IN RE: THE ESTATE OF MANFRED G. KUZMA. (2026)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Yaroslava Arkhypenko, Volodymyr Kuzma, Lubov Shevchuk, and Nadiia Fedechko (collectively, objectors) appeal from a decree and an order on cross motions for summary judgment in favor of the petitioner, Robert Tamkin, on Tamkin's petition for formal probate of a will of the decedent, Manfred G. Kuzma (decedent). On appeal, the objectors argue that (1) because the decedent's property was under a conservatorship at the time of the will's execution, the decedent lacked the authority to make the purported will, and thus died intestate; and (2) there was a genuine issue of material fact related to the will's execution. We affirm.

Background. We summarize the uncontested facts as found by the judge, reserving certain facts for later discussion.

In 2017, at the age of sixty-five, the decedent had a stroke, causing him to suffer from Broca's aphasia -- a disorder that affected his ability to verbally communicate his thoughts. In March of 2018, a friend of the decedent's, Priscilla Merrigan, filed a petition in the Probate and Family Court to be appointed as conservator for the decedent. Following a hearing during which a judge found that a basis for a conservatorship existed, the judge issued a decree and order appointing Merrigan as the decedent's conservator and granting her “[a]ll powers over the property and business affairs of the [decedent] which are or may be necessary for the best interest of the [decedent] and the [decedent]’s immediate family pursuant to” G. L. c. 190B, § 5-423 (c) (1)-(7), (14)-(24).

On August 30, 2019, Tamkin filed a petition seeking to remove Merrigan as conservator, which a judge granted, and in doing so, appointed Tamkin as special conservator. As the decedent's special conservator, Tamkin was granted all of the powers previously granted to Merrigan. In December of 2019, following a hearing at which the decedent was represented by court-appointed counsel, Craig Spratt, Tamkin's appointment as special conservator was extended. In extending Tamkin's appointment as special conservator, the judge limited Tamkin's powers over the decedent's property, expressly reserving for the decedent the following rights and responsibilities: (1) “to have and spend $100 cash per week, if requested”; (2) to purchase and give gifts to people chosen by the decedent, not in excess of $500 annually; (3) to make gifts or donations to organizations of the decedent's choice, not in excess of $100 per organization or $1,000 in aggregate, annually; and (4) to make decisions regarding the purchase and sale of the decedent's home.¹

On February 7, 2020, the decedent executed the purported will, wherein Tamkin was the sole legatee and appointed as personal representative of the decedent's estate. The decedent's signature was written on the will by Spratt. Under the decedent's signature, Spratt noted parenthetically that the document was “(signed by Craig T. Spratt).” The will was countersigned by two witnesses: Monique Gregg, Ph.D., and Ariel Brown. A self-proving affidavit was attached to the will wherein the decedent, Gregg, and Brown subscribed, swore, and acknowledged to the will's execution. The self-proving affidavit was notarized by Spratt.

The decedent passed away on July 17, 2022.² At the time of his death, the decedent was seventy years of age and a widower - - he had no siblings or descendants, and he was predeceased by his parents and grandparents. On August 22, 2022, Tamkin filed a petition for formal probate of the will executed on February 7, 2020, and to be appointed personal representative of the decedent's estate. On August 30, 2022, the objectors -- all of whom are residents of Ukraine -- objected to the will's probate, claiming that they are the decedent's first cousins. In the objectors’ affidavits of objections, they alleged that the will was invalid by reason of undue influence and duress, thereby leaving the decedent intestate.

