Opinion
No. 10–P–1760.
2013-06-7
Davina R. ADLER & others v. Bruce W. ADLER (and a companion case ).
By the Court (BERRY, COHEN & SIKORA, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
This appeal arises from a corrected judgment entered by the Probate and Family Court, after a trial of a consolidated will contest and equity action, relating to Ivy Ruth Adler's (the decedent) estate.
Ivy Ruth Adler died, at age ninety-seven, on January 4, 2006. Harold Adler, her husband for more than sixty years, predeceased her in 1997. Her son, Bruce W. Adler, and her daughter, Davina R. Adler, survived her as did five (adult) grandchildren and two great-grandchildren.
For ease of reference, henceforth we refer to the Adler family members by their first names.
A will contest materialized after Bruce had filed a petition offering for probate an April, 2001, instrument as the decedent's last will. Davina and her two sons, Steven A. and Jonathan C. Justi—the contestants—, each filed an affidavit objecting to the proffered instrument for reasons of lack of capacity and undue influence. See Rule 16(a) of the Rules of the Probate Court (1987), then in effect. Davina brought also a suit in equity seeking, among other relief, rescission of a restatement of a trust, which her mother had executed on November 29, 2000, and rescission of two deeds of August 30, 2000, by which Ruth had conveyed her two lake-front vacation properties in New Hampshire to Bruce. Ruth's “last” will and restated trust, combined, left the bulk, if not virtually all, of her real and personal property to Bruce, the sole trust beneficiary.
Rule 16 has since been combined with and supplanted by the Supplemental Rules of the Probate and Family Court (2012).
“[A] court acting under general principles of equity jurisprudence has broad power to reform, rescind, or cancel written instruments,” Beaton v. Land Ct., 367 Mass. 385, 392, appeal dismissed, 423 U.S. 806 (1975), on grounds including fraud and undue influence.
After an eleven-day trial, and on the basis of fifty-seven pages of findings, the judge declared the 2001 will, the deeds, and the trust restatement invalid. She rested the invalidation on two grounds: (1) Ruth had executed each instrument without the necessary testamentary (or contractual) capacity; and (2) Bruce had procured the execution of the instruments by exercise of undue influence. As a remedy, the judge allowed an earlier will executed by Ruth on November 7, 1997. As a further equitable remedy, the judge ordered the decedent's property to be held in a constructive trust for her heirs.
Davina had previously filed a probate petition offering the November 7, 1997, will as the true last will and testament of her late mother.
From the corrected judgment entered for the contestants, Bruce appeals, as do A. Silvana Giner, a trustee of the restated 1997 Ivy Ruth Adler revocable trust, and Sidney A. Slobodkin, the special administrator. We affirm.
In March of 2013, this court received motions to substitute Ira A. Nagel as trustee of the Ira Ruth Adler 1997 revocable trust and as special personal representative in the two actions. We granted the motions and have changed the case captions accordingly. We refer to A. Silvana Giner and Sidney A. Slobodkin in this memorandum and order because they served in the capacities of trustee and special administrator, respectively, at the relevant times.
Background. The judge received the following evidence. Harold and Ruth Adler were long-time residents of the town of Lincoln (town). In the 1950's, Harold acquired a large tract of land (approximately 125 acres) in the Huckleberry Hill area of the town, where the couple had a custom home built on a choice lot with a striking view of the Cambridge Reservoir.
Sometime later, Harold purchased two adjacent properties, bordering Lake Winnipesaukee, in Moultonborough, New Hampshire, and a condominium in Boca Raton, Florida. Over the years, the family made frequent use of the New Hampshire homes for summer and winter vacations.
Ruth was the primary homemaker during the couple's sixty-plus years of marriage. Harold, a very able engineer, inventor, and entrepreneur, achieved extraordinary financial success. He was a founder of a high-tech firm, Mitrol. He sold to it General Electric in 1973. Later he engaged in land development. For that purpose Harold formed a family-held close corporation, Stratford Realty Company, Inc. (Stratford), which came to hold title to the Huckleberry Hill land and which marketed and sold the lots for development. Bruce joined his father in this effort. Davina and Bruce had an equity stake in Stratford. Harold was chief officer and majority shareholder of the family firm.
Harold developed one of the first of its kind coin-operated photocopy machines, the rights to which he later sold to another large business concern.
