NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
22-P-741
IN THE MATTER OF THE ESTATE OF RALPH PARKER CHRISTIE.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Ralph Parker Christie (decedent) died on December 2, 2017,
shortly after his ninetieth birthday. His last will and
testament dated January 30, 2017 (will or 2017 will), named
Christopher J. Chetwynd, whom the decedent had known for three
years prior to the execution of the will, as the primary
beneficiary and nominated Chetwynd as personal representative of
the estate. Chetwynd filed a petition for formal probate of the
will and appointment as personal representative in the Probate
and Family Court; the decedent's niece, Donna J. Madore (Donna), 1
objected that the will was the product of undue influence. 2
After a trial, a judge found that Chetwynd had exercised undue
1Because Donna and David Madore share a surname, we use their first names.
2The probate judge allowed the Salvation Army's motion to intervene prior to trial. The Salvation Army joins Donna's brief in this appeal. influence over the decedent. 3 Chetwynd now appeals from the
decree denying his petition for formal probate of the will,
arguing that the judge improperly shifted the burden of proof to
Chetwynd and the evidence was insufficient to support the
finding of undue influence. We affirm.
Background. The judge found the following facts. 4
1. Decedent's relationship with Donna and Chetwynd. The
decedent spent a significant amount of time with Donna and her
husband, David Madore (David), during his lifetime. From 1990
to 2014, the decedent traveled to Washington each summer to see
the Madores and typically stayed with them for four to six
weeks. Those annual visits ceased after 2014 as the decedent's
health began to decline, but the decedent remained in touch with
the Madores by telephone a few times per month.
By fall of 2014, the decedent was suffering from dementia,
confusion, poor judgment, decreased comprehension, impulsivity,
and memory deficits. His physical health began to decline the
following year. He used a walker as his strength, balance, and
endurance decreased.
3 Donna also objected based on lack of capacity. The trial judge found that the decedent had testamentary capacity at the time that the will was executed, and the parties make no argument about that finding.
4 To the extent some of the facts contained herein were disputed at trial, we conclude that these facts were supported by the record based on our own independent review.
2 It was around this time that the decedent met Chetwynd. In
January 2014, the decedent brought his car in for service at the
car care center where Chetwynd worked. The decedent was eighty-
six years old and lived by himself in an apartment in Quincy.
As the decedent sought further repairs for his car, he formed a
relationship with Chetwynd. Chetwynd and the decedent had
several shared interests, including baseball, cars, and history,
as well as their mutual involvement in the Free Masons. As
their friendship formed and until his death in 2017, the
decedent spent holidays and birthdays with Chetwynd and
Chetwynd's family, including his two children, and attended
other events with them.
Shortly after they met, Chetwynd advised the decedent that
he should replace his car and brought him to the car dealership
where Chetwynd had previously worked. The decedent purchased
two vehicles from that dealership over the course of a few
months in 2014. Not long after the decedent purchased the first
vehicle, a 2010 Chrysler Sebring, he was involved in a car
accident that caused the total loss of the vehicle. The
decedent's driver's license was suspended as a result of the
accident; however, the decedent purchased a brand new fire
engine red Dodge Challenger with a V6 engine (Challenger). The
decedent ultimately was unsuccessful in getting his license
3 reinstated, and the dealership refused to let him return the
Challenger.
Because the decedent did not have a license, he relied on
Chetwynd for transportation, including to the grocery store and
medical appointments, beginning in the summer of 2014. Less
than a year later, in the spring of 2015, Chetwynd was involved
in a car accident in his own vehicle while driving the decedent
to an appointment. After the accident, Chetwynd and the
decedent executed an agreement that the decedent would transfer
title of the Challenger to Chetwynd with the option to rescind
the "gift" at any time. The decedent remained financially
responsible for all expenses related to the vehicle under the
agreement and he paid all expenses for the Challenger, including
car payments, insurance, taxes, maintenance, and repairs, until
his death. In exchange, Chetwynd agreed to provide rides to the
decedent, but also was permitted to use the Challenger for his
own personal and professional use. The car agreement was
drafted at Chetwynd's request by Eileen Lawlor, an attorney with
whom he was acquainted; Lawlor did not review the agreement with
the decedent before it was executed. Shortly after the
agreement was executed, Chetwynd also began assisting the
decedent in writing checks, including to pay for installation of
a spoiler on the Challenger. Although Chetwynd had been in
4 contact with the Madores about the decedent at this point,
Chetwynd did not give them a copy of the car agreement.
