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23-P-210 Appeals Court
IN THE MATTER OF THE ESTATE OF JEAN OLSON.
No. 23-P-210.
Plymouth. November 1, 2023. - March 21, 2024.
Present: Wolohojian, Neyman, & Shin, JJ.
Uniform Probate Code. Conservator. Will, Execution, Validity, Extrinsic evidence. Error, Harmless. Statute, Construction. Practice, Civil, Attorney's fees.
Petition filed in the Plymouth Division of the Probate and Family Court Department on July 9, 2019.
The case was heard by Edward F. Donnelly, Jr., J., on a motion for summary judgment.
Brian K. Lee for David D. Parker, Jr. Matthew H. Beaulieu for Anthony Lewandowski. John A. Gianino, for Paul L. Grzesik, was present but did not argue.
SHIN, J. The former conservator (conservator) of the
decedent, Jean Olson, filed a petition to probate a document
offered as Olson's will. The document, titled "Last Will and
Testament of Jean Olson," was prepared by the conservator in 2
consultation with Olson several months before her death,
attested to by two witnesses, and notarized. It was signed not
by Olson herself, however, but by the conservator in his name,
acting under the apparent, but mistaken, belief that he had the
power to execute a will on Olson's behalf.
Olson's nephew, Anthony Lewandowski, objected to the
conservator's petition and moved for summary judgment, arguing
that the document was not a valid will under G. L. c. 190B,
§ 2-502 (a), which requires that wills be signed by the testator
or by someone else in the testator's name.1 The conservator
responded that § 2-502 (a) contains an exception that allows the
use of extrinsic evidence to prove that a testator intended an
unsigned document to be her will. A Probate and Family Court
judge agreed with Lewandowski and dismissed the petition.
We conclude that in the specific circumstances of this case
-- where a separate statute (the conservatorship statute) allows
conservators with court authorization to execute wills on behalf
of other persons, and the conservator here acted on the belief
that he had such authorization -- the language creating the
exception to § 2-502 (a) is best construed to permit the use of
extrinsic evidence to establish that the unsigned document is a
1 Olson's nephew, Paul L. Grzesik, also filed an objection in the Probate and Family Court and joins in the brief filed by Lewandowski in this appeal. 3
valid will. A contrary reading would risk allowing a good faith
mistake of the conservator, a person specifically appointed by
the court to manage Olson's estate, to override Olson's
testamentary intent. As we do not believe this would be
consistent with the statutory purposes, we vacate the dismissal
of the petition and remand for further proceedings.2
Background. 1. Statutory framework. We begin with an
overview of the relevant statutes to provide context for the
issues raised by the appeal.
In 2009 the Legislature enacted G. L. c. 190B, § 2-502, as
part of the Massachusetts Uniform Probate Code (MUPC). See
St. 2008, c. 521, § 9. Section 2-502 states in full:
"[Execution of Wills.]
"(a) Except as provided in subsection (b) and in sections 2-506 and 2-513,[3] a will shall be:
"(1) in writing;
"(2) 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; and
2 We note that the conservator filed the notice of appeal before the decree was docketed. Because the objectors do not raise the issue and we see no prejudice, we reach the merits on appeal. See Liberty Mut. Fire Ins. Co. v. Casey, 91 Mass. App. Ct. 243, 244 n.2 (2017).
3 These sections concern, respectively, choice of law if a will is executed or a testator at the time of death is domiciled outside Massachusetts, and the admissibility of separate writings to dispose of items of tangible personal property. Neither is pertinent to this case. 4
"(3) signed by at least 2 individuals, each of whom witnessed either the signing of the will as described in paragraph (2) or the testator's acknowledgment of that signature or acknowledgment of the will.
"(b) Intent that the document constitute the testator's will can be established by extrinsic evidence." (Emphases added.)
As we will discuss, this case turns on the meaning of § 2-502's
opening clause, "[e]xcept as provided in subsection (b)."
