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The T&E Litigation Update is a recurring column summarizing recent trusts and estates case law. If you have question about this update or about T&E litigation generally, please feel free to e-mail the author by clicking on his name above.
Farrell v. McDonnell
In Farrell v. McDonnell, Case No. 11-P-589 (May 11, 2012), the Appeals Court reversed a decree of the probate court disallowing a will on the ground that it was improperly executed.
The co-executors and the testatrix went to a bank for the execution of the testatrix’s will. One of the co-executors handed the will to a notary at the bank and then stood off to the side. At trial, the notary could not recall the circumstances surrounding the execution, but she identified her signature and notary seal on the will and testified as to her regular practice, which was to verify a testatrix’s identity, have her read the attestation and notarization clause aloud, and have her sign the will, after which the notary would sign in the notary block. Then, the notary would call two witnesses, one at a time, to witness the will in the testatrix’s presence.
Like the notary, neither of the witnesses could recall the execution, but they testified as to their regular practices and identified their signatures on the will.
Based on the testimony, the probate court found that the testatrix signed her will in the presence of the notary, and thereafter that the witnesses affixed their signatures to the will in the testatrix’s presence but without having seen her sign the will and without having spoken with her. Under these facts, the probate court ruled that the execution was improper because the testatrix had neither expressly nor implicitly acknowledged her signature on the will to the witnesses.
The question on appeal was whether, on these facts, an inference can properly be drawn that the testatrix acknowledged her signature to the witnesses. The Appeals Court answered this “close question” in the affirmative, holding that the testatrix had given her implicit acknowledgment to execute her will by (1) being present when the co-executor handed the will to the notary, (2) reading the attestation clause aloud, and (3) signing the will in the notary’s presence. The notary then carried out the testatrix’s “declaration” to execute her will according to the statutory formalities by obtaining the two witness signatures, and the testatrix sufficiently acknowledged her signature to the witnesses by remaining seated and watching, without interruption, as each of the witnesses signed.
In support of this holding, the Court explained that a testatrix’s acknowledgment of a previous signature to witnesses is equivalent to signing the instrument in their presence.
Murphy v. Prescott
In Murphy v. Prescott, 81 Mass. App. Ct. 1131 (Apr. 27, 2012), a decision issued pursuant to Rule 1:28, the Appeals Court addressed objections to the reasonableness of legal fees incurred in connection with the administration of an estate.
The decedent died intestate in 2005. His estate was valued at more than $3 million and was comprised of many (over 400) stocks and bonds, retirement accounts, savings accounts and checking accounts. The administrator hired an accountant and a lawyer to assist him in marshalling the assets and settling the estate. Marshalling the assets proved difficult because the decedent kept no records. In the end, the administrator paid himself a fee of $20,000, paid $10,500 to the accountant, and paid $86,000 to the lawyer, who had entered into a fee agreement with the administrator under which the lawyer was to charge an hourly rate of $350.
A number of heirs objected to the account on which these fees were disclosed. A trial ensued, the focus of which was the reasonableness of the $86,000 in legal fees. In particular, the objectors argued that the lawyer failed to maintain contemporaneous records of his time. The probate court overruled the objections and allowed the account, concluding that the legal fees were reasonable in light of the complexity of the estate. In so concluding, the probate court noted that the total of the legal fees was less than 3% of the value of the estate.
The Appeals Court affirmed, explaining that although it would not have been unreasonable to reduce the lawyer’s fees where he did not maintain contemporaneous time records, such a reduction is not required. The lawyer had testified at trial about the extensiveness of his work, and the probate court’s crediting that testimony was not an abuse of discretion.
Kaiden v. Zimonja
In Kaiden v. Zimonja, 81 Mass. App. Ct. 1131 (Apr. 27, 2012), a decision issued pursuant to Rule 1:28, the Appeals Court addressed the sufficiency of allegations of undue influence.
The decedent executed a will, trust, and deed pursuant to which she left a share of her assets, including her home, to a church. The defendant, who is an attorney and elder at the church, was named as the executor and successor trustee, and the decedent also gave him a power of attorney some years later. After the decedent’s death, her heirs brought suit against the defendant, claiming among other things that he had unduly influenced the decedent. The heirs alleged that the decedent’s estate plan was inconsistent with her prior representations to them, that the church’s requests for money made her uncomfortable, and that she lacked sufficient intellectual acuity to understand the import of the documents.
The defendant moved to dismiss the undue influence and other claims, which included claims for breach of fiduciary duty, breach of a confidential relationship with the decedent, breach of a promise to the decedent to care for her and enable her to remain at home, tortious interference with expectancy, and legal malpractice. The superior court granted the motion to dismiss, characterizing the claims as speculative, and the Appeals Court affirmed.
Regarding the undue influence claim, the Appeals Court held that the heirs had failed to state a claim upon which relief could be granted because there was no allegation that the defendant had drafted the estate planning documents or had advised the decedent with respect to them (“the most that can be said from the complaint is that the defendant notarized the decedent’s signature on her will, trust, and deed”), that the defendant had a relationship with the decedent such that he was able to and did influence her estate planning, and that the defendant had profited personally. The Court noted as significant that the heirs had sued the defendant in his individual capacity, failing to name the church as a defendant or to allege that the defendant was responsible for the church’s actions and inactions.
Regarding the tortious interference with expectancy claim, which requires a showing that a defendant intentionally interfered with a plaintiff’s expectancy in some unlawful way, the Court held that “[i]n the absence of facts suggesting the defendant advised the decedent as to her estate plan or sought to influence her gifting in any way, much less an unlawful way, the claim correctly was dismissed.”