Opinion
No. 12–P–357.
2013-08-29
In the Matter of the ESTATE OF Elizabeth B. LACEY.
By the Court (COHEN, SIKORA & SULLIVAN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
This appeal presents a classic will contest. On May 16, 2007, William C. Hale, Sr., filed a petition for probate of Elizabeth B. Lacey's will dated May 8, 2001 (Hale will), which left the entire estate to Hale. On May 30, 2007, Joan R. McGuire filed a. petition for probate of Lacey's will dated September 26, 2000 (McGuire will), which left the entire estate to Joan and three of her children (collectively, McGuire family). On September 26, 2007, the McGuire family filed an objection to the Hale will; on October 4, 2007, Hale filed an objection to the McGuire will. The two cases were consolidated for trial by the Probate and Family Court. The judge approved and allowed the petition for probate of the McGuire will and dismissed the petition for probate of the Hale will. Hale appeals, and we affirm.
We sometimes use first names to minimize confusion.
Background. The evidence permitted the judge to find the following. Lacey was born on August 3, 1917, and died on May 1, 2007. At the time of her death, Lacey had no surviving spouse, no surviving children, and no heirs. For most of her life, however, she was integrally involved with Joan's family. Joan's parents had been friends and neighbors of Lacey in Lawrence. Joan first met Lacey as a young child and became close friends with her as she got older. Until her death, Lacey regularly attended Joan's family's holidays, birthdays, weddings, barbecues, and other gatherings. Joan and her children had always referred to Lacey as “Aunt Betty.” As Lacey got older, she became increasingly dependent on Joan and her children for errands, shopping, and transportation. Until her death, Joan and her children regularly visited with her, talked to her on the telephone, performed errands for her, and took her to Bingo events.
On September 26, 2000, Lacey executed her first will, drafted by Attorney Robert Kelley. It bequeathed $20,000, each, to Joan's daughters Denise Clegg Curtis and Diane Forrester, $10,000 to Joan's son James Wareing, and left the remainder of her estate to Joan.
In November of 2000, Lacey called Hale and asked him whether he could fix her boiler. Hale and his son George went to her home and repaired the boiler. Before this encounter, Hale's contact with Lacey had consisted of occasional exchanges of pleasantries. In the months that followed, Hale began bringing Lacey lunch almost daily and taking her out to lunch on a weekly basis. The two were usually alone during these lunches.
Lacey had a dating relationship with Hale's father for about ten years in the 1950s.
On May 8, 2001, Lacey executed a second will, also drafted by Kelley. Kelley was also Hale's attorney, and a long-time friend and drinking companion. Hale drove her to Kelley's office. The will devised and bequeathed Lacey's entire estate to Hale or, alternatively, to his sons, George and William, Jr. At the time of execution, Lacey had virtually no knowledge of Hale's sons.
Lacey had met George once when he helped his father fix her boiler and had never met William, Jr.
From February 2, 2005, through September 5, 2007, Hale endorsed and cashed approximately twenty of Lacey's pension checks. From April 30, 2007, through November 20, 2007, he forged Lacey's signature on nineteen checks issued from her Sovereign Bank checking account. When asked about these checks at trial, he invoked his privilege against self-incrimination.
Discussion. 1. Validity of the judge's findings. Hale first contends that we should not apply the “clear error” standard of Mass.R.Civ.P. 52(a), as amended, 423 Mass. 1408 (1996), to the judge's findings of fact because the judge adopted verbatim many of the findings of fact proposed by the McGuire family. First, although the practice of adopting a party's proposed findings of fact verbatim has been criticized, we do not reject such findings as long as they are supported by the evidence. See Cormier v. Carty, 381 Mass. 234, 237–238, 408 N.E.2d 860 (1980); Commonwealth v. DeMinico, 408 Mass. 230, 238, 557 N.E.2d 744 (1990). Here, the evidence firmly supports the judge's material findings.
Second, the judge did not engage in wholesale verbatim adoption of the McGuire family's proposed findings. Of the 225 proposed findings submitted by the McGuire family, the judge ultimately adopted eighty-three. Further, although many of the findings resembled those proposed by the McGuire family, only six matched verbatim; many others resembled Hale's proposed findings. Importantly, the judge provided her own conclusions of law and emphatic reasoning. Overall, the judge's findings and conclusions clearly exhibit independent judgment and a “badge of personal analysis.” Cormier v. Carty, supra at 237, 408 N.E.2d 860.
Finally, the judge's findings of fact are not “clearly erroneous .” A finding is clearly erroneous only if there is no evidence to support it, or if, “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.” Building Inspector of Lancaster v. Sanderson, 372 Mass. 157, 160, 360 N.E.2d 1051 (1977), quoting from United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746 (1948). As noted above, the judge's findings had ample evidentiary support. They rested largely on her assessment of the credibility of the witnesses. In a bench trial, the credibility of witnesses is “quintessentially the domain of the trial judge, in which the judge's assessment is close to immune from reversal on appeal except on the most compelling of showings.” Johnston v. Johnston, 38 Mass.App.Ct. 531, 536, 649 N.E.2d 799 (1995). As a result, we fully respect the judge's findings of fact.