2. Healthcare proxy and power of attorney. In 2015, on
advice from an elder services agency, the Madores and Chetwynd
discussed whether the decedent would agree to put in place a
power of attorney and healthcare proxy. If the decedent agreed,
Donna offered to make an appointment with the same attorney who
represented the decedent in connection with his driver's
license, and to travel to Massachusetts to attend the meeting.
The decedent in fact already had executed both documents in
2011, and named Attorney Mark A. Leahy as his agent and attorney
in fact as well as his healthcare proxy. Attorney Leahy had
represented the decedent since at least 2002.
Notwithstanding the prior healthcare proxy, Chetwynd
printed a form from the Internet and filled it out listing
himself as the decedent's healthcare proxy. The decedent then
signed the form (HCP). Chetwynd did not give the Madores a copy
of the HCP, but they were aware of the HCP after the fact.
On Chetwynd's own initiative in January 2016, he contacted
Attorney Rebecca McWilliams, whom he had known for several years
through work on political campaigns, to prepare estate planning
documents for the decedent. Before McWilliams spoke with the
decedent, she drafted and sent to Chetwynd a power of attorney.
The following month, Chetwynd took the decedent to McWilliams's
5 office where the decedent executed a so-called "springing"
durable power of attorney (2016 POA) that appointed Chetwynd as
his attorney in fact contingent on first obtaining a written
statement from a licensed physician indicating that the decedent
was incapable of "attending effectively to [his] financial
affairs by reason of mental or physical disability." At the
time, the decedent told McWilliams that he did not have a power
of attorney, despite his previous appointment of Attorney Leahy.
Chetwynd did not tell the Madores about the 2016 POA and they
learned of it only days before trial.
During Attorney McWilliams's meeting with the decedent, she
offered to assist the decedent with his investments and the
decedent agreed. McWilliams was licensed to sell life insurance
and mutual fund-based investments, and also worked as an
independent contractor with Primerica. In March 2016, she took
the decedent to the registry of motor vehicles to obtain an
identification card and then to his various financial
institutions to close his accounts. The decedent consolidated
and transferred his funds, totaling around $450,000, to a
Primerica account. The decedent maintained a checking account
and Chetwynd continued to write checks from that account which
the decedent signed, including one for $5,695, which was a loan
from the decedent to Chetwynd's boss. Chetwynd served as a
6 guarantor on the loan, but it eventually was repaid in full by
his boss.
3. Will and subsequent POA. In early January 2017, the
decedent was admitted to the hospital and diagnosed with
pneumonia and congestive heart failure. The decedent later was
transferred to the Bostonian Rehab & Nursing Center (Bostonian),
at Chetwynd's request because his sister worked there. Chetwynd
frequently visited the decedent at the Bostonian. Chetwynd also
used the decedent's debit card during this time to make
purchases for both himself and the decedent.
While the decedent was at the Bostonian, Chetwynd told
Attorney McWilliams that the decedent wanted to put Chetwynd in
his will. McWilliams then met with the decedent alone and went
over changes that the decedent wanted to make to his will. At
the time, the decedent had a will that he had executed in 2012
(2012 will). Chetwynd retrieved the 2012 will from the
decedent's apartment and provided a copy to McWilliams. The
2012 will nominated Attorney Leahy as personal representative of
the estate. The 2012 will devised one-half of the decedent's
estate to his church, the Quincy Community United Methodist
Church of Wollaston (church), one-quarter to the decedent's
7 former spouse (who had since passed away), one-eighth to the
Salvation Army, and one-eighth to the Madores. 5
On January 30, 2017, the decedent executed the will at
issue in his room at the Bostonian and in the presence of two
witnesses and Attorney McWilliams. The will devised $1,000 to
the church and the decedent's currency collection, vehicles, and
real estate, if any, to Chetwynd. After those distributions,
one-quarter of the remainder of the estate was left to the
Madores and three-quarters to Chetwynd. The will also appointed
Chetwynd as personal representative of the estate. On the same
day, the decedent executed another springing durable power of
attorney (2017 POA) that was identical to the 2016 POA.
