Germain v. Girard

• Decision Date: 21 August 2008
• Docket Number: No. 07-P-811.,07-P-811.
• Citation: 72 Mass. App. Ct. 409,892 N.E.2d 754
• Court: Appeals Court of Massachusetts
• Parties: Paula GERMAIN v. Theresa A. GIRARD.

892 N.E.2d 754 72 Mass. App. Ct. 409 Paula GERMAIN
v.
Theresa A. GIRARD. No. 07-P-811. Appeals Court of Massachusetts, Worcester. Argued April 17, 2008. Decided August 21, 2008.

David A. Wallace, Framingham (David I. Shorr with him) for the defendant.

[892 N.E.2d 755]

Francis J. Russell, Worcester, for the plaintiff.

Present: RAPOZA, C.J., KAFKER, & GREEN, JJ.

GREEN, J.

72 Mass. App. Ct. 409

While hospitalized shortly before his death in November of 2004, George R. Girard (George) executed a last will and testament to replace his previous will, executed in 1983. At the time of his death, the most valuable asset in George's estate was thought to be the anticipated proceeds from a lawsuit he had filed seeking damages for personal injuries suffered from his exposure to asbestos.¹ Under the terms of the 2004 will,

72 Mass. App. Ct. 410

George left the bulk of his estate to a trust, which designated his wife, the defendant Theresa A. Girard (Theresa), as the principal beneficiary during her lifetime and one of his wife's daughters, the plaintiff Paula Germain (Paula), as the trustee.² Under the terms of the trust, Paula was to exercise discretionary control over distributions made from the trust for Theresa's benefit and held a significant remainder interest in any trust assets remaining upon Theresa's death. Though Paula's husband, Alan Germain (Alan), enjoyed George's trust and confidence, conducted all of the communications with the attorney who prepared the will, and stood (by virtue of Paula's remainder interest in the trust) to benefit from the will, the trial judge erroneously imposed on Theresa the burden of establishing her claim of undue influence in her challenge to the 2004 will. See Cleary v. Cleary, 427 Mass. 286, 293, 692 N.E.2d 955 (1998). We accordingly vacate the judgment approving the 2004 will and remand the case for further proceedings.

Background. George and Theresa married in 1971. In 1983, George executed a will that left his entire estate to Theresa outright, if she survived him.³ During their marriage, George generally handled their finances. Following George's retirement in 1994, George and Theresa began spending three to six months each year in Florida; while they were in Florida, Alan paid their household expenses using blank checks George had signed and left with him before departing for Florida. George did not have a close relationship with his own biological children, but was very close to Theresa's children. Alan and Paula were generous to George and Theresa, and made various substantial gifts to them over the years.⁴

In May 2004, George was diagnosed with stage IV mesothelioma, a deadly form of lung cancer that can be caused by exposure

72 Mass. App. Ct. 411

to asbestos. After receiving that diagnosis, George hired an attorney from Connecticut (whom Alan introduced to him) to initiate a lawsuit for his injuries from asbestos exposure. The attorney informed him that the suit could yield a significant settlement or judgment, possibly exceeding one million dollars. George discussed with Alan his wish to direct the proceeds of any such settlement or judgment to a trust for the benefit of Theresa

892 N.E.2d 756

during her life, with any trust assets remaining upon her death to be distributed in equal amounts of up to $10,000 to each of Alan and Paula's four children, and any amount remaining after those distributions to be divided between Paula (sixty-five percent) and her brother Anthony MacWilliams (thirty-five percent).⁵ Paula was to be named as trustee of the trust. George's other assets were to pass in equal shares to Theresa's three children, including Paula. George's four children from his previous marriage, who were beneficiaries of George's 1983 will (see note 3, supra), were to take nothing under the 2004 will or the trust.

At George's request, Alan (by electronic mail [e-mail], on November 5, 2004) contacted Attorney Scott Fenton of Bowditch & Dewey, a Worcester law firm that had previously represented Alan and Paula in a variety of personal and business matters, to prepare an estate plan with provisions for the anticipated proceeds from the lawsuit. Alan conducted all communications with Bowditch & Dewey concerning George's estate plan, initially with Fenton and later with Attorney Maryjo Hart (who prepared the estate planning documents). On November 10, 2004, Alan sent an e-mail to Fenton asking whether the documents were ready for signature, explaining that "George is going fast and I want him to sign." The November 10 e-mail furnished further instructions regarding the trust established for the proceeds from the asbestos lawsuit: "Paula Germain shall controll [sic] the trust and have full say in how the money is used to take care of George and Theresa Girard. Upon the death of George and Theresa the trust shall be liquidated and [thirty-five percent] goes to Anthony MacWilliams and the remainder to Paula Germain of course after the trust has paid all debts."

A short time thereafter, during the early morning hours of

72 Mass. App. Ct. 412

November 12, 2004, George became extremely short of breath and was taken to the hospital by ambulance. He was stabilized with oxygen, morphine, steroids, and antibiotics. Between 10:00 and 11:00 that morning, Attorney Hart arrived at the emergency room with the completed estate planning documents.⁶ Hart had neither met nor spoken with George or Theresa before arriving at the hospital on that occasion.⁷ After Hart explained the documents to George and Theresa, they signed them, in the presence of two witnesses from Hart's law office. George died just over two weeks later, on November 25, 2004.

On July 14, 2005, Theresa filed a petition to probate George's 1983 will. Paula entered an appearance in that action and filed an affidavit of objections. On or about August 23, 2005, Theresa filed a verified equity complaint seeking to have the 2004 will and related trust documents declared null and void. On September 2, 2005, Paula filed a petition to probate George's 2004 will.

The petitions for the probate of the two wills were tried by a probate...