In September of 2024, the parties filed a joint statement of material facts, wherein the objectors agreed (1) to Gregg's observation that during the will's signing the decedent “looked good” and was “very present,” “underst[anding] what was happening within the room and the gravitas of the situation,” and (2) to Spratt's account of his interactions with the decedent; namely, that he saw Tamkin as the natural object of the decedent's bounty, and that he did not sense that the decedent had been unduly influenced to leave his property with Tamkin. The parties then filed cross-motions for summary judgment. Following a hearing, the judge allowed Tamkin's motion for summary judgment and denied the objectors’ motion for summary judgment. The judge concluded that there was no evidence that called the decedent's testamentary capacity into question, and that, by virtue of Spratt's providing independent counsel to the decedent, the objectors’ claims of undue influence were negated. Furthermore, the judge concluded that, given the lack of evidence supporting the objectors’ claims that the decedent lacked testamentary capacity, the decedent had the authority to make a will notwithstanding the fact that his property was subject to a conservatorship at the time of the will's execution. The objectors now appeal.

Discussion. 1. Standard of review. “We review a decision on a motion for summary judgment de novo.” Conservation Comm'n of Norton v. Pesa, 488 Mass. 325, 330 (2021). “Summary judgment is appropriate where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.” Barbetti v. Stempniewicz, 490 Mass. 98, 107 (2022), quoting Conservation Comm'n of Norton, supra; Mass. R. Civ. P. 56 (c), as amended, 436 Mass. 1404 (2002). “Because the parties filed cross motions for summary judgment, we view the evidence in the light most favorable to the party against whom summary judgment was entered,” here, the objectors. Conservation Comm'n of Norton, supra.

2. Decedent's power to make a will. The objectors argue that the appointment of a conservator for the decedent's property divested him of the power to make a will, notwithstanding his testamentary capacity. The objectors point to G. L. c. 190B, § 5-407 (d), enacted in 2009 as part of the Massachusetts Uniform Probate Code (MUPC) (see St. 2008, c. 521, § 9), which states that,

“[a]fter full hearing and upon determining that a basis for an appointment or other protective order exists with respect to a person to be protected for reasons other than minority, the court, after making appropriate findings of fact, has all those powers over the property and business affairs of the protected person which are or may be necessary for the best interest of the protected person and members of his immediate family. Those powers include, but are not limited to the power to: ․ (7) make, amend, or revoke the protected person's will.”

Based on the language above, the objectors contend that, where, as here, a conservator is appointed and the court does not expressly reserve for the protected person the right to make a will, the power to make a will for the protected person lies exclusively with the court. We are not persuaded.

To begin, G. L. c. 190B, § 5-407 (d), dictates that the court's powers over a protected person's property are limited to those which, “after making appropriate findings of fact, ․ are or may be necessary for the best interest of the protected person.” Additionally, G. L. c. 190B, § 5-407 (f) makes clear that “[a] determination that a basis for appointment of a conservator ․ exists is not a determination of incapacity of the protected person.” Thus, based on the statute's plain language, before invoking the power to “make, amend, or revoke the protected person's will,” the court must make appropriate findings that support the exercise of such authority; that is, findings that the exercise of such authority is or will be in the protected person's best interest. See New England Carpenters Cent. Collection Agency v. Arch Ins. Co., 106 Mass. App. Ct. 798, 806 (2026) (“Where the language of a statute is clear and unambiguous, the plain meaning of the language must be given effect, as the principal insight into legislative intent” [quotation and citation omitted]). This rule is consistent with subsection (a) of the statute, which states that “[t]he court shall exercise the authority conferred in this Part to encourage the development of maximum self-reliance and independence of a protected person and make protective orders only to the extent necessitated by the protected person's limitations and other conditions warranting the procedure.” G. L. c. 190B, § 5-407 (a).

In light of the statute's plain language, we conclude that the court's appointment of a conservator did not divest the decedent of the power to make a will. See G. L. c. 190B, § 2-501 (providing, as a general power, that “[a]n individual [eighteen] or more years of age who is of sound mind may make a will”). Here, in appointing either Merrigan or Tamkin as conservator, the judge did not make any findings pertaining to the decedent's testamentary capacity. Rather, the judge's decrees and orders show that the appointments of both conservators were based on the judge's findings that the decedent was “disabled.”³ As noted above, such a finding is not determinative of the protected person's capacity, let alone the person's testamentary capacity, which our courts have defined as the following:

“[the] ability on the part of the testator 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.”

Goddard v. Dupree, 322 Mass. 247, 250 (1948). Thus, in the absence of any findings related to the decedent's testamentary capacity -- or, alternatively, findings that would otherwise lead the court to determine that its exercising the right to make a will for the protected person would be in the protected person's best interest -- the decedent had the authority to execute the will himself.

We note that our conclusion is also consistent with holdings from cases decided prior to the enactment of the MUPC, which established that “a person, whose property is under conservatorship, may execute a valid will, if testamentary capacity exists.” Tucker v. Bowen, 354 Mass. 27, 34 (1968). See Lusis v. Kaminski, 329 Mass. 766, 766 (1952); McLoughlin v. Sheehan, 250 Mass. 132, 136-137 (1924). The objectors provide no relevant authority for their contention that, merely because these cases predated the enactment of the MUPC, their holdings should not be followed.

Lastly, we note that our decision in Matter of the Estate of Olson, 103 Mass. App. Ct. 842 (2024), on which the objectors rely, is not to the contrary. In Olson, supra at 847, a conservator filed a petition to probate a will that he prepared on behalf of the testator. We held that, pursuant to G. L. c. 190B, § 5-407 (d), the conservator did not have the authority to make a will on a protected person's behalf, where the court did not grant him such power in appointing him as conservator. See id. at 851. Under the circumstances, we stated that the court “could ․ later confer[ ] that power [to make a will] on the conservator” under G. L. c. 190B, § 5-425,⁴ but without a court's conferral, the conservator “act[ed] under the apparent, but mistaken, belief that he had the power to execute a will on the [protected person's] behalf.” Id. at 842-843, 851.

The objectors contend that the court's authority to confer the power to make a will onto a conservator, as endorsed in Olson, establishes that until such a conferral is made, the court alone holds the power to make a will. We disagree. The court's authority to confer the power to make a will pursuant to G. L. c. 190B, § 5-425, and a protected person's power to make a will, absent appropriate findings of fact regarding their testamentary capacity, are not mutually exclusive. Rather, these powers are to be invoked in different factual circumstances depending on the court's determination regarding the protected person's best interests. See G. L. c. 190B, § 5-407 (d). Put differently, just because the court may grant a conservator the power to make a will does not necessarily preclude a protected person -- in circumstances where, as here, there was no evidence that the protected person lacked testamentary capacity -- from making a will.

3. Self-proving affidavit. Next, the objectors claim that the judge erred in allowing Tamkin's motion for summary judgment because a genuine issue of material fact existed concerning whether the will was properly executed. Specifically, the objectors claim that the decedent's court-appointed counsel, Spratt, was not authorized to notarize the will's self-proving affidavit because, in addition to acting in a notarial capacity, Spratt also signed the decedent's name on the will.⁵ The objectors point to G. L. c. 222, § 16 (v), which states that “a notary public shall not perform a notarial act” if the notary public “is a party to or is named in the document that is to be notarized unless ․ (2) the notary public is licensed as an attorney in the [C]ommonwealth ․ and is named as an executor, trustee or any other fiduciary capacity in a document.” Here, Spratt is not named in any fiduciary capacity in the will. Rather, his name appears parenthetically under the decedent's signature, stating that the decedent's signature was “(signed by Craig T. Spratt).” The objectors claim that Spratt was therefore “named” in the will, thereby making the will's self-proving affidavit invalid. If, as the objectors claim, the will was not self-proved, then “the testimony of at least [one] of the attesting witnesses ․ is required” in order to prove that the will was validly executed. G. L. c. 190B, § 3-406 (a).⁶

Here, notwithstanding the fact that Spratt's name appears on the will's signature page, we conclude that Spratt was not “named” in the will under a reasonable construction of G. L. c. 222, § 16 (v). See Attorney Gen. v. School Comm. of Essex, 387 Mass. 326, 336 (1982) (“We will not adopt a literal construction of a statute if the consequences of such construction are absurd or unreasonable”). The sole purpose served by Spratt's name appearing in the will was to show that he signed the decedent's name on the will, an action permitted by G. L. c. 190B, § 2-502 (a) (2). See G. L. c. 190B, § 2-502 (“a will shall be ․ signed by the testator or in the testator's name by some other individual in the testator's conscious presence and by the testator's direction“ [emphasis added]). Furthermore, G. L. c. 222, § 16 (vi) provides that a notary public, who is also a licensed attorney in Massachusetts, “shall not [be] preclude[d] ․ from performing notarial acts relative to any document in connection with which the attorney receives a legal fee for professional legal services.”

Based on these provisions, we conclude that the Legislature did not intend to preclude a notary public from performing a notarial act on a self-proving affidavit to a will, where the notary public's name appears on the will solely as a means of indicating that he, in his capacity as a licensed attorney, was responsible for writing the testator's name.

Accordingly, we conclude that Tamkin's motion for summary judgment was properly granted, and that the objectors’ motion for summary judgment was properly denied.⁷

Decree affirmed.

FOOTNOTES

1.   The order also provided that Tamkin would “elicit [the decedent's] input and provide input to him, as feasible.”

2.   In January of 2021 -- before the decedent's passing -- Tamkin was appointed as the conservator of the decedent's property, changing his status from special conservator to conservator. The judge's order granted Tamkin him powers “pursuant to” G. L. c. 190B, § 5-423 (c) (1)-(7), (14)-(24), and were not otherwise limited. Tamkin later filed a motion to amend the January 2021 order, requesting that the limitations on his power put in place in the December 2019 order be incorporated in the most recent order, which the judge allowed.

3.   General Laws 190B, § 5-401, provides, in relevant part that:“[the] [a]ppointment of a conservator ․ may be made in relation to the estate and affairs of a person under a disability for reasons other than minority if the court determines that: (1) the person is unable to manage property and business affairs effectively because of a clinically diagnosed impairment in the ability to receive and evaluate information or make or communicate decisions, even with the use of appropriate technological assistance ․ ; and (2) the person has property that will be wasted or dissipated unless management is provided or money is needed for the support, care, and welfare of the person or those entitled to the person's support and that protection is necessary or desirable to obtain or provide money.”

4.   General Laws c. 190B, § 5-425, provides that “the court may confer on a conservator at the time of appointment or later ․ any power that the court itself could exercise under” §§ 5–407 (c) and 5–407 (d).”

5.   Tamkin contends that this argument was waived because it was neither raised in the objectors’ affidavits of objections nor during the pretrial conference. The objectors, however, raised this issue in their memorandum in opposition to Tamkin's motion for summary judgment, and thus, we address the issue on its merits. Contrast Carey v. New England Organ Bank, 446 Mass. 270, 285 (2006) (holding that issue not argued in opposition to summary judgment may not be raised for first time on appeal, as party “never put the judge on notice that they opposed summary judgment on this theory”).

6.   The objectors’ argument proceeds by claiming that a genuine issue of material fact exists because, upon being deposed, Gregg (one of the witnesses to the will's signing) could not remember specifically whether the decedent affirmatively ordered Spratt to sign the decedent's name on the will, and intimated that it was the decedent himself who signed the will. Accordingly, the objectors assert that Gregg's inability to recollect the events of the will's signing creates a genuine issue of material fact regarding the will's execution.

7.   Given our conclusion, we do not opine on the issue, raised by Tamkin in his cross appeal, whether, as an initial matter, the objectors had standing to assert an interest in the decedent's estate. See Mostyn v. Department of Envtl. Protection, 83 Mass. App. Ct. 788, 792 & n.12 (2013) (question of standing need not be resolved where not outcome determinative).