Chetwynd brought the decedent's checkbook to the Bostonian that
day; the decedent did not fill out but did sign the check for
McWilliams's services. McWilliams provided Chetwynd with
electronic copies of the will and the 2017 POA, but Chetwynd did
not tell the Madores that the decedent had executed a new will
at that time.
5 The decedent also executed two earlier wills, in 2011 and 2012, that also nominated Attorney Leahy as executor. The 2011 will devised all of the decedent's property to the Quincy Memorial Church of Wollaston. The prior 2012 will included the same bequests as the subsequent 2012 will except that the bequest to the church was limited to use for maintenance, care, repair, and improvement of its building and grounds.
8 4. Decedent's care. The decedent was discharged from the
Bostonian in February 2017, and required twenty-four hour care.
This care was provided by Chetwynd, his sister, 6 his girlfriend,
and healthcare aides from an agency. The caregivers were paid
using the decedent's funds, with Chetwynd's sister and
girlfriend, who had no recent home healthcare experience,
receiving the same hourly rate as the healthcare aides.
Chetwynd was not paid for providing care but needed a place to
stay and lived with the decedent without paying rent or
contributing to utilities for a period of time. 7 During this
time, Chetwynd used the decedent's debit card to purchase
furniture for the apartment. 8 Chetwynd also used his authority
under the POAs to replace a rug in the decedent's apartment,
even though he never received a written certification from a
doctor that the decedent was incapable of attending to his
finances.
6 A different sister than the one who worked at the Bostonian.
7 Chetwynd was going through a divorce at the time and had moved out of his marital home.
8 Chetwynd also installed video cameras in the decedent's apartment. At one point, Chetwynd confronted an employee of the apartment complex after learning from video footage that she had asked the decedent whether he ever was repaid for the loan to Chetwynd's boss.
9 Chetwynd eventually moved out of the decedent's apartment
and into an apartment owned by a friend. The decedent's health
continued to decline and he again was admitted to the hospital
followed by another stay at the Bostonian. The decedent
returned to his apartment, where he began to receive hospice
care in addition to twenty-four hour care. Chetwynd did not
inform the Madores that the decedent was receiving hospice care.
Thereafter, while the decedent was receiving hospice care,
Chetwynd set up online transfers between the decedent's
investment account and the decedent's checking account in order
to pay for the decedent's expenses. Chetwynd also requested
that Attorney McWilliams prepare a personal loan agreement for
him to borrow money from the decedent to establish a new
automotive business. McWilliams never reviewed that agreement
with the decedent, but the decedent and Chetwynd executed the
loan agreement in August 2017. Pursuant to the loan agreement,
Chetwynd borrowed $40,000 from the decedent; the note became
payable on January 1, 2019, and bore an interest rate of less
than one percent. Chetwynd never repaid the decedent or his
estate for that loan.
While in hospice care, the decedent moved into Chetwynd's
apartment from late September 2017 until his death that
December. After the decedent moved in, Chetwynd's landlord (and
10 friend) increased the monthly rent from $800 to $2,000. 9
Chetwynd paid that monthly rent with checks from the decedent's
checking account that Chetwynd signed as "POA."
A month before the decedent passed away, the Madores asked
Chetwynd about the decedent's expenses and estate plan.
Chetwynd informed David that the decedent had changed his estate
plan and stated that David was "in the will." Chetwynd did not
tell the Madores that Chetwynd was the primary beneficiary of
the will or that he recently had borrowed $40,000 from the
decedent. During this conversation, David learned that the
decedent's cost of care was $4,000 per month. This information
concerned David because the decedent always had been frugal and
David previously understood that the decedent was receiving care
at no cost.
5. Present action. The decedent passed away on December
2, 2017. The following month, Chetwynd filed a petition for
formal probate of the 2017 will. Donna filed a notice of
appearance and objection supported by an affidavit. A seven-day
trial ensued. At the beginning of the sixth day of trial, the
judge announced her finding that Chetwynd bore the burden of
proving that the will was not the product of undue influence
because Chetwynd was in a fiduciary relationship with the
9 Chetwynd was unemployed at the time because the car care center recently had closed.
11 decedent at the time the will was executed. After the trial,
the judge issued detailed findings of fact and conclusions of
law. The judge explained that the 2016 POA created a fiduciary
relationship such that Chetwynd bore the burden of proof, and
ultimately found that the will was the product of undue
influence. A decree entered denying Chetwynd's petition for
formal probate of the will. This appeal followed.
