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Proving Testamentary Capacity: A Sound Mind at the Time of Signing

By Alexandra Lowe

In In the Matter of the Estate of Fred S. Rosen (Mass. App. Ct. No. 13-P-221, December 30, 2014), the Massachusetts Appeals Court confirms the trial courts finding that Fred S. Rosen had testamentary capacity at the time he signed his will. 

Dr. Rosen, a physician, was never married and had no children.  However, over the course of his life he cultivated many strong relationships, many familial in nature.  The plaintiff in this case, William P. Girard (Girard), shared a father-son type relationship with Dr. Rosen.  Dr. Rosen helped to guide Girard’s education, helped him find employment, and assisted him financially.  As Dr. Rosen aged, Girard accompanied him to doctor visits, lived with him at certain times, and was very involved in the planning, design, and building of his home in Anguilla, to which he and Dr. Rosen often traveled together. 

Unfortunately, following an argument in March 2005 regarding Girard’s financial situation, all communication between the two ceased and was never revived prior to Dr. Rosen’s death in May of that year. 

On April 12, 2005, Dr. Rosen met with his attorney, Robert M. Allen, to discuss alterations to his will and other estate planning instruments.  The discussed changes included placing his Anguilla home, which was previously left solely to Girard, into a land trust, removing Girard as a beneficiary of the tangible items listed in his will, and nominating another person as coexecutrix in Girard’s place.  Dr. Rosen met with Attorney Allen on two other occasions, once on May 9th, and again, nine days prior to his death on May 12th.  At the May 12th meeting, Dr. Rosen executed his land trust for the Anguilla property, his revised will, and his beneficiary designation form for his retirement fund.  After Dr. Rosen’s death, Girard contests his capacity, alleging he was not of sound mind when the will and beneficiary designation form were executed.  Girard points to Dr. Rosen’s medical records which indicate periodic episodes of confusion occurring later on the same day as the May 12th document execution.

The court explains that the burden of proving testamentary capacity is on the party supporting a will’s validity.  However, a court will presume that a testator has the requisite capacity unless there is evidence to the contrary and the testator need only have capacity at the moment he signs his estate planning documents.  “[A] person […] may possess testamentary capacity at any given time and lack it at all other times,” (emphasis supplied).  O’Rourke v. Hunter, 446 Mass. 814, 827 (2006), quoting Daly v. Hussey, 275 Mass. 28, 29 (1931). 

The appeals court judge concludes that at the time the will was executed Dr. Rosen had testamentary capacity, “understanding the nature of his assets… [and] the objects of his bounty.”  There was evidence that on the morning of the execution, he was bright and conversant; he asked for assistance in making an outside phone call to obtain new beneficiary social security numbers, and called Attorney Allen to provide the same to him.  At the time of the execution, as required, there were two witnesses present with Attorney Allen.  All observed Dr. Rosen to be attentive and engaged and to understand the changes he was making to his estate.  The trial judge held that this not only spoke to Dr. Rosen’s capacity but his determination in altering his estate. 

The Appeals Court affirmed the lower court’s holding allowing the will, finding that the evidence presented by Girard was not sufficient to defeat the presumption of Dr. Rosen’s capacity at the time of the May 12th document execution.  Further, they held there was evidence to support that the changes made to Dr. Rosen’s estate were “not an unnatural disposition of his assets.”  His newly-appointed beneficiaries were his god-children with whom he shared a very close relationship.

Alexandra Lowe, a law clerk with Margolis & Bloom, is in her third year at Suffolk University Law School.

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