For example, the judge concluded that Kelley's testimony that Lacey changed her will because she disliked Curtis and Forrester was not “in the least credible.”
2. Proof of undue influence. Hale next argues that the McGuire family did not satisfy their burden of proving undue influence. We disagree. A contestant alleging undue influence must prove four elements: “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.” O'Rourke v. Hunter, 446 Mass. 814, 828, 848 N.E.2d 382 (2006). Hernon v. Hernon, 74 Mass.App.Ct. 492, 497, 908 N.E.2d 777 (2009).
(a) Unnatural disposition. At least two elements support a finding of unnatural disposition. First, Lacey made an alternate devise and bequest of all her real and personal property to Hale's sons, without any meaningful contact with them. Second, she completely excluded from any disposition the McGuire family with no explanation. Significant evidence portrayed them as Lacey's lifelong intimate friends and effectively her only family. See Popko v. Janik, 341 Mass. 212, 213, 215, 167 N.E.2d 853 (1960) (finding undue influence where the principal effect of a new will was to deprive of an inheritance a relative who had developed “a relationship of love and affection as might exist between a parent and foster son” with the decedent, in favor of the decedent's caretaker). See also Erb v. Lee, 13 Mass.App.Ct. 120, 122–123, 125–126, 430 N.E.2d 869 (1982) (noting drastic change between first will, which left decedent's estate to her grandson, and second will, which left estate to her housekeeper).
(b) Susceptibility. Sufficient evidence established Lacey's susceptibility to undue influence. At the time when she executed the will in question, she was eighty-three years old. She was frail, declining in health, and largely dependent on others for care, errands, and transportation. See Campbell v. Lima, 212 Mass. 11, 13, 98 N.E. 610 (1912) (“It was for the trial judge to say, taking into account the [decedent's] age and her general condition of health, her mental constitution, and her dependence upon someone for care and attention, whether she could or could not be unduly influenced”). Hale's provision of services to Lacey and his daily lunches with her in the months leading up to the execution of the second will could have rendered her susceptible to his influence. Finally, Lacey's meeting with Attorney Anthony DiFruscia on July 3, 2002, during which she gave him a copy of the September, 2000, will and identified it as her only will, suggested either that she was not aware of the second will or did not understand its importance.
(c) Opportunity. Hale's frequent private lunches and visits with Lacey provided him with an opportunity for influence. Lacey's attorney, Kelley, lacked the required undivided loyalty owed to his client. Kelley, who was also Hale's attorney and long-time friend, made little or no inquiry into Lacey's reasons for changing her will or her susceptibility to influence in these unusual circumstances. See Logotheti v. Gordon, 414 Mass. 308, 311–312, 607 N.E.2d 1015 (1993) (lawyer has a duty to be reasonably alert for indications of undue influence and to make reasonable inquiry if an indication arises). As a result, Lacey lacked the protection from undue influence which a loyal and diligent attorney would normally provide.
(d) Exercise. As explained above, the provisions of the second will and the circumstances surrounding its execution were suspect: Hale was friends with Kelley and drove Lacey to Kelley's office; he had little prior contact with Lacey other than the lunches in the months leading up to execution of the second will; and the will named virtual strangers as alternate beneficiaries. The judge also expressly found that Kelley's explanation for the creation of the new will was not credible. “Undue influence may be inferred from the nature of the testamentary provisions accompanied by questionable conditions, as for example when disproportionate gifts or benefactions to strangers are made under unusual circumstances.” Neill v. Brackett, 234 Mass. 367, 369, 126 N.E. 93 (1920).
Further, Hale appears to have engaged in a broader scheme to misappropriate Lacey's assets. First, he endorsed and cashed approximately twenty of Lacey's pension checks during the months leading up to and following her death. Second, for about six months after her death, he forged her signature on nineteen checks issued to him from her checking account. Finally, he invoked his privilege against self-incrimination when asked about these checks. That choice permitted the judge to draw any reasonable adverse inferences in this civil litigation. See Kaye v. Newhall, 356 Mass. 300, 305–306, 249 N.E.2d 583 (1969); Frizado v. Frizado, 420 Mass. 592, 596, 651 N.E.2d 1206 (1995). See also Baxter v. Palmigiano, 425 U.S. 308, 318, 96 S.Ct. 1551, 47 L.Ed.2d 810 (1976).
In sum, the judge received abundant evidence for her finding that Hale had exercised undue influence over Lacey.
3. Delay of judge's decision. Hale claims that the two-year delay between trial and delivery of the judge's decision deprived him of due process of law. The claim is meritless. No indication has arisen that he suffered any prejudice from this delay. See Campiti v. Commonwealth, 417 Mass. 454, 456–457, 630 N.E.2d 596 (1994) (significant posttrial delays and twenty-nine month delay in producing trial transcripts not a violation of due process where there was no showing of prejudice). Hale possessed no lawful interest in Lacey's estate; he therefore suffered no deprivation of any kind, let alone a deprivation of a due process interest.
In no. ES07P1268EP1, the judgment dismissing the petition for probate of the will dated May 8, 2001, is affirmed.
In no. ES07P1268EP2, the decree allowing the will dated September 26, 2000, is affirmed.