Discussion. "[W]e do not set aside a judge's findings of
fact unless they are plainly wrong . . . or clearly erroneous"
(quotations omitted). Rood v. Newberg, 48 Mass. App. Ct. 185,
190 (1999). "A finding [of fact] is 'clearly erroneous' 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" (quotation
omitted). Matter of the Estate of Moretti, 69 Mass. App. Ct.
642, 651 (2007).
"In applying this standard, the judge's assessment of the quality of the testimony is entitled to our considerable respect because it is the trial judge who, by virtue of [her] firsthand view of the presentation of evidence, is in the best position to judge the weight and credibility of the evidence" (quotation omitted).
Id.
Chetwynd challenges the judge's allocation of the burden of
proof on the issue of undue influence as well as the sufficiency
12 of the evidence supporting the finding of undue influence. We
discuss each in turn.
1. Burden of proof. The party contesting the validity of
a will ordinarily bears the burden of proving undue influence.
See Rempelakis v. Russell, 65 Mass. App. Ct. 557, 563 (2006).
"However, in cases involving a fiduciary, the fiduciary who
benefits in a transaction with the person for whom he is a
fiduciary bears the burden of establishing that the transaction
did not violate his obligations" (quotation omitted). Matter of
the Estate of Urban, 102 Mass. App. Ct. 284, 290 (2023). A
fiduciary must prove the absence of undue influence only where
he has taken part in the transaction at issue. See id.
"Although some fiduciary relationships, such as that
between guardian and ward, are created by law, others arise from
the nature of the parties' interactions" (quotation omitted).
Germain v. Girard, 72 Mass. App. Ct. 409, 413 (2008). "Where
the fiduciary relationship is not one created by law, the
existence of the relationship ordinarily is a mixed question of
law and fact for which the party asserting the relationship
bears the burden" (quotation omitted). Id.
Chetwynd argues that he was not in a fiduciary relationship
with the decedent because his authority to act under the 2016
and 2017 POAs only was triggered on receipt of written
certification from a physician and no such certification was
13 ever obtained. This argument is belied by the fact that
Chetwynd admitted to exercising authority under the POAs
beginning in March 2017. Although Chetwynd did not exercise
that purported authority until two months after the will was
executed, the judge was free to rely on the fact that Chetwynd
treated the POA as effective without the requisite certification
from a physician when deciding whether Chetwynd was a fiduciary
at the time the will was executed. For this reason, we discern
no error in the judge's finding that Chetwynd was a fiduciary. 10
Moreover, other facts support the conclusion that Chetwynd
was a fiduciary. By January 2017, the decedent had been reliant
on Chetwynd for transportation for two and one-half years,
Chetwynd held title to a new car paid for by the decedent, the
decedent made a loan to Chetwynd's boss, Chetwynd assisted the
decedent in writing checks, Chetwynd had access to and used the
decedent's debit card, Chetwynd had access to the decedent's
apartment and his personal documents like his 2012 will, the
decedent had named Chetwynd as his healthcare proxy, and
Chetwynd made the arrangements for the decedent to execute the
new estate plan with Chetwynd's attorney of choice. See UBS
10Given the facts of this case, we do not pass on the issue whether a springing power of attorney always creates a fiduciary relationship at the moment of execution or whether that relationship arises only after the triggering event specified in the power of attorney occurs.
14 Fin. Servs., Inc. v. Aliberti, 483 Mass. 396, 406 (2019)
(fiduciary relationship arises where one is dependent on
another's judgment in business affairs or property matters).
See also Germain, 72 Mass. App. Ct. at 413 (fiduciary
relationship existed where son-in-law managed decedent's
household affairs and expenses for part of year, and oversaw
preparation of will due to decedent's failing health). Contrast
Erb v. Lee, 13 Mass. App. Ct. 120, 125 (1982) (mere fact,
without more, that individual was decedent's "friend and
housekeeper" insufficient to "rise to the level of a
fiduciary").
