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Appeals Court of Massachusetts.

Donna COSCIA & others 1 v. Laura SWEEZEY.2


Decided: October 13, 2021

By the Court (Massing, Kinder & Neyman, JJ.3)


After trial, a Probate and Family Court judge found that the decedent, Russell Sweezey, was subject to undue influence when he created a trust for the benefit of his daughter, defendant Laura Sweezey, to the exclusion of his other children, plaintiffs Donna Coscia and Brenda, James, and John Sweezey.4 In a comprehensive written decision, the judge declared the trust null and void, reasoning that Laura had failed to prove that Russell was not subject to undue influence. On appeal, Laura claims that the judge improperly shifted the burden of proof to her and made clearly erroneous factual findings. We affirm.5

Background. We summarize the judge's relevant findings. Before 2013, Russell stated that he wanted to leave the family home to his five adult children. In December 2013, Russell suffered a stroke which caused memory loss and a change in his behavior. Laura returned to Massachusetts from California to care for her parents whom she described as “mentally incapacitated” and in need of “24/7 care.” In September 2014, at Laura's suggestion, Russell executed a durable power of attorney appointing Laura as his attorney-in-fact. Laura, a certified financial planner, took complete control of her parents' finances. In April 2014, Laura moved into the family home to care for Russell and Jean, who suffered from dementia, cancer, and diabetes.

Laura took Russell to his medical appointments after he was diagnosed with Alzheimer's disease. After Jean died on June 16, 2015, Laura located an estate planning attorney and arranged a meeting with the attorney that she attended with Russell on July 16, 2015. Laura provided the attorney with information about the family and a letter from Russell's physician opining that Russell, then eighty years old, was competent. After the meeting, Laura sent the following message to the attorney: “For passing on the house, I'm thinking a trust may be better than a will, to avoid probate court, expenses, [and] delays.”

In September 2015, Laura took Russell to the attorney's office for the purpose of executing the trust documents. The attorney met with Russell alone for ten to fifteen minutes. Although Russell's medical records showed that he had “mild dementia with significant deficits in multiple domains,” the attorney concluded that Russell was lucid and understood the terms of the trust document. The trust identified Russell as the settlor of the trust and Laura as the sole trustee and beneficiary. Pursuant to the estate plan, Russell executed the documents creating the trust and transferring the family home to Laura as trustee by quitclaim deed.

Laura also changed the beneficiary designation on Russell's retirement account, so that each of her siblings was named a beneficiary. After Russell died in 2017, Laura, as administrator of his estate, distributed a $5,000 check to each of her siblings from the retirement account. Laura transferred the deed to the family home to herself.

Discussion. 1. Burden of proof. Undue influence requires a showing that (1) an unnatural disposition has been made, (2) by a person susceptible to undue influence, (3) to the advantage of someone with an opportunity to exercise undue influence, and (4) who has used that opportunity to procure the contested disposition through improper means. See Tetrault v. Mahoney, Hawkes & Goldings, 425 Mass. 456, 464 (1997). While the parties contesting the distribution normally bear the burden of proving undue influence, O'Rourke v. Hunter, 446 Mass. 814, 827 (2006), the burden shifts to the proponent of the distribution (in this case Laura) when the proponent is a fiduciary of the testator and benefits from a transaction with the testator. See Cleary v. Cleary, 427 Mass. 286, 290 (1998). In the case of a distribution to a fiduciary, it is the fiduciary who “bears the burden of establishing that the transaction did not violate [their] obligations.” Id. at 295.

