Section Review

In the matter of Hawthorne v. Brady, Middlesex Probate and Family Court (Docket No. 19E0057) (2024), the plaintiff survived summary judgment as to counts of undue influence and lack of capacity, even where the court applied the lower standard of testamentary capacity and found that the burden of proof did not shift to the defendant. One may posit that the plaintiff presented an abundance of sufficient facts as circumstantial evidence and perhaps, in some instances, direct evidence. The remedy of summary relief is to weed out frivolous claims, but indeed, it is not intended to foreclose the opportunity for trial when relevant facts are in dispute. The matter is an illustrative narrative of footing, balance, and sustaining the disputed hold of material facts.

Background facts

Richard Kalbroy, at the age of 86, signed a quitclaim deed with the reservation of a life estate in his home and the remainder interest to John Brady, the defendant, for consideration of $1. Brady was not related to the decedent and had a limited relationship with him, consisting of giving him rides to church, the store and the pharmacy. He also gave him a television set and brought food to him on holidays. The defendant was present at the decedent’s home during his execution of the deed. The defendant was involved in the engagement of the two attorneys who conducted the signing. He contacted a family friend for assistance with the deed transfer, and the friend then arranged for the presence of the two attorneys from a firm where the defendant’s brother had previously worked. Neither of the attorneys had met with the decedent prior to the date of the execution.

Within the same month of the execution of the deed, a wellness check was conducted at the decedent’s home, resulting in a report that the home was in “horrible” condition. Minuteman Senior Services reviewed the situation. The decedent was hospitalized shortly thereafter, within the same month as the execution of the deed. The decedent’s neighbor, who had known him for a long time, provided evidence that the decedent’s “decision-making wasn’t great,” that he had exhibited indications that he was deteriorating, and that he had signed papers with the defendant without his own attorney present. Another neighbor reported that the decedent told her that someone was trying to take his house when he died. Medical staff provided evidence that the decedent was isolated, depressed and confused; that he lacked capacity; and that the decedent stated that he was “tricked” into signing a deed.

Procedural background

The plaintiff, in his capacity as guardian and conservator for Kalbroy, filed an equity complaint against the defendant, Brady, with the following counts: fraud/deceit (count I), constructive trust (count II), undue influence/coercion (count III), lack of capacity (count IV) and fraudulent conveyance (count V). The plaintiff amended the complaint to add a sixth count to determine title (count VI). Thereafter, following the death of Kalbroy (“the decedent”), the plaintiff, in his capacity as personal representative of the estate, was substituted as the plaintiff. The defendant filed a motion for summary judgment. The court allowed the motion in part and denied the motion in part. Summary judgment was denied as to counts III (undue influence) and IV (capacity). The court allowed the motion as to the other four counts.

Summary judgment

The moving party of a summary judgment motion is entitled to judgment in their favor, as a matter of law, if the evidence presented indicates that there is no genuine issue as to any material fact.¹ In order to meet this standard, the moving party must demonstrate that there is no reasonable expectation of proving an essential element of the party’s claim.² The motion must demonstrate that there are no material facts in dispute, and not just that the moving party believes the facts should be undisputed. The court assesses the facts in the light most favorable to the non-moving party and draws all reasonable inferences in their favor.³ 

Burden of proof

 “A fiduciary who benefits in a transaction bears the burden of establishing that the transaction did not violate his obligations.”⁴ The fiduciary must also participate in some manner in the transaction, though the type of participation is broadly construed.⁵ The court found that the plaintiff did not present any evidence of a fiduciary relationship between the defendant and the decedent that would otherwise shift the burden of proof to the defendant, as there was no evidence that the defendant assisted with or controlled the decedent’s finances or that he was a client of the defendant. It is worthy to note that, even with the retention of the burden of proof and the isolated nature of the evidence in these types of cases, the plaintiff survived the motion for summary judgment.

Undue influence

A finding of undue influence requires the presence of the following four elements: (1) an unnatural disposition; (2) susceptibility; (3) opportunity; and (4) exertion.⁶ Given that the undue influencer’s exertion typically occurs in secrecy and isolation, and is therefore difficult to detect, circumstantial evidence may suffice in certain instances.⁷ 

The court found that the plaintiff presented sufficient evidence to raise a triable issue on the claim of undue influence, with an emphasis upon the following factors: The defendant not only was unrelated to the decedent, but also admitted that his relationship with the decedent was quite limited, thereby suggestive of an unnatural disposition. Perhaps the defendant would have had a stronger argument as to the sole element of an unnatural disposition had he been a gratuitous caretaker or close friend. The plaintiff additionally provided sufficient facts to present a triable issue as to the decedent’s susceptibility and the defendant’s opportunity with the following factual assertions: The decedent was socially isolated, had significant trouble taking care of himself and his home, and was hospitalized shortly after the execution of the deed. The following assertions of facts pertaining to exertion were likewise sufficient to withstand a motion for summary judgment: The defendant was present during the signing of the deed and had arranged for the meeting with the attorneys for this purpose, and the defendant’s brother had a social and business relationship with the managing partner of the law firm. Moreover, the court found that the plaintiff presented sufficient facts to raise a triable issue of fact as to undue influence with its assertion that the decedent told hospital staff that he was “tricked” by the defendant into signing the deed.