1. Original plan. In January, 1989, with the aid of their long-time counsel, Robert Luick, Harold and Ruth created a comprehensive estate plan for the disposition of their considerable wealth and real estate holdings. Their plan, in the form of two wills and a revocable trust, left the bulk of their property to Bruce and Davina, in equal measure. By a separate memorandum, accompanying her will, Ruth directed that her “3.5 carat diamond ring” be left to Davina, and to Bruce, his “choice of one or more items” of jewelry of equivalent value. Under the 1989 will, Ruth left the New Hampshire lake homes to “my surviving issue by right of representation, as tenants in common.”
Of Sullivan & Worcester LLP, a Boston law firm.
Ruth specified that the remainder of her jewelry “be sold and the proceeds ... be divided equally” among her three grandsons, Steven, Paul, and Jonathan Justi, Davina's three sons. (Bruce's two children had not yet been born.) At trial, Davina recounted a conversation with her mother, in January, 1989, when Ruth had returned (with Harold) from Robert Luick's office. Her mother, Davina testified, “was really quite happy because she and my father had made a will.” Davina recalled her mother's words at that time that “I was to get her diamond ring” and that Bruce would have, in jewelry, “whatever [was] the equivalent value” of the diamond ring. According to Davina, Ruth said also that “everything” was to be split, fifty-fifty, “between Bruce and me.”
Davina recounted a conversation in the early 1990's that she had with Bruce's wife, Florence, respecting the New Hampshire homes. Florence and Davina “were discussing who would get what house.” Bruce was present during the conversation but did not voice any opinion on the subject. (Florence died before Ruth).
On September 2, 1997, Harold died. His death followed an infection sustained in the course of a surgical procedure at the Massachusetts General Hospital (MGH). Ruth's grief over the loss of her husband deeply colored the next nine years, which spanned the interval between Harold's death and her own in 2006. To family members and others, including her primary care physician (PCP), Ruth often voiced a desire to die and rejoin Harold.
In November, 1997, Davina filed a petition for appointment as special administratrix of Harold's estate so that she might have capacity to bring an action against MGH. This effort was a source of some friction between Davina and her mother, who was opposed to pursuit of a malpractice action.
Dr. Steven Kanner, Ruth's PCP, testified that this refrain “was a regular interaction” during appointments.
On November 7, 1997, just two months after Harold's death, Ruth established an inter vivos revocable trust, and executed a new will, drafted by Attorney Luick. Ruth's 1997 will was consistent, in form and substance, with the original 1989 estate plan, though the 1997 document omitted a residual bequest to her grandsons. Ruth directed that the residue of her estate be left to Bruce and Davina to share equally. The 1997 will also had a new clause, which provided that “all of my real estate shall be sold and the proceeds thereof shall be added to my residuary estate.” She made no exception for the New Hampshire property.
On July 15, 1998, Ruth executed another will, with assistance from Cornelius J. Murray, Esq., of Sullivan & Worcester. She devised her Lincoln home to Bruce and left her other real estate to Davina and Bruce, to be shared equally (rather than directing that her real estate be sold and the proceeds remitted to her inter vivos trust, as had been provided in the 1997 will).
On January 10, 2000, with Attorney Murray, Ruth executed a codicil to her 1998 will; it devised Bruce the land adjacent or in close proximity to her Lincoln home.
2. Decline in health. From 1999 onward, Ruth required the assistance of around-the-clock health aides in her Lincoln home. One such aide, Mona Lisa Leal, cared for Ruth, between September, 2001 and August, 2004.
3. Revised estate plan. In 2000, Bruce arranged to have A. Silvana Giner, Esq., represent his mother, in place of Ruth's former counsel. Attorney Giner was a partner at Hale & Dorr. The record discloses no reason for the change. Evidence indicated that Attorney Giner had been referred (or recommended) to Bruce by his own private counsel.
Early on, Attorney Giner recommended that Ruth hire a New Hampshire lawyer to prepare two deeds for purposes of conveying the two lake-front homes to Bruce. Ruth did so by warranty deeds on August 30, 2000, for unspecified “paid” consideration. A new will and a restatement of Ruth's inter-vivos revocable trust further altered the estate plan. The trust restatement signed by Ruth on November 29, 2000, and a “last” will, signed on April 17, 2001, in essence:
With Giner's aid, Ruth had executed a will on April 17, 2001, ostensibly for the purpose to correct material errors in the November 29, 2000, will. The April 17, 2001, will did not otherwise change the disposition of property under the 2000 instruments.
(i) gave Bruce all her tangible personal property, or her grandchildren if Bruce should not survive her;
With representation by Giner, Ruth conveyed her Lincoln home to the restated trust.