Laura argues that she was not “fully involved” in the undertakings relative to Russell's estate plan, and therefore the judge erred in placing the burden of proof on her. We disagree. The burden of proof in this context shifts when “one who serves as a fiduciary under a power of attorney; was fully involved in all the undertakings relative to the revisions of the testator's will and estate plan, yielding the beneficial inheritance; and exercised unrestricted and expansive power over the testator's finances.” In Re Estate of Moretti, 69 Mass. App. Ct. 642, 643 (2007). Here, there is no dispute that Laura acted as Russell's fiduciary under a broad power of attorney and that she controlled his finances. Her argument that she was not fully involved in Russell's estate plan is not supported by the record. Laura initiated the estate plan, found the estate planning attorney, scheduled and attended Russell's meetings with the attorney, provided relevant family information to the attorney, and later communicated to the attorney that she thought that “a trust may be better than a will, to avoid probate court, expenses, [and] delays.” Laura then changed the beneficiaries on Russell's retirement account. From these facts, the judge reasonably inferred that Laura “played an instrumental role in arranging for the [t]rust and the [d]eed to be drafted and executed.” Therefore, it was Laura's burden to establish that the transaction was fair and that Russell was fully informed. See Cleary, 427 Mass. at 293. This required proof that Russell made the dispositions with full knowledge and intent or the advice of independent legal counsel. Id. at 291.

2. Factual findings. Laura challenges three factual findings underlying the judge's conclusion that Russell was subject to undue influence from Laura. “We do not set aside a judge's findings of fact unless they are ‘clearly erroneous’ ” (citation omitted). Demoulas v. Demoulas Super Mkts., Inc., 424 Mass. 501, 509 (1997). “A finding is clearly erroneous only when, although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed” (citation and quotations omitted). Id.

First, we discern no clear error in the judge's finding that Russell was susceptible to undue influence. At the age of eighty, Russell suffered from Alzheimer's disease that “significantly interfere[d] with [his] day to day functional independence.” He had driven his truck into oncoming traffic, confused his children for his siblings, and forgotten where his bedroom was. Even Laura described him at one point as “mentally incapacitated.” Russell's age and weakened mental condition, considered together with Laura's complete control over Russell's day-to-day activities and finances, provided “an adequate basis” for the judge's conclusion that Russell was susceptible to Laura's influence. Heinrich v. Silvernail, 23 Mass. App. Ct. 218, 223 (1986).

Second, Laura argues that the judge clearly erred in finding that the disposition of the home to her was unnatural.6 While “[a] testamentary disposition is not ‘unnatural’ simply because it favors certain members of the testator's immediate family over others” (citation omitted), Rostanzo v. Rostanzo, 73 Mass. App. Ct. 588, 605 (2009), it was Laura's burden, as Russell's fiduciary, to prove that the disposition of the family home was not unnatural in these circumstances. Laura was “in the best position after the transaction to explain and justify it.” Cleary, 427 Mass. at 293. But, when given an opportunity at trial to explain the disposition, Laura offered nothing. The judge found that Laura provided no credible evidence of a close relationship with Russell that might explain the disposition of the family home to her alone. On the other hand, the judge credited testimony from Laura's siblings who heard Russell say he wanted the family home to go to all five children. We are satisfied that the judge, who was in the best position to assess witness credibility, carefully considered the evidence and assigned it the appropriate weight. See Brandao v. Docanto, 80 Mass. App. Ct. 151, 155-156 (2011). In sum, we discern no clear error in the finding that, in these circumstances, the disposition of the house to Laura alone was unnatural.

Finally, Laura claims that the judge erred in finding that Russell did not receive independent legal advice. The judge's subsidiary factual findings regarding (1) Russell's susceptibility to undue influence, (2) the nature and extent of Laura's involvement and communication with the attorney, and (3) that Russell met independently with the attorney for only ten to fifteen minutes, were well supported by the record. Based on these facts, the inference that the attorney's legal advice to Russell was not truly independent was not unreasonable.

Judgment affirmed.


4.   We will refer to the parties by their first names to avoid confusion.

5.   Because we affirm, we need not address the plaintiffs' argument that the judge erred when she found that Russell was competent. In any event, the issue is not properly before us because the plaintiffs did not file a notice of appeal. See DeLucia v. Kfoury, 93 Mass. App. Ct. 166, 170 (2018) (notice of appeal is jurisdictional prerequisite to consideration of matter on appeal).

6.   Laura does not challenge the judge's findings with respect to disposition of the pension funds.

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