill v. Brackett , 234 Mass. 367, 370 (1920).
While our review of a judgment entered under Mass.R.Civ.P. 56(c), as amended, 436 Mass. 1404 (2002), requires that we examine the evidence in the light most favorable to Lucy, "conclusory statements, general denials, and factual allegations not based on personal knowledge are insufficient to avoid summary judgment." O'Rourke , supra at 821, quoting from Cullen Enterprises, Inc . v. Massachusetts Property Ins. Underwriting Assn ., 399 Mass. 886, 890 (1987). Contrast Estate of Moretti , 69 Mass. App. Ct. 642, 655-658 (2007) (overwhelming evidence that testator was isolated from longtime friends and advisors).
In the absence of undue influence, "the law respects the choices of the competent testator" and "does not overrule them for reasons of questionable wisdom or social utility."Maimonides Sch ., supra . A proponent of a will prevails on a motion for summary judgment "if he affirmatively demonstrates that the contestant[ ] has ‘no reasonable expectation of proving an essential element of [her] case.’ " O'Rourke , supra at 828, quoting from Kourouvacilis v. General Motors Corp ., 410 Mass. 706, 716 (1991).
Because we review the allowance of the motion de novo on the same record as below, we need not address Lucy's argument that the judge erroneously placed the burden on her to prove each element of her claim, rather than on Jackson to show that Lucy had no reasonable expectation of proving an essential element of her claim.
We agree with the judge that based on the undisputed material facts, Lucy has no reasonable expectation of proving the essential elements of her claim.
Lucy argues that it was unnatural for Marianne to have provided that family heirlooms would pass outside the family and to someone for whom they were meaningless. First, "[t]he mere fact that the decedent chose to leave [her] property to a close friend rather than to a relative does not render the disposition unnatural. There is no rule of law that prefers bequests to relatives over bequests to nonrelatives who are friends." Heinrich v. Silvernail , 23 Mass. App. Ct. 218, 224 (1986). Further, even if this bequest could be said to be unnatural, the law will not disturb a testatrix's choice absent proof that her will was overcome by improper means. There is no such evidence in this record. In light of their longstanding relationship and Marianne's ill health, the fact that Jackson both made the requested changes to the will and accompanied Marianne to have it executed two days before she was scheduled to undergo open heart surgery does not give rise to an inference of improper means. That Jackson may have had "the power of influence held by one friend over another will not defeat the will. Such influence is a simple and expected consequence of human friendship." Id . at 226.
It is not without significance that the 2012 will did not differ from the 2003 will. The 2012 revisions affected the disposition of the estate only in the event that both Jackson and Lucy (the first contingent beneficiary) predeceased Marianne. Compare Paine v. Sullivan , 79 Mass. App. Ct. 811, 817 (2011).
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Conclusion . The record before us does not raise a genuine issue of fact as to whether Jackson's conduct overpowered Marianne's power of self-determination. Because Lucy had no reasonable expectation of proving the essential elements of her claim, the judge was warranted in allowing Jackson's motion for summary judgment and in dismissing Lucy's objections and petitions.
Decrees entered June 17, 2015, affirmed .