Adler v. Adler
| Decision Date | 07 June 2013 |
| Docket Number | No. 10–P–1760.,10–P–1760. |
| Citation | 988 N.E.2d 876,83 Mass.App.Ct. 1135 |
| Court | Appeals Court of Massachusetts |
| Parties | Davina R. ADLER & others v. Bruce W. ADLER (and a companion case ). |
OPINION TEXT STARTS HEREBy the Court (BERRY, COHEN & SIKORA, JJ.).
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.3
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.4 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.5 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.
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.6
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.7 We affirm.
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 1973.8 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.
1. Original plan. In January, 1989, with the aid of their long-time counsel, Robert Luick,9 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.10 Under the 1989 will, Ruth left the New Hampshire lake homes to “my surviving issue by right of representation, as tenants in common.” 11
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).12 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),13 Ruth often voiced a desire to die and rejoin Harold.
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.14
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, 2001,15 in essence:
(i) gave Bruce all her tangible personal property, or her grandchildren if Bruce should not survive her; 16
(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.17
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, 2003.18 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.19
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” 20 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.
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 2006.21
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....
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