falzone v. sa yen - massnaela · 2016. 4. 30. · june 28, 2011, christopher m. falzone...

FALZONE V. SA YEN, 14-P-773 (Mass. App. Ct. Jul 06, 2015) ... of7

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

https://casetext.com/case/falzone-v-sayen 9/9/2015

FALZONE V. SAYEN, 14-P-773 (Mass. App. Ct. Jul 06, 2015) ... of7

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.



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).



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) .



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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falzone v. sa yen - massnaela · 2016. 4. 30. · june 28, 2011, christopher m. falzone...

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