Section 2-502 is modeled after the corresponding section of
the Uniform Probate Code (UPC)4 but differs in certain respects,
including that it omits the UPC provision authorizing
holographic wills (subsection [b] of UPC § 2-502). For
comparison we set out the full text of UPC § 2-502 in the
margin.5 Also, the MUPC does not contain a provision comparable
4 "The Uniform Probate Code is published by the Uniform Law Commission (also known as the National Conference of Commissioners on Uniform State Laws), a State-supported, national organization that proposes uniform codes for State legislatures to encourage uniformity and clarity in important areas of State law." American Family Life Assur. Co. of Columbus v. Parker, 488 Mass. 801, 804 n.5 (2022).
5 The full text of section 2-502 follows:
"(a) Except as otherwise provided in subsection (b) and in Sections 2-503, 2-506, and 2-513, a will must be:
"(2) 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; and 5
to UPC § 2-503, known as the harmless error provision. In
jurisdictions where it has been adopted, § 2-503 allows a court
to treat a document or writing as a valid will, even if "not
executed in compliance with Section 2-502," "if the proponent of
the document or writing establishes by clear and convincing
evidence that the decedent intended the document or writing to
constitute . . . the decedent's will." Uniform Probate Code
§ 2-503 (2006). See, e.g., Estate of Ehrlich, 427 N.J. Super.
64, 70-71 (2012). The purpose of § 2-503 is "to retain the
intent-serving benefits of Section 2-502 formality without
inflicting intent-defeating outcomes in cases of harmless
error." Uniform Probate Code § 2-503 comment (2006).
Article V, Part 4, of the MUPC governs conservatorships.
With respect to "a person who is disabled for reasons other than
"(3) signed by at least two individuals, each of whom signed within a reasonable time after he [or she] witnessed either the signing of the will as described in paragraph (2) or the testator's acknowledgment of that signature or acknowledgment of the will.
"(b) A will that does not comply with subsection (a) is valid as a holographic will, whether or not witnessed, if the signature and material portions of the document are in the testator's handwriting.
"(c) Intent that the document constitute the testator's will can be established by extrinsic evidence, including, for holographic wills, portions of the document that are not in the testator's handwriting."
Uniform Probate Code § 2-502 (2006). 6
minority," a court may appoint a conservator in certain
situations, including where "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 "the person
has property that will be wasted or dissipated unless management
is provided." G. L. c. 190B, § 5-401 (c). After service of
notice, "the court in which the petition [for appointment of a
conservator] is filed has . . . exclusive jurisdiction to
determine how the estate of the protected person . . . shall be
managed, expended, or distributed to or for the use of the
protected person, the protected person's dependents, or other
claimants," until the conservatorship proceeding is terminated.
G. L. c. 190B, § 5-402 (2).
The powers of a conservator are listed in G. L. c. 190B,
§§ 5-423 and 5-424. While there are many, the listed powers do
not include the power to make a will. Rather, under G. L.
c. 190B, § 5-407 (d) (7), it is the court that has the power to
"make, amend, or revoke the protected person's will." But as
provided by G. L. c. 190B, § 5-425, "the court may confer on a
conservator at the time of appointment or later . . . any power
that the court itself could exercise under section[] . . .
5-407 (d)." In that event, when "approving a conservator's 7
exercise of the powers listed in [§ 5-407 (d)]," the court
"shall consider primarily the decision that the protected person
would have made if not disabled, to the extent that the decision
can be ascertained." G. L. c. 190B, § 5-407 (e).
2. Facts. In December 2015 an elder-services agency filed
a petition in the Probate and Family Court requesting
appointment of a conservator for Olson. On July 17, 2017, a
judge found after a hearing that a basis existed for a
conservatorship and issued a decree and order appointing the
conservator and giving him "all the powers and duties authorized
to a conservator for a protected person under G. L. [c.] 190B[,]
§ 5[,] Part IV, exclusive of those powers requiring specific
court authorization."6 On September 6, 2017, the judge issued a
further order that was incorporated into the decree. As
relevant here, the order 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."