(ii) poured over the entire residue of her estate, whether real or personal property, to the restated trust;
(iii) directed that all her right, title and interest in any owned real estate pass to Bruce (or his living issue should he not survive her);
(iv) ordered that the proceeds of any checking or savings accounts pass, in equal shares, to her grandchildren (or to then living issue of any deceased grandchild); and
(v) provided that Davina receive “the lesser of Twenty-five Thousand Dollars ($25,000) or five percent (5%) of the value of the trust property not disposed of,” if she survived Ruth.
In short, the revised estate plan, effectively left all real estate to Bruce in place of the equal disposition designed by the 1997 plan, and effectively limited Davina to a modest sum of cash from an abundant estate.
Discussions occurred in 2002, among Giner, Ruth, and others, including Bruce, about further amendment of the estate plan. Giner requested advice from Ruth's PCP about Ruth's capacity to do so. No further changes developed.
4. Diagnosis of Alzheimer's disease. Dr. Dilar Acar, a behavioral neurologist at the Memory Disorder Unit of Brigham and Women's Hospital in Boston, met with Ruth on November 19, 2003. Davina had arranged for this appointment because of her (and one of Ruth's at-home caretaker's) concern about Ruth's mental confusion and persistent language problems.
Dr. Acar, summonsed by the contestants, had been performing clinical research on Alzheimer's disease since 1990. Her clinical practice was largely devoted to treatment of elderly patients with the disease. She had published studies in the field.
After attending college, Davina completed formal training as a nurse. Leal was a certified nurse's aide. There is no indication that Bruce was similarly trained or licensed.
From her examination, which included a cognitive test used by neurologists to assess a given patient's memory, attention, language ability, and physical skills, Dr. Acar diagnosed Ruth as presenting “significant cognitive problems” and suffering from “moderate to severe” Alzheimer's disease. Dr. Acar prescribed Aricept for Ruth, a drug shown to slow the progression of Alzheimer's disease. Dr. Acar did not observe anything inconsistent with the reports made by Davina and the caregiver. Upon learning that his mother had been examined by Dr. Acar, Bruce became angry and-according to Leal-raised a cane toward Leal, while the two were in the kitchen of the Lincoln home.
Dr. Acar performed a somewhat abbreviated mental status examination because of Ruth's “severe problems of orientation, severe problems of not being able to even know the name of the son whom she lived with, and ... her poor insight.”
Alzheimer's, a subtype of dementia, is a progressive condition. The onset of the disease often presents short-term memory deficits and then progressively impairs other functions, including language and thought processes, and consequently capability for expression and judgment. The rate of progression in any given individual is variable.
In 2004, guardianship proceedings commenced. They resulted in the appointment of a guardian ad litem; and an independent professional guardian, who served in that capacity until Ruth's death in 2006.
Bruce was also named a coguardian of Ruth's person.
At trial, the parties presented evidence from percipient and expert witnesses on the central factual questions (1) whether Ruth had possessed the requisite capacity to execute the deeds of August 30, 2000, the trust restatement of November 29, 2000, and the will of April 17, 2001; and (2) whether Bruce had procured the execution of the instruments through undue influence. On appeal, Bruce and Giner challenge the trial judge's findings and ultimate conclusions on both scores: Ruth's lack of capacity and Bruce's exertion of undue influence.
Analysis. 1. Standard of review. (a) Trial judge's decision. A threshold issue arises from the circumstance that the judge's findings, apart from modest changes in wording, derive almost verbatim from the contestants' posttrial proposed findings of fact, conclusions of law, and rationale.
The Supreme Judicial Court has criticized such assimilations, but it has not vacated them if they have the support of the evidence. Commonwealth v. DeMinico, 408 Mass. 230, 238 (1990). “Even if a judge adopts verbatim findings prepared by prevailing counsel, ‘[t]hose findings, though not the product of the workings of the ... judge's mind, are formally his [or hers]; they are not to be rejected out-of-hand, and they will stand if supported by the evidence.’ “ First Pa. Mort. Trust v. Dorchester Sav. Bank, 395 Mass. 614, 622 n. 12 (1985), quoting from United States v. El Paso Natural Gas Co., 376 U.S. 651, 656 (1964). Our review of the record shows the judge's findings to be rooted in properly admitted evidence. Buster v. George W. Moore, Inc., 438 Mass. 635, 642–643 (2003).
The trial courts bear oppressive workloads and inadequate resources. See Moriarty, Crisis in the Delivery of Justice: Do Citizens Deserve Better?, 56 B.B.J. 10 (2011). Trial judges “may and should consider proposed findings and orders where doing so will be of assistance in fashioning a judgment.” Lewis v. Emerson, 391 Mass. 517, 524 (1984). However, the wholesale adoption of one side's proposed findings “substantially diminishes the integrity of the trial process and the respect with which the final result is viewed.” Care & Protection of Olga, 57 Mass.App.Ct. 821, 823 (2003).
(b) Findings of fact and rulings of law. Pursuant to Mass.R.Civ.P. 52(a), as amended, 423 Mass. 1402 (1996), we are obliged to accept the court's findings, unless they are shown to be “plainly wrong” (the standard for will contest proceedings), or “clearly erroneous” (the standard for equity actions). Rood v. Newberg, 48 Mass.App.Ct. 185, 190 (1999). See Paine v. Sullivan, 79 Mass.App.Ct. 811, 812 (2011). A finding of fact is clearly erroneous “when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” Marlow v. New Bedford, 369 Mass. 501, 508 (1976), quoting from United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948). See Haskell v. Versyss Liquidating Trust, 75 Mass.App.Ct. 120, 125 (2009). The trial judge's explicit (or implicit) assessment of the evidence is entitled to considerable deference because “it is the trial judge who, by virtue of [her] firsthand view of the presentation of evidence, is in the best position” to adjudge the weight and materiality of the evidence and credibility of the witnesses at trial. New England Canteen Serv., Inc. v. Ashley, 372 Mass. 671, 675 (1977). The reviewing court must “examine the evidence and decide the case upon its own judgment, but such of the findings of the judge as are based on oral testimony cannot here be reversed unless they are plainly wrong or based upon some error of law.” Cox v. Wall, 343 Mass. 542, 543 (1962).
“In applying the clearly erroneous standard to findings of a [judge] sitting without a jury, appellate courts must constantly have in mind that their function is not to decide the factual issues de novo.” Ibid., quoting from First Pa. Mort. Trust v. Dorchester Sav. Bank, 395 Mass. at 621.
We review the judge's conclusions of law de novo for legal error. Casavant v. Norwegian Cruise Line Ltd., 460 Mass. 500, 503 (2011). We examine, without deference, the legal standards applied by the judge to her findings. Kendall v. Selvaggio, 413 Mass. 619, 621 (1992).
We turn first to the evidence of Ruth's testamentary capacity. The focus centers on the interval from late August, 2000, through April, 2001, during which she executed the will and trust restatement.
2. Testamentary capacity. (a) Definition. The standard of testamentary capacity means an “ability on the part of the [testatrix] to understand and carry in mind, in a general way, the nature and situation of [her] property and [her] relations to those persons who would naturally have some claim to [her] remembrance. It requires freedom from delusion which is the effect of disease or weakness and which might influence the disposition of [her] property. And it requires ability at the time of execution of the alleged will to comprehend the nature of the act of making a will.” Goddard v. Dupree, 322 Mass. 247, 250 (1948). See, among other authorities, Santry v. France, 327 Mass. 174, 175–176 (1951); O'Rourke v. Hunter, 446 Mass. 814, 826–827 (2006); Palmer v. Palmer, 23 Mass.App.Ct. 245, 250 (1986). Testamentary capacity is a less demanding standard than contractual capacity, applicable to deeds or written agreements, as discussed below.
Sparrow v. Demonico, 461 Mass. 322, 330 (2012). Maimonides Sch. v. Coles, 71 Mass.App.Ct. 240, 251 (2008). The parties tend to conflate these two very different standards, and to direct their respective arguments to the much less rigorous testamentary standard.
(b) Allocation of burden of proof and legal presumption. Bruce, the proponent of the 2001 will, had the burden of proof (or “burden of persuasion”) to show, by a preponderance of the evidence, that his mother possessed the requisite testamentary capacity to execute a will on the date in question. Tarricone v. Cummings, 340 Mass. 758, 761 (1960). Duchesneau v. Jaskoviak, 360 Mass. 730, 732 (1972). The allocation of the evidentiary burdens of persuasion and production is a matter of law. At the onset of the trial, the will proponent receives a benefit of a legal presumption: that the testator or testatrix possessed the requisite testamentary capacity to make the will on the given date.
“It is also well settled that in addition to possessing the requisite testamentary capacity and complying with the statutory formalities regarding execution, it must also be shown that the testat[rix] knew the contents of the instrument which [she] signed and executed it with the intention that it operate as [her] will.” Duchesneau v. Jaskoviak, supra at 733. The evidence did not show that Ruth “knew the contents” of either the November, 2001, restated trust or the April, 2001, will. Though the proponent receives the benefit of an opening presumption, the evidence indicated that Ruth did not read because of eyesight problems; no evidence specified by Attorney Giner, Bruce, or anyone else stated that the various provisions were recited to her in any meaningful way.
The legal presumption of capacity “has effect only until evidence of want of capacity appears.” Sullivan v. Sullivan, 333 Mass. 512, 514 (1956). See Clifford v. Taylor, 204 Mass. 358, 361 (1910). If a contestant offers proof of incapacity, the presumption loses its effect. See Santry v. France, supra at 176.
Testifying as a qualified expert with specialized knowledge and clinical experience in the treatment of Alzheimer's disease, Dr. Colin Harrington (on behalf of the contestants) opined that, because Ruth was manifestly demented in 2003, “she would very likely [have] be[en] cognitively compromised in the time period of 2000[and] 2001 prior.” His medical opinion, with supporting testimony of the reasons for his conclusion, was sufficient to warrant an inference of incapacity and to rebut the presumption of capacity. Therefore Bruce, the proponent, was obliged to carry his burden of persuasion, that is, “to satisfy the [trial judge as fact finder] by a fair preponderance of the evidence that the deceased was of sound mind and testamentary capacity when the [will] was executed.” Ibid. See Smith v. Hill, 232 Mass. 188, 191 (1919). See also Director, Office of Workers' Compensation Programs, Dept. of Labor v. Greenwich Collieries, 512 U.S. 267, 273 (1994).
Bruce and trustee Giner argue otherwise but it is enough to point out that the special administrator, Slobodkin, did not concur. In a posttrial submission, Slobodkin conceded that the contestants had presented “sufficient testimony” (through the testimony of Dr. Harrington) “to overcome the initial presumption” of competence.
We continue to be “aware that a diagnosis of Alzheimer's disease in and of itself does not compel a conclusion that a testator lacks capacity to execute a will” (emphasis added). Paine v. Sullivan, 79 Mass.App.Ct. at 818. However it does permit such a conclusion if the “cognitive deficits associated with Alzheimer's disease manifest themselves in the loss of abilities that bear on testamentary capacity.” Ibid. In this case the evidence permitted the choice made by the judge. It was not plainly wrong.
(c) Forensic proof. Considerable evidence indicated Ruth's mental confusion during the period between 1998 and 2003. See Goddard v. Dupree, 322 Mass. at 249–250;Santry v. France, 327 Mass. at 176–177. It consisted of the personal observations by family members or caregivers during that time span.
Davina, Steven Justi, and Jonathan Justi all recounted patterns of mental confusion or misapprehension. These included her repeated references to Bruce as “Harold” in their presence. Caregiver Leal testified that on more than occasion Ruth referred to Bruce as “my husband.”
Grandson Jonathan, who was close to both Harold and Ruth, made approximately eleven or twelve visits to Lincoln between 1991 and 2006. He had a continuing opportunity to observe changes in Ruth's behavior. During 1999 and 2000, when he regularly had telephoned his grandmother, as was his custom, Jonathan noticed awkward and “uncomfortable” pauses on Ruth's part. He believed that their telephone conversations “were a burden on her.”
From grade six through high school, Jonathan lived in Lincoln with his mother, Davina, and both spent considerable time with Harold and Ruth.
Ruth taught Jonathan the art of silversmithing, a craft which he had enjoyed sharing with his grandmother.
Steven Justi testified that during his telephone conversations in 2000 or 2001, he noticed that his grandmother's “delivery was very strained” and that she “had trouble completing sentences.” He testified that he had “a few telephone conversations with [his grandmother] where the phone just went dead” and he surmised at the time that “she put the phone down.”
Jonathan described also a visit with his grandmother in April of 2002. He was in the kitchen of the Lincoln home along with Bruce and his grandmother, when she stated that, upon her death, “Bruce and Davie would get everything fifty-fifty.”
To those observations the judge could add Dr. Acar's diagnosis that as of the autumn of 2003 Ruth was suffering from “moderate to severe” Alzheimer's disease, and Dr. Colin Harrington's opinion (from a review of her medical records) that it was likely that Ruth was “struggling with cognitive compromise in 2000 and 2001, given the natural course of a dementing illness.”
Bruce presented testimony from Dr. Kanner (Ruth's PCP); from his own expert, Dr. Michael Serby, a board-certified geriatric psychiatrist and the associate chairman of psychiatry at Beth Israel Medical Center in New York; from Attorney Robert Muldoon, Jr., who represented Ruth and Bruce in a decision whether to support or join in a claim of malpractice against MGH; and from Roberta Tutunjian (secretary for Attorney Giner), who witnessed the will signing on April 17, 2001.
(i) Testimony of Dr. Kanner. Based on his observations during Ruth's medical appointments in July, August, and September, 2000, and his contemporaneous notes and records relating to the care rendered at that time, Dr. Kanner opined that her mental capacities were “quite robust.” Ruth presented as a “delightful, vibrant” patient, then ninety-one years old, with a “surprising” vitality, in short, a patient who was in “pretty good control of her faculties.”
Dr. Kanner's area of practice was internal medicine.
In January, 2001, Dr. Kanner, in the course of examining Ruth, found her to be mentally “totally intact.” Admittedly, Dr. Kanner formed these conclusions as a result of his conversation and personal interaction with Ruth, and not by any formal testing. Dr. Kanner elected not to pursue testing of Ruth's cognitive abilities.
(ii) Dr. Serby. Relying primarily on the medical records and notes of Dr. Kanner and records of the Newton–Wellesley Hospital, from October, 2001, to late September, 2003, Dr. Serby opined that Ruth was mentally intact in 2000 and 2001. Dr. Serby did not see a reason to alter his opinion based on the diagnosis made by Dr. Acar in November, 2003. Dr. Serby opined that Ruth did not suffer from Alzheimer's in 2000 or 2001. He testified also that, in order to assess cognitive capability, it is important to do some “formal” testing. He acknowledged that Dr. Kanner had not performed, during 2000 or 2001, any formal cognitive testing of Ruth.
(iii) Roberta Tutujian. She was present as a testamentary witness at the will ceremony on April 17, 2001. From her observations, she believed that Ruth was competent to make a will on that occasion.
Testamentary capacity was ultimately an issue of fact for the judge. Claffey v. Fenelon, 263 Mass. 427, 431 (1928). She received sharply conflicting evidence upon the issue of capacity. Bruce bore the burden of persuading the trial judge that Ruth had possessed the requisite testamentary and contractual capacity, on the given dates in question, whatever may have been “the intervening effect of different kinds of evidence.” Smith v. Hill, 232 Mass. at 191.
The bodies of percipient and expert testimony presented the judge with a choice between two alternative but reasonable findings. Abraham v. Woburn, 383 Mass. 724, 730 (1981). In the end, “[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). See Anderson v. Bessemer City, 470 U.S. 564, 574 (1985) (“Where there are two permissible views of the evidence, the factfinder's choice between them cannot be clearly erroneous”). “The question is not what finding we ourselves would have made on the same evidence,” but whether we can reasonably say that the finding of lack of capacity “was plainly wrong.” Goddard v. Dupree, 322 Mass. at 248. We cannot do so on this record. As long as the judge's ultimate finding is supported by reasonable inferences, drawn from the evidence of record, we will not substitute our interpretation of the facts for that of the fact finder. “[W]e have no authority to take upon ourselves the duties of a tribunal of fact, and to determine what verdict[ ] should have been rendered by the [fact finder].” Electric Welding Co. v. Prince, 200 Mass. 386, 392 (1909) (Knowlton, C.J.).
See Gallagher v. Taylor, 26 Mass.App.Ct. 876, 881 (1989). On appeal, Bruce argues there was “insufficient evidence” of want of capacity. We do not concur. To make such an argument one must substantially discount or otherwise discredit the extensive proof, both documentary evidence and oral testimony from expert and fact witnesses, which the contestants presented at trial. The choice is the province of the judge as fact finder.
3. Capacity to convey real property. Upon the same evidence, the judge was entitled to find that Ruth lacked the capacity to convey real estate by the deeds executed in April of 2000. Davina's challenge to those transactions required their proponents to prove her capacity to contract, a standard more demanding than testamentary capacity. It requires the ability to “understand the nature and quality of the transaction” and to “grasp its significance.” Maimonides Sch. v. Coles, 71 Mass.App.Ct. at 251, quoting from Krasner v. Berk, 366 Mass. 464, 467 (1974). See Sutcliffe v. Heatley, 232 Mass. 231, 232–233 (1919); Sparrow v. Demonico, 461 Mass. 322, 330 (2012). Ruth's lack of capacity to agree to the conveyance of the deeded properties justifies the invalidation of those transactions.
4. Undue influence. a. Definition. Massachusetts decisions have defined undue influence to mean “whatever destroys free agency and constrains the person whose act is under review to do that which is contrary to his [or her] own untrammeled desire.” Howe v. Palmer, 80 Mass.App.Ct. 736, 740 (2011), quoting from Neill v. Brackett, 234 Mass. 367, 369 (1920). See Bruno v. Bruno, 384 Mass. 31, 34–35 (1981). “Any species of coercion, whether physical, mental or moral, which subverts the sound judgment and genuine desire of the individual, is enough to constitute undue influence.” Neill v. Brackett, supra.
“The nature of fraud and undue influence is such that they often work in veiled and secret ways. The power of a strong will over an irresolute character or one weakened by disease, over-indulgence or age may be manifest although not shown by gross or palpable instrumentalities.” Neill v. Brackett, 234 Mass. at 369. Consequently, “[i]t is not practicable or desirable to prescribe any hard and fast rule as to what constitutes undue influence.” Cox v. Wall, 343 Mass. 542, 546 (1962).
Four common indicia are often present in a case of undue influence in the circumstance of a challenged will or similar instrument: “that an (1) an 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.” O'Rourke v. Hunter, 446 Mass. at 828, quoting from Tetrault v. Mahoney, Hawkes & Goldings, 425 Mass. 456, 464 (1997). Hernon v. Hernon, 74 Mass.App.Ct. 492, 497 (2009).
Usually, “a finding of undue influence rests largely on circumstantial evidence, since direct evidence of such influence is often difficult to establish.” Miles v. Caples, 362 Mass. 107, 112 (1972). Mere suspicion or conjecture is not adequate to warrant such a finding. The law demands “a solid foundation of established facts upon which to rest an inference of its existence.” Neill v.. Brackett, 234 Mass. at 370.
(b) Allocation of burden of persuasion. Ordinarily a claimant seeking equitable rescission must carry the burden of proving alleged undue influence of another. However, “when a fiduciary benefits from a transaction with his principal,” the burden of proving the absence of undue influence falls upon the fiduciary. Cleary v. Cleary, 427 Mass. 286, 290 (1998). See Rempelakis v. Russell, 65 Mass.App.Ct. 557, 563–567 (2006); Matter of Estate of Moretti, 69 Mass.App.Ct. 642, 650–651 (2007). See also Michaud v. Forcier, 78 Mass.App.Ct. 11, 16 (2010).
The judge applied this burden-shifting rule to the evidence here. She concluded that there was “sufficient evidence to destroy the presumption of (Ruth's) capacity and shift the burden to Bruce....” Under the indicia of undue influence we are satisfied that the allocation of the burden of proof upon the contestants or the burden of disproof upon Bruce would permit the same findings and conclusions.
(i) Unnatural disposition. The deeds of conveyance of August, 2000, the restated trust of November, 2000, and the will of April, 2001, effectively disinherited Davina and accomplished a drastic revision of the substantially even distribution of the parental estate prescribed in the plans of Harold and Ruth in 1989 and 1997. The revision occurred with no evidence of alienation between mother and daughter and with no other explanation.
Bruce has suggested that a disagreement over Davina's desire to bring suit against MGH as a result of her father's death created some separation from her mother. However the evidence showed that, before Ruth's execution of the 1997 will providing for equal division between Davina and Bruce, Davina had consulted with Attorney Luick and a personal injury law firm and had informed Ruth of her purpose. Thereafter Davina discontinued her plan for litigation in October of 2000, a month before the execution of the trust restatement and six months before the execution of the will of April, 2001. The judge correctly discounted this theory as an explanation of the ultimate one-sidedness of the final instruments.
(ii) Susceptibility to undue influence; and (iii) opportunity to exercise undue influence. As recounted in the discussion of Ruth's capacity, the evidence permitted a finding of cognitive impairment by reason of oncoming Alzheimer's disease during the period of 2000 into 2001. Meanwhile Bruce possessed a written power of attorney to manage his mother's finances. From October, 1997, to January, 2006, Bruce maintained an office and a regular presence in Ruth's Lincoln home. Since her marriage in 1955, Davina had resided generally in Florida and maintained her relationship with her parents by visits, telephone, and correspondence.
