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Conservator-Created Will Possibly Admitted to Probate

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In 2017, Paul L. Gresik was appointed as conservator for Jean Olson. In the order appointing Gresik, the court directed that “[a] financial and an estate plan be established for Jean Olson, with the assistance of the [c]onservator ․ and other expert financial/estate planners.”

Conservator Signs Will for Protected Person

Over several months, Gresik worked with Olson to create a will giving a quarter of her estate to each of Boston Children’s Hospital and the Masonic Lodge of Brockton. Being advised by counsel that the original order gave him the power to execute the will, Gresik did so on Olson’s behalf.

After Olson died in 2019, Gresik sought to have the will admitted to probate. But Olson’s nephew, Anthony Lewandowski, objected, arguing that a conservator cannot execute a will on behalf of the protected individual. Gresik conceded his error but argued that pursuant to M.G.L. c. 190B, § 2-502, he could present extrinsic evidence that Olson intended the document to be her will.

That statute contains the requirement that a will be signed by a testator and witnessed by at least two witnesses. However, it includes an exception “as provided in subsection (b),” which reads: “Intent that the document constitute the testator’s will can be established by extrinsic evidence.”

The probate court agreed with Lewandowski, ruling that the extrinsic evidence provision could not override the requirement that the will be signed. Gresik appealed to the Massachusetts Appeals Court.

How Big is the Exception?

In In Re: The Estate of Jean Olson (Mass. App. No. 23-P-210, March 21, 2024), the Massachusetts Appeals Court agrees that pursuant to M.G.L. c. 190B, § 5-407 (d) (7) a conservator may only execute a will on behalf of a protected person with court authorization. It also finds that the subsection (b) exception cannot be construed as so large that any document may be presented as a will, saying that to do so “would essentially nullify the requirements of § 2-502 (a) that wills “shall be” witnessed and signed. We decline to adopt such a reading as it would violate the basic tenet of statutory construction that ‘no word in a statute should be considered superfluous.’”

Likewise, the Court states that it cannot construe the “except as provided in subsection (b)” language to have no meaning at all. There must be some exceptions to the signing and witnessing requirements, even if the exception cannot be so large as to swallow them all together. It concludes that the exception should be applied here because the conservator could have gone back to the probate court during Olson’s life to ask it to authorize her will.

In this situation, where a substituted judgment hearing cannot be held because Olson’s death terminated the conservatorship, we think it aligns with the purposes of the MUPC and “common sense and sound reason” for the court to consider extrinsic evidence to determine whether the 2018 document comports with Olson’s testamentary intent. [Citations omitted.] It is undisputed that the conservator has no direct financial interest in the probate of the 2018 document and that he acted on a good faith, albeit erroneous, belief that he had the authority to execute a will for Olson. Allowing a conservator’s good faith mistake to potentially defeat a decedent’s testamentary wishes would contravene the MUPC’s purpose “to discover and make effective the intent of a decedent in distribution of the decedent’s property” without materially serving the other enumerated purposes.

The Court then remands the case back to the probate court for a hearing in which extrinsic evidence may be admitted as to whether Olson intended the document signed by Gresik to be her will.

Where Does this Leave Us?

Unfortunately, this ruling leaves a lot of uncertainty. Clearly, not any writing may be construed as a will, even if that’s the intent of the decedent. But some can be under extraordinary circumstances. But how are we to know what circumstances a court will find sufficient to override the requirement that the will be signed and witnessed? The answer is probably to assume that the exception will not apply, but the slight possibility that it might could be used in settlement negotiations.

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