The summary judgment record contains two affidavits from
the conservator describing the following steps he took pursuant
to the September 6, 2017 order. Unable to locate a will or
6 The same day, the elder-services agency filed a petition for appointment of a guardian for Olson, alleging that she was an incapacitated person. In February 2018 the judge appointed the conservator to also act as Olson's guardian. 8
other document expressing Olson's testamentary wishes, the
conservator hired an attorney "to determine whether a Petition
for Estate Plan and/or appointment of a Guardian ad Litem
('GAL') was required." This attorney, "[a]fter investigation,
including consultation with the Judicial Case Manager,"
confirmed that the decree as modified by the September 6, 2017
order "expanded [the conservator's] authority to create an
estate plan and that a GAL was not required because [Olson] was
represented by independent legal counsel, Doris Muirhead." The
conservator then hired a second attorney, Alyssa Asack, to draft
an estate plan for Olson and met with Olson multiple times
throughout 2018 to discuss how she wanted to divide her estate.
At one such meeting, which was also attended by Asack and
Muirhead, Olson expressed that she wanted to make major bequests
to Boston Children's Hospital and the Masonic Lodge in Brockton
because of services that those organizations had provided to her
and her family. Once Asack memorialized those wishes in a draft
will, the conservator met with Olson for approximately 1.7 hours
on October 17, 2018, to discuss the draft, including
specifically the provisions that would distribute thirty-three
percent shares of Olson's estate to each of Boston Children's
Hospital and the Masonic Lodge in Brockton. After discussion
Olson decided to reduce those amounts to twenty-five percent 9
shares, while again "express[ing] great pride and enthusiasm for
what each organization had done to benefit her and her family."
On October 23, 2018, the conservator executed the document
at issue (2018 document). Titled "Last Will and Testament of
Jean Olson," the 2018 document begins: "I, JEAN OLSON, by my
court-appointed Conservator, . . . acting pursuant to the
authority granted to him in the Conservatorship Decree dated
September 6, 2017, . . . declare that this is my Last Will and
Testament, hereby revoking all prior Wills and Codicils." Under
the distribution provisions, Olson's estate would be devised as
follows: twenty-five percent to Boston Children's Hospital,
twenty-five percent to the Paul Revere Lodge A.F. and A.M. (the
Masonic Lodge in Brockton), eleven percent to each of her four
nephews, and three percent to each of her two nieces-in-law.
The conservator signed the 2018 document, which was witnessed
and notarized, in his own name as Olson's conservator.
Olson died, it appears unexpectedly, on May 6, 2019,
terminating the conservatorship. See G. L. c. 190B, § 5-429 (d)
("A conservatorship terminates upon the death of the protected
person"). Two months later, the conservator filed the
underlying petition to probate the 2018 document as Olson's
will. Lewandowski and another of Olson's nephews (together,
objectors) filed appearances and objections. See note 1, supra.
Lewandowski thereafter moved for summary judgment, arguing that 10
the powers granted to the conservator by the conservatorship
decree did not include the power to make a will for Olson.7
While conceding he did not have such power, the conservator
countered that the 2018 document was still a valid will because
the conservatorship decree preserved Olson's right to make her
own will.
In light of the conservator's concession, Lewandowski then
argued that the 2018 document was not a valid will under G. L.
c. 190B, § 2-502 (a), because it was neither signed by Olson nor
signed in her name by someone else in her conscious presence and
at her direction. In response the conservator sought to rely on
the "[e]xcept as provided in subsection (b)" clause of
§ 2-502 (a), claiming he could prove with extrinsic evidence
that Olson intended the 2018 document to be her will. He
submitted the two affidavits described above in support, as well
as an affidavit signed by Lewandowski. Although the
circumstances of its execution are unclear, Lewandowski averred
in the affidavit that Olson "often spoke of the great gratitude
and appreciation she felt towards Boston[] Children's Hospital"
and "discussed her and her late husband's long involvement with
the Masonic Lodge in Brockton." Lewandowski further averred
7 Lewandowski's motion also claimed that Olson had previously executed a will in 2006. It appears that the objectors filed a copy of the 2006 will in the trial court, but it is not included in the record appendix. 11
that, based on his conversations with Olson, "it is [his]
opinion that the Will as presented for allowance represents her
wishes."
After a hearing a judge (who was not the judge in the
conservatorship proceeding) issued a thoughtful written decision
granting summary judgment for the objectors. The judge
concluded that the "[e]xcept as provided in subsection (b)"
clause did not allow extrinsic evidence to be used to override
the signature requirement of § 2-502 (a), and so the 2018
document could not be submitted to probate. A decree entered
accordingly, dismissing the petition.