Capacity

In the context of execution of a document, capacity is the ability to understand the transaction that one has entered into via their signature. Testamentary capacity requires that the testator is free from delusion at the time of execution and understands the purpose of the document that he or she signs, the general nature of their assets, and those who would claim it.⁸ The higher standard of contractual capacity requires an ability to understand the meaning and consequences of the transaction.⁹ “From a testator, we ask awareness of the natural objects of bounty. The choice among those objects may be seen by others as arbitrary, but arbitrariness or capriciousness may be allowed a donor. In the act of entering into a contract there are reciprocal obligations, and it is appropriate, when mental incapacity, as here, is manifest, to require a baseline of reasonableness.”¹⁰ 

The court found that the plaintiff presented sufficient evidence to survive summary judgment on the issue of capacity to execute the deed. The court emphasized the observations of the decedent’s neighbor as to his inability to recognize him or understand the act of writing a check, records regarding memory and confusion from Minuteman Senior Services, medical records of dementia, and the plaintiff’s expert witness who indicated an intention to testify that the decedent lacked the requisite capacity to sign the deed.

It is worthy to note that the court applied the lower standard of testamentary capacity to the deed transaction in this case, even though a deed is akin to a contract, citing to cases that included transfers by deed.¹¹ The court also cited to the Farnum case in its memorandum, noting the distinction of reciprocal obligations that are appurtenant to a contract. “In the act of entering into a contract there are reciprocal obligations, and it is appropriate, when mental incapacity, as here, is manifest, to require a baseline of reasonableness.”¹²  

Observations and considerations 

Factual sufficiency can withstand lower standards of review

As with any roadmap, the plaintiff’s record of facts was robust enough to withstand the unexpected detours of lower standards of review. The court found that the burden of proof did not shift to the defendant, yet the plaintiff’s factual record was specific and relevant enough to survive summary judgment. It is also worthy to observe that the court applied the lower standard of testamentary capacity, even though this transaction involved a deed and not a will. The plaintiff had argued for the application of the higher standard of contractual capacity, citing various cases in its opposition, including Adler v. Adler: “the capacity to convey real property … [is] more demanding than testamentary capacity.”¹³ 

Even with this less rigorous standard of capacity, however, the plaintiff survived the motion with sufficient assertions of fact. The defendant asserted in its motion for summary judgment that “the question of capacity focuses narrowly on a party’s understanding and conduct only at the time of the disputed transaction.” Note, however, that the testimony of friends, family, the drafting attorney, witnesses or medical personnel regarding their observations at or around the time of execution is helpful to the court.¹⁴ In its opposition, the plaintiff argued that “while the Court can disregard evidence that is too attenuated from the day in question,” the law includes an abundance of cases in which the court recognizes evidence of lack of capacity that is close enough in time to the moment of execution. In fact, the plaintiff cited to cases in its opposition that pertained to evidence that was within a couple of years or more of the date of execution, and had asserted multiple facts that fell within the same month of the date of the decedent’s execution of the deed. The plaintiff was able to establish facts that were close enough in time to the moment of execution, as the wellness check and the decedent’s hospitalization occurred within the same month of execution. 

Fortify the disputed nature of the facts

The defendant’s motion for summary judgment focused on legal arguments about the purported facts, as opposed to a demonstration that there were no material facts in dispute: “the question of capacity focuses narrowly on a party’s understanding and conduct only at the time of the disputed transaction” and “A disposition is unnatural only when a grantor ignores a more obvious recipient in favor of one with whom the grantor has a less direct relationship.” A sufficient motion for summary judgment is not merely a party’s unilateral assertion that there are no material facts in dispute. The moving party must demonstrate that, as to both parties, there are no material facts in dispute. 

The plaintiff bolstered the disputed nature of the material facts through various types of evidence, such as an expert witness and other witnesses, and was therefore well positioned to survive the motion for summary judgment. The plaintiff’s amended complaint set forth disputed facts, the contested nature of which was further enhanced with evidence from witnesses, including an expert witness. the plaintiff cited the inherently disputed nature of a willing expert witness, noting in its opposition statement that “the expert testimony is alone sufficient to create genuine issues of material fact.” Indeed, the court referenced the plaintiff’s expert witness in its finding that there was sufficient evidence to survive summary judgment. It was perhaps advantageous that the non-moving party demonstrated the material facts in support of the expert’s opinion, so as to withstand a challenge that the mere opinion of an expert does not indicate a disputed fact. For example, the plaintiff asserted in its opposition that “Dr. Cremens is expected to testify that after reviewing the depositions in this matter, police reports, protective service reports, medical records, and other documents, she believes that it is readily apparent there was a decline in Mr. Kalbroy’s health and mental acuity since the death of his sister, with a significant decline in the months prior to his admission into Winchester.” Additionally, the plaintiff’s amended complaint, already abundant with specific references to and explanations of disputed facts, was supplemented with further disputed facts in its opposition. 

Given the nuanced subjects of capacity and undue influence, a fortified record of the disputed nature of the facts is well positioned to potentially survive a defendant’s motion for summary judgment, even in the face of shifting burdens and unanticipated standards of review.

Jennifer L. Laucirica's practice focuses on all aspects of trusts, estates, probate law and fiduciary litigation. Laucirica has 24 years of experience as an attorney in various trust and estates practice areas, including will contests, undue influence, breach of fiduciary duty, guardianships and conservatorships, probate law, real estate, estate and gift tax, trust and estate administration, and estate planning. Her multi-disciplinary perspective enables her to recognize and solve the legal issues that transcend these areas of expertise. She has served in a variety of roles throughout her legal career, including in the public sector and private practice, as family office counsel, and in the banking and trust office industry.

Laucirica also has significant experience navigating probate matters in court. She has a unique legislative background in testifying in support of the enactment of the Massachusetts Uniform Probate Code and serving on the MUPC Implementation Committee. She has also served as chair and vice chair of the Massachusetts Bar Association’s Probate Law Section Council.