(iv) Exercise in fact. A caregiver, Mona Leal, testified that she had overheard Bruce tell Ruth, on at least two occasions during her period of employment (2001–2004) that Davina “was suing” Ruth; “want[ed] to kill” Ruth; and “ha[d] a lot to gain ... because of all the money situation, that she wanted her mother dead because [Davina] would gain” as a result. Leal had “countless” occasions to observe Ruth and Davina together in the Lincoln home; she described their relationship, as “very caring” and characterized by a “mother and daughter” bond “for both sides .” When the two were in the home, Leal recalled, they were “great together.” Leal's credibility was a matter of fact finding upon which we cannot replace the judge's explicit or implicit determination.
On at least four occasions, Leal had the opportunity to observe Ruth, Davina, and Bruce, together in the Lincoln home. Each occasion, Leal testified, “was tense.” When Bruce entered the house, with Davina present, Leal recalled, Ruth “would change” and become “tense” or “not comfortable.”
In sum, Ruth's diminished capacity and dependence, Bruce's role as a fiduciary in charge of his mother's finances, his continuous physical presence with her, the starkly disparate and unexplained dispositions of the instruments of 2000 and 2001, the caregiver's testimony about Bruce's descriptions of Davina to their mother, and the judge's assessment of each witness's credibility amply permit her finding that the contested deeds, restated trust, and final will resulted from the exercise of undue influence.
4. Allowance of 1997 will as remedy. We review the imposition of an equitable remedy for abuse of discretion. Demoulas v. Demoulas, 428 Mass. 555, 589 (1998). Cavadi v. DeYeso, 458 Mass. 615, 624 (2011). Bruce challenges the judge's allowance of Ruth's 1997 will as an appropriate remedy required by the rescission of the 2000 and 2001 instruments. He contends that the judge did not conduct an adjudication of its validity. We conclude that the validity of the 1997 will was available for adjudication throughout the lengthy trial; that Bruce effectively waived his opportunity to contest it; and that the judge possessed and appropriately exercised broad discretionary equitable power to employ it as a final remedy.
The judge admitted the 1997 will in evidence. In opening statements, counsel referred to its place in the events of the dispute. Bruce made no objection to the admission of the will even though he understood Davina's contention that it embodied their mother's last competent wishes for disposition of the parental estate. She had filed a separate petition offering for probate the 1997 will. In cross-examination, counsel for Bruce questioned Davina about the 1997 will. “This is the will that you're attempting to have enforced, correct?” Bruce offered no evidence against its genuineness and proper execution. At all times it was conspicuously visible as Davina's proposed remedy. Bruce did not attack its validity; he chose instead to defend the validity of the later instruments of 2000 and 2001. He cannot contest its validity for the first time on appeal.
The probate judge's equitable power to cure the improper dispositions of the deeds, restated trust, and 2001 will were extensive. In this instance a natural remedy arose from the events of the case. The evidence indicated that the 1997 will contained the last wishes of Ruth untainted by failing capacity and undue influence. Its remedial fitness was obvious; the judge's exercise of discretion was sound.
Conclusion. The evidence supported the judge's findings that the deeds of August 30, 2000, the restated trust of November 29, 2000, and the will of April 17, 2001, resulted from Ruth's impaired capacity and from Bruce's exercise of undue influence. The judge's implementation of the terms of Ruth's 1997 will as a final remedy was an exercise of sound equitable discretion .
We have considered also Bruce's arguments of procedural unfairness concerning, inter alia, the order of witnesses and the time available for direct and cross-examination. The trial was contentious and lengthy. We are satisfied that its duration of more than ten days afforded all parties a fair opportunity to submit evidence and that their posttrial submissions omitted no meaningful argument.
Under the terms of G.L.c. 215, § 45, “In contested cases before a probate court or before the supreme judicial court [and the later-created Appeals Court] on appeal, costs and expenses in the discretion of the court may be awarded to either party, to be paid by the other ... as justice and equity may require. In any case wherein costs and expenses ... may be awarded to a party, they may be awarded [to a party's] counsel....” In the equitable circumstances of this case, we disqualify the former trustee of the restated Ivy Ruth Adler Revocable Trust of November 29, 2000, in the person of attorney A. Silvana Giner and any successor, from eligibility for an award of fees and costs of any kind generated by the present appeal. This disqualification shall operate prospectively against requests for appellate fees and costs made upon any legal or equitable basis and submitted to either this court or the Probate and Family Court.
Corrected judgment affirmed.