Discussion. We review a judge's decision granting summary
judgment de novo. See American Family Life Assur. Co. of
Columbus v. Parker, 488 Mass. 801, 804 (2022). Summary judgment
is appropriate if no material fact is in dispute and the moving
party is entitled to judgment as a matter of law. See id.
Here, whether the objectors are entitled to summary
judgment hinges on a question of law -- the scope of the
"[e]xcept as provided in subsection (b)" clause of G. L.
c. 190B, § 2-502 (a). The conservator construes this language
to create a blanket exception to the execution requirements of
subsection (a), allowing any document to be submitted to probate
if the proponent can prove with extrinsic evidence that the
document is the testator's intended will. Any other 12
interpretation, the conservator says, would render the
"[e]xcept" clause a nullity. Conversely, the objectors contend
that the conservator's interpretation would render
subsection (a) a nullity. While conceding that the "[e]xcept"
clause must be given meaning, the objectors urge us to limit it
to "circumstances where the four corners of a properly executed
will are insufficient" to establish testamentary intent (such as
where a document is mislabeled or unlabeled), or where "there is
some statutory basis for looking beyond the four corners of the
document."
Our goal in interpreting any statute is to effectuate the
intent of the Legislature. See Wolfe v. Gormally, 440 Mass.
699, 704 (2004). "Ordinarily, if the language of a statute is
plain and unambiguous it is conclusive as to legislative
intent." Sterilite Corp. v. Continental Cas. Co., 397 Mass.
837, 839 (1986). Because the Legislature is presumed to act
reasonably, however, "[w]e will not adopt a literal construction
of a statute" if it would lead to illogical results. Attorney
Gen. v. School Comm. of Essex, 387 Mass. 326, 336 (1982).
We do not agree with the conservator that the "[e]xcept as
provided in subsection (b)" language is unambiguous and must be
construed to permit, without limitation, the use of extrinsic
evidence to prove that an unsigned or unwitnessed document is a
will. Under the conservator's reading, any writing imaginable, 13
such as scribbles on a cocktail napkin, could theoretically be
probated as a will. This 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." International Org.
of Masters, Mates & Pilots, Atl. & Gulf Maritime Region, AFL-CIO
v. Woods Hole, Martha's Vineyard & Nantucket S.S. Auth., 392
Mass. 811, 813 (1984). See Champigny v. Commonwealth, 422 Mass.
249, 251 (1996) (court will not interpret statute in manner that
would result in "legislative effort" having "no practical
effect").
The conservator's reading is also contrary to at least two
of the five enumerated purposes of the MUPC: "to simplify and
clarify the law concerning the affairs of decedents," and "to
promote a speedy and efficient system for liquidating the estate
of the decedent and making distribution to the decedent's
successors." G. L. c. 190B, § 1-102 (b). Construing the
"[e]xcept as provided in subsection (b)" clause to supplant
entirely the signature and attestation requirements of
§ 2-502 (a) would lead to increased litigation and delays in
settling estates and create the risk of fraud and undue
influence over the vulnerable and elderly. We do not believe
that this would be consistent with legislative intent. See 14
Wolfe, 440 Mass. at 704, quoting Saccone v. State Ethics Comm'n,
395 Mass. 326, 334 (1985) ("if a court concludes that 'the
general meaning and object of the statute should be found
inconsistent with the literal import of any particular clause or
section, such clause or section must, if possible, be construed
according to the spirit of the act'"). The Legislature's
decision not to adopt either the UPC provision authorizing
holographic wills or the UPC harmless error provision supports
our conclusion, as these omissions suggest that the Legislature
intended for the execution requirements of § 2-502 (a) to apply
more strictly in Massachusetts.
