John Sullivan was born in May 1912. He married his wife, Odette, in 1956. John and Odette did not have any natural born children of their own but adopted Odette’s sister’s children, Annabelle and Valerie. In 1995, Annabelle left the home after a falling-out and never reconciled with John or Odette. In 1995, John and Odette executed new wills disinheriting Annabelle. Valerie was to inherit the entire estate should there not be a surviving spouse. Valerie remained in John and Odette’s home until in 2000 when Valerie and Odette had a falling-out. Odette banished Valerie from the home. John would continue to sneak phone calls to Valerie.
Odette was diagnosed with melanoma in 2001. Odette contacted the same attorney who had drafted their 1995 wills and asked that new wills be prepared that disinherited both the daughters and leaving the estate to a mutual friend, Paula Miller, and Susan Paine was named alternate Executrix. New wills were executed on February 1, 2003, February 3, 2004, and June 26, 2004, each making minor changes to the residuary beneficiaries.
For all the wills dated after 2000, Odette had directed the attorney who the beneficiaries should be. The attorney spoke only once to John by telephone. John only confirmed that he was in agreement with the instructions given by Odette. The attorney did not meet with the Sullivans to execute the wills. Rather, the Sullivans executed their wills at their local bank. The bank employees who witnessed the 2002-2004 wills testified that John did not appear confused or forced to sign but that they did not have any discussions with John as to what the documents contained.
Now here is what the attorney did not know. John suffered from some degree of dementia during 2002-2004. A neurology note dated June 25, 2001, concluded that John had “significant frontal dysfunction with poor insight and judgment, difficulty changing set and mild recent memory difficulties. In other medical notes, it was mentioned that before January 2001, john had managed their financial affairs, but that he had become “confused” about the taxes and thereafter Odette took over the finances. In addition, John was receiving personal care assistance when his wife was at work. By July 3, 2003, John had a personal care attendant 24 hours a day. On August 3, 2004, his primary care physician signed a document saying that John suffered from senile dementia and was unable to live alone. When Odette died July 23, 2004, Valerie began caring for John. The attorney testified that had he known of John’s illness, he would have had John submit to a medical evaluation to determine if John had capacity.
Upon John’s death, Valerie objected to the wills claiming undue influence on John by Odette and in the alternate that John lacked testamentary capacity. While the court found there was no undue influence, it did hold that John lacked capacity to execute the wills after 2000. As there was some evidence of lack of capacity, the presumption of sanity was lost and the burden to prove capacity shifted to the party (aka proponent) seeking to enforce the will and the proponent had prove by a fair preponderance of the evidence that John was of sound mind and had testamentary capacity when the instrument was executed. “That burden is met by a showing that it is more probably than not that, at the time of execution of the will, ‘the testator [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. It requires freedom from delusion which is the effect of disease or weakness and which might influence the disposition of his property. And it requires ability at the time of execution of the alleged will to comprehend the nature of the act of making a will.’” Ibid., quoting from Goddard v. Dupree, 322 Mass. 247, 250 (1948).
The lower court had also determined that the attorney had acted with the degree of care and attention appropriate to the issue of capacity. The Appeals court held that was plain error as the attorney did nothing to determine John’s capacity after not hearing from John for a number of years and drafting the will because John had stated on the phone that he wanted what Odette wanted. The attorney had made no inquires as to John’s general health.
The ultimate result was that all the wills executed after 2000 were held to be invalid. The 1995 will was thereby revived and offered for probate. Valerie will receive her inheritance.
Margaret L. Cross-Beliveau, Esq., LL.M.
Beliveau Law Group: Massachusetts | Florida | New Hampshire
The attorneys at the Beliveau Law Group provides legal services for estate planning (wills and trusts), Medicaid (planning and applications), probate (estate and trust administration), business law (formation and operation), real estate (residential and commercial), taxation (federal and state), and civil litigation (in connection with these practice areas). The law firm has offices and attorneys in Naples, Florida; Boca Raton, Florida; Danvers, Massachusetts; Waltham, Massachusetts; Quincy, Massachusetts; Manchester, New Hampshire and Salem, New Hampshire.
