falzone v. sa yen - massnaela · 2016. 4. 30. · june 28, 2011, christopher m. falzone...
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FALZONE V. SA YEN, 14-P-773 (Mass. App. Ct. Jul 06, 2015) ... Page 1of7
COMMONWEALTH OF MASSACHUSETTS APPEALS COURT
14-P-773 (Mass. App. Ct. Jul 06, 2015)
ffi FALZONE V. SA YEN
MASS. APP. • COMMONWEALTH OF MASSACHUSETTS APPEALS COURT • 14-P-773
07-06-2015 • CHRISTOPHER M. FALZONE, EXECUTOR, V. DAVID C. SAYEN & ANOTHER .
By the Court (Milkey, Carhart & Massing, JJ.), Clerk
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended
by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not
fully address the facts of the case or the panel's decisional rationale. Moreover, such 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 prec
edent. See Chace v. Curran, 71 Mass. App. Ct. 258 (/case/chace-v-curran-1) , 260 nA
(2008).MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After suffering from dementia for years, William A. Guthrie, died on June 4, 2011. Guthrie never
married, and had no children. At issue is the validity of the will he executed on May 29, 2009. On
June 28, 2011, Christopher M. Falzone (proponent), the attorney nominated to serve as execu
tor, filed a petition to probate the will. Two of Guthrie's nephews, David and George Sayen,
sought to oppose the will, and each filed an affidavit of objections.3 On May 16, 2012, the propo
nent moved•2for summary judgment, requesting that the judge admit the will to probate and or
der an award of costs pursuant to G. L. c. 215, § 45. Summary judgment was allowed and, in a
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subsequent order; the judge awarded the estate $148,548.44 in attorney's fees and costs. This ap
peal followed.4 For the reasons below, we are•3constrained to conclude that summary judgment
should not have been allowed. Accordingly, we vacate the decree and orders.
3. The proponent filed a motion to strike both of the contestants' affidavits, which was al
lowed as to the affidavit of David Sayen (David) but otherwise denied. The contestants argue
on appeal that it was error for the judge to strike David's affidavit. Most of the averments con
tained in David's affidavit, however, were either irrelevant to the issue of capacity or other
wise not based on his personal knowledge. We discern no error in the judge's partial allow
ance of the motion to strike. However, the motion to strike was allowed only in part, and the
proponent has not otherwise argued that David lacks standing in the will contest. Thus, the
effect of the judge's ruling on the motion to strike was that "the will contest would proceed."
O'Rourke v. Hunter, 446 Mass. 814, 818-819 (/case/orourke-v-hunter-2#p818) (2006) (ob
serving that motions to strike are no longer procedurally required after the adoption of sum
mary judgment in will contests). David thus remains a party to the proceedings. To the extent
the judge struck David's "appearance" (and not just his affidavit), this was error in the circum
stances of this case (where George and David, represented by the same counsel, raised aligned
objections to the will, and George's affidavit was deemed sufficient to allow the case to pro
ceed to discovery).
4. The proponent sought and received an award of attorney's fees and costs in his motion for
summary judgment "for all claims this [c]ourt finds frivolous and/or advanced in bad faith, or
as justice and equity may require under G. L. c. 215, § 45 .... "The order required the contest
ants either to pay their respective shares of the award into an escrow fund or post bonds for
the amounts during the pendency of the appeal. The proponent represents in his appellate
brief that, as of the date the appeal was docketed in this court, the contestants had neither
paid any funds into escrow nor posted bonds pursuant to the order. The contestants do not
appear to challenge the accuracy of this representation, although they do represent that David
has since complied with the order and that a hearing has been held relating to George's ability
to pay. The proponent therefore urges that we must dismiss this appeal. We do not agree. The
proponent's reliance, in support of this position, on an unpublished memorandum and order
issued by a panel of this court is misplaced. In the case cited by the proponent, the appellant
only challenged the fee award on appeal, not the underlying judgment.
Background.s In 2006, Guthrie was admitted to Mount Auburn Hospital. He required one-on
one care and supervision because he "tend[ ed] to wander about and ha[ d] severe memory prob
lems." Doctors at New England Medical Center later diagnosed him with "fairly progressive de
mentia" and recommended his placement in a long-term care facility. Guthrie was placed at
Sherrill House, a psychiatric care facility, where his primary care physician diagnosed him as
"psychotic" and suffering from dementia of the Alzheimer's type. The physician at Sherrill House
found that Guthrie frequently experienced hallucinations, suffered from paranoid delusions, and
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noted that Guthrie could not remember where he lived or events that had taken place minutes
earlier. She further noted that Guthrie "confabulated"6 and employed humor to compensate for
his mental deficits.
5. We recite the facts that appear from the summary judgment record to be uncontested, re
serving certain facts for further discussion. Maimonides Sch. v. Coles, 71 Mass. App. Ct. 240,
242 (/case/maimonides-sch-v-coles-1#p242) ( 2008).
6. "Confabulation" is a medical term of art, defined as "[t]he making of bizarre and incorrect
responses, and a readiness to give a fluent but tangential answer, with no regard whatever to
facts, to any question put .... " Stedman's Medical Dictionary 428 (28th ed. 2006).
Guthrie's brother-in-law, Lucien Yokana, acted as Guthrie's attorney-in-fact pursuant to a dura
ble power of attorney. Im42006, he arranged for Guthrie's transfer to Rogerson House, a skilled
nursing home specializing in dementia and memory loss, where Guthrie resided until his death.
Once he had moved to Rogerson House, Guthrie underwent a series of evaluations at McLean
Hospital in late 2006 and early 2007. The physician at McLean observed that Guthrie was a "lim
ited historian with limited insight into his incapacitated state," and noted that he heard voices,
conversed with nonexistent people, suffered from hallucinations, had difficulty recalling recent
events and recognizing people, and was unable to perform .nany activities for himself. The
McLean physician summarized Guthrie's condition as "moderately severe dementia that in
cludes rapid forgetting, executive dysfunction, visual hallucinations, agitation and possible de
pressed mood."
Dr. Ilene Crofton, a physician who treated Guthrie at Rogerson House, submitted an affidavit in
which she averred that a new regimen of medications begun in February, 2007, caused Guthrie's
condition to be "stabilized.''7 However, she conceded in her deposition that any improvements
would have been only to·5some aspects of Guthrie's mental condition (e.g., his psychosis) and
that Alzheimer's dementia itself does not improve over time.8
7. Although the proponent offers Dr. Crofton's affidavit as proof that Guthrie remained stable
throughout his stay at Rogerson House, her affidavit is not entirely sanguine with respect to
Guthrie's condition. She noted that Guthrie's stabilization was followed by "some mood
changes and destabilization" after he underwent surgery in late 2007, and Dr. Crofton's last
recorded medical note from February 3, 2009, described his condition as "stable" but exhibit
ing a "mild paranoid edge."
8.
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Dr. Crofton also acknowledged that Guthrie lacked the capacity to consent to his own medi
cal decisions and, at least partly due to his dementia, would not have been able to "focus" on
information such as the potential side effects of his medications.
Discussion. To prevail on summary judgment, the moving party must show that "viewing the ev
idence in the light most favorable to the nonmoving party, all material facts have been estab
lished and the moving party is entitled to a judgment as a matter of law." Sullivan v. Brookline,
435 Mass. 353, 356 (/case/sullivan-v-town-of-brookline-2#p356) (2001) (internal citations and
quotations omitted). A will proponent moving for summary judgment must "affirmatively
demonstrate[] that the contestantO ha[ s] 'no reasonable expectation of proving an essential ele
ment of [the] case."' Maimonides, 71 Mass. App. Ct. at 249 (/case/maimonides-sch-v
coles-1#p249) , quoting from O'Rourke v. Hunter, 446 Mass. 814, 828 (/case/orourke-v-hunt-
er-2#p828) (2006). Our review is de novo. Maimonides, supra at 250-251.
With respect to the issue of testamentary capacity,9 the proponent must show, by a preponder
ance of the evidence, that the testator
*6
9. The contestants argue that the judge erred in not considering their claim, made for the first
time in opposition to the proponent's motion for summary judgment, that the will was invalid
on the ground of undue influence exerted by Lucien Yokana. The contestants' affidavits did
not raise the issue of undue influence as required by rule 16 of the Rules of the Probate Court
(2006) and G. L. c. i90B, § 1-401(~-(f), inserted by St. 2008, c. 521, § 9, which superseded rule
16. Cf. Aronovitz v. Fafard, 78 Mass. App. Ct. 1, 8 (/case/aronovitz-v-fafard-3#p8) · (2010)
(failure to raise affirmative defense in first responsive pleading generally constitutes a waiver
of the defense).
"[was able] to understand and carry in mind, in a general way, the nature and situation of his property
and his relations to those persons who would naturally have some claim to his remembrance[,] . ..
freedom from delusion which is the effect of disease or weakness and which might influence the dispo-
sition of his property[,] [a ]nd ... ability at the time of execution ... to comprehend the nature of the
act of making a will."
Palmer v. Palmer, 23 Mass. App. Ct. 245, 250 (/case/palmer-v-palmer-41#p250) (1986), quoting
from Goddard v. Dupree, 322 Mass. 247, 250 (/case/goddard-v-dupree#p250) (1948).
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Viewing the record in the light most favorable to the contestants, we conclude that there re
mains a genuine dispute of material fact with respect to the issue of testamentary capacity. We
disagree with the proponent's argument that the contestants' evidence consisted of only "gen
eral statements about the [testator's] health, including [his] mental health." O'Rourke v. Hunter,
446 Mass. at 827 (/case/orourke-v-hunter-2#p827) . To the contrary, the evidence creates a
factual dispute with respect to the specific question of whether "the cognitive deficits associated
with Alzheimer's disease manifest[ ed] themselves in the loss of abilities that bear on testamen
tary capacity." Paine v. Sullivan, 79 Mass. App. Ct. 811, 818 (2011).
•7
The contestants offered the affidavit of Dr. James Beck, a board certified forensic psychiatrist.10
Based on his review of Guthrie's medical and psychiatric records through the date of his death,
Dr. Beck opined that, to a reasonable medical certainty, Guthrie lacked the capacity to execute a
will on May 29, 2009. He concluded that Guthrie suffered from dementia with short-term
memory deficits, confusion, and "impaired mental function" throughout the relevant period,
from November, 2006, until his death in June, 2011, and that these deficits deprived Guthrie of
the capacity to execute a will. Although Dr. Beck's affidavit is relatively terse, it must be read
against the rich backdrop of medical records on which it is based. As summarized above, the
multiple medical and psychiatric evaluations from New England Medical Center, Sherrill House,
and McLean Hospital provided support for the contestants' position that Guthrie's dementia af
fected his lucidity, memory, ability to pay attention, and ability to grasp information. Although,
as the judge emphasized, the psychiatric evaluations on which Dr. Beck relied were not generat
ed contemporaneously with the will·ssigning, the proponent's own expert, Dr. Crofton, acknowl
edged that the dementia from which Guthrie long had suffered would not have improved with
time. In sum, Dr. Beck's affidavit was well grounded in the medical record, and the judge was re
quired to credit this evidence for purposes of summary judgment. See Guardianship of Phelan,
76 Mass. App. Ct. 742, 756 (/case/guardianship-of-phelan#p756) (2010).
10. We disagree with the judge's conclusion that Dr. Beck was not allowed to give "a legal
opinion on the ultimate legal issue in the case," namely, whether the testator had testamen
tary capacity. As an "expert in the knowledge and treatment of mental diseases," it was per
missible for Dr. Beck to offer an opinion about the testator's testamentary capacity. Maimoni
des, 71 Mass. App. Ct. at 250 n.8, quoting from May v. Bradlee, 127 Mass. 414, 421 (1879) .
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We note that the-proponent put forward substantial evidence supporting his claim that Guthrie
had testamentary capacity on the date of the will signing. In addition to the affidavit submitted
by Dr. Crofton stating her opinion that Guthrie had testamentary capacity, three close friends of
Guthrie submitted affidavits in connection with the summary judgment motion, and they unani
mously felt that Guthrie was mentally lucid. In their affidavits, the friends eloquently described
their regular encounters with Guthrie while he resided at Rogerson House close in time to the
will signing. It may well be that the opinion of Dr. Beck is "at best a toehold" to create a fact is
sue for trial. Marr Equipment Corp. v. I.T.O. Corp. of New England, 14 Mass. App. Ct. 231, 235
(/case/marr-equip-corp-v-ito-corp-new-england#p235) (1982). "A toehold, however, is enough
to survive a motion for summary judgment." Ibid.11 •9Consequently, we are constrained to con-
elude that summary judgment should not have been allowed. Nothing in this memorandum and
order should be interpreted as expressing a view on how this matter should be resolved at trial.
11. The proponent sought an award of attorney's fees and costs in his motion for summary
judgment under G. L. c. 215, § 45. Lest our views be misunderstood, we note that we are sym
pathetic to the reasons that appear to have animated the judge's fee award. It is not clear what
George stands to gain from contesting Guthrie's 2009 will since, even if he were to prevail, he
was not provided for under Guthrie's prior 1996 will (and, at least on the record before us, it
appears highly unlikely that he would prevail in a challenge to the 1996 estate plan). Nonethe
less, because of our conclusion that the judge erred in allowing summary judgment, we vacate
the award. "[A ]ny award made under [G. L. c. 215, § 45] ... depends on the vitality of [the]
judgment." Ben v. Schultz, 47 Mass. App. Ct. 808, 814 (/casejben-v-schultz-1#p814) (1999).
Depending upon the outcome of the proceedings on remand, the Probate Court may award
fees and costs to the prevailing party. See First Natl. Bank v. Sullivan, 4 Mass. App. Ct. 414,
420 (/case/first-national-bank-of-boston-v-sullivan-1#p420) (1976) .
Conclusion. The "Decree and Order of Formal Probate" entered on July 25, 2013, is vacated. The
corrected order awarding fees and costs entered on February 6, 2014, is vacated. The case is re
manded to the Probate and Family Court for further proceedings consistent with this memoran-
dum and order.12
12. The proponent's request for appellate attorney's fees and costs under G. L. c. 215, § 45, is
denied.
So ordered.
By the Court (Milkey, Carhart & Massing, JJ.13 ),
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