That said, under the tenet that no word in a statute is to
be considered superfluous, we must presume that the Legislature
intended for the "[e]xcept as provided in subsection (b)" clause
to have some meaning. Granted, it may be that the clause is a
product of legislative oversight, as indicated by comparing
§ 2-502 with the corresponding provision of the UPC. While
similar language appears in UPC § 2-502 (a), subsection (b) in
the UPC is the provision authorizing holographic wills. The
"[e]xcept" clause makes sense in this statutory structure -- a
will must be signed and witnessed, except that under
subsection (b) a will that is not witnessed is still valid as a
holographic will if the signature and material portions are in
the testator's handwriting. The provision concerning extrinsic 15
evidence, which is subsection (c) of UPC § 2-502, likewise makes
sense, as it is not structured as an exception to the execution
requirements of subsection (a). Rather, as explained in the
comment, it permits the use of extrinsic evidence to prove
"testamentary intent." Uniform Probate Code § 2-502 comment
(2006). See Restatement (Third) of Property: Wills and Other
Donative Transfers § 3.1 comment g (1999) ("To be a will, the
document must be executed by the decedent with testamentary
intent, i.e., the decedent must intend the document to be a will
or to become operative at the decedent's death. . . . In the
absence of a clear expression of testamentary intent in the
document, testamentary intent can be inferred from the document
or established by extrinsic evidence").
As the objectors suggest, it is possible that the
Legislature, after deciding not to adopt the UPC provision
authorizing holographic wills, neglected to remove the "[e]xcept
as provided in subsection (b)" language from subsection (a).
But if that is the case, it is for the Legislature to amend the
statute. Our role, where "a statute contains seemingly
conflicting language," is to "interpret . . . [it], if possible,
so as to make it an effectual piece of legislation in harmony
with common sense and sound reason" (quotations and citation
omitted). Wolfe, 440 Mass. at 704. We must also consider the 16
language in light of the "statute's purpose and history"
(citation omitted). Id.
With these considerations in mind, we conclude that, in the
particular circumstances of this case and in view of the
interplay between § 2-502 and the conservatorship statute, it is
appropriate to turn to extrinsic evidence to determine whether
Olson intended the 2018 document to be her will. The objectors
concede that a document that deviates from the requirements of
§ 2-502 (a) may still be a valid will if a different statute
authorizes it. One such statute is G. L. c. 190B,
§ 5-407 (d) (7), which, as mentioned, allows a conservator with
court authorization to make a will on behalf of a person under
conservatorship. The court would then engage in a substituted
judgment inquiry to determine whether the will comports with
"the decision that the protected person would have made if not
disabled, to the extent that the decision can be ascertained."
G. L. c. 190B, § 5-407 (e).
Although the decree here did not authorize the conservator
to make a will, were Olson still living, the court could have
later conferred that power on the conservator and approved the
2018 document as Olson's will after a substituted judgment
hearing. See G. L. c. 190B, § 5-425 (court may confer
§ 5-407 [d] powers on conservator "at the time of appointment or
later"). The objectors conceded as much at oral argument. In 17
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. Wolfe, 440 Mass. at 704, quoting
Massachusetts Comm'n Against Discrimination v. Liberty Mut. Ins.
Co., 371 Mass. 186, 190 (1976). See G. L. c. 190B, § 1-102 (a)
("This chapter shall be liberally construed and applied to
promote its underlying purposes and policies"). 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. G. L. c. 190B, § 1-102 (b) (2). See
Zimmerling v. Affinity Fin. Corp., 86 Mass. App. Ct. 136, 142-
143 (2014) (declining to construe provision of Uniform
Commercial Code in manner that would be contrary to one of
enumerated purposes). 18
Accordingly, we conclude that the 2018 document may be
submitted to probate if the conservator is able to prove with
extrinsic evidence that Olson intended it to be her will. We
express no view on the underlying factual question of Olson's
intent. We agree with the objectors that that question is not
properly before us as the conservator did not cross-move for
summary judgment on the ground that no issue of material fact is
in dispute.
The conservator has requested recovery of his appellate
attorney's fees to be paid from the estate. We allow the
request under the authority of G. L. c. 190B, § 3-720, and G. L.
c. 215, § 45.8 Within fourteen days of the date of this opinion,
the conservator may file an application for fees, and the
objectors may have fourteen days to respond. See Fabre v.
Walton, 441 Mass. 9, 10-11 (2004).
Conclusion. The decree is vacated, and the matter is
remanded for further proceedings consistent with this opinion.
So ordered.
8 The objectors' request for appellate attorney's fees is denied.