Chetwynd also took part in the decedent's estate planning
and benefitted from it. Chetwynd was pivotal in the decedent's
execution of the 2017 will -- he selected Attorney McWilliams to
handle the estate plans, told her that the decedent wanted to
add Chetwynd as a beneficiary, provided her with the 2012 will,
and coordinated payment for her services from the decedent's
account. Chetwynd also played an important role in the
decedent's financial affairs and decisions about his property,
including when he was in the hospital and the Bostonian, as
described above. See Matter of the Estate of Moretti, 69 Mass.
App. Ct. at 652 (influence over decedent's decisions regarding
property relevant to determining whether fiduciary took part in
transaction). Finally, there is no doubt that Chetwynd stood to
15 benefit from the execution of the will. The prior will left
nothing to Chetwynd; he was the primary beneficiary under the
new will and stood to inherit more than $250,000. Accordingly,
the judge properly allocated the burden of proof to Chetwynd.
2. Sufficiency. "Undue influence . . . creates a
situation where the victim's own free will is destroyed or
overcome such that what he does, his action, is contrary to his
true desire and free will." Howe v. Palmer, 80 Mass. App. Ct.
736, 740 (2011).
"Four considerations are usually present in a case in which a supportable finding of undue influence has been made. These involve showings that an (1) unnatural disposition has been made (2) by a person susceptible to undue influence to the advantage of someone (3) with an opportunity to exercise undue influence and (4) who in fact has used that opportunity to procure the contested disposition through improper means."
Matter of the Estate of Moretti, 69 Mass. App. Ct. at 654–655,
quoting Heinrich v. Silvernail, 23 Mass. App. Ct. 218, 223
(1986). A fiduciary generally can meet the burden of proof by
showing that the principal made the bequest with the advice of
independent counsel. See Matter of the Estate of Urban, 102
Mass. App. Ct. at 291.
a. Independent legal counsel. Chetwynd first argues that
he satisfied his burden of proof because the decedent received
independent legal advice from Attorney McWilliams prior to
executing the will. While the trial judge did not make an
16 explicit finding on the issue, the judge's subsidiary findings
support the conclusion that that McWilliams did not provide
independent legal counsel. See Germain, 72 Mass. App. Ct. at
413 (subsidiary facts established existence of fiduciary duty in
absence of express finding). The judge found that Chetwynd
chose to reach out to his own attorney contacts instead of the
decedent's former estate planning attorney, Attorney Leahy, with
whom the decedent had had a professional relationship since at
least 2002. Notably, the judge also found that Chetwynd
selected McWilliams to provide estate planning advice to the
decedent because "he knew that, due to their pre-existing
relationship, she would not question [Chetwynd's]
representations to her regarding the [d]ecedent's desired estate
plans." See Matter of the Estate of Moretti, 69 Mass. App. Ct.
at 643-644 (to satisfy fiduciary's burden, "the legal
representation provided must be truly independent, with the
lawyer's loyalty flowing to the client testator alone").
Chetwynd was the primary person in communication with
Attorney McWilliams. Indeed, he was the one who notified
McWilliams that the decedent wanted to add Chetwynd as a
beneficiary. Chetwynd and McWilliams also "discussed and agreed
upon" the date that the will would be executed, with Chetwynd
agreeing to bring the decedent's checkbook to the Bostonian to
ensure McWilliams was paid that day. Moreover, despite the fact
17 that McWilliams met with the decedent alone on two occasions
before the will's execution, the will included certain obvious
mistakes that called into question how carefully it was reviewed
with the decedent -- i.e., the decedent's last name was spelled
incorrectly in the first line of the will and his town of
residence was incorrect on the third page. 11
Attorney McWilliams also engaged in other conduct that
supported an inference that she did not have undivided loyalty
to the decedent. She prepared the original POA in 2016 before
she even met with the decedent, set up a financial relationship
with the decedent such that she managed his investments,
prepared an estate plan initially on Chetwynd's request, and
later drafted the personal loan agreement for Chetwynd that she
never reviewed with the decedent. 12 When taken together, this
evidence was sufficient to show that Chetwynd intruded into the
relationship between McWilliams and the decedent, such that he
undermined the independence of the legal representation received
with respect to the will. Contrast Matter of the Estate of
Urban, 102 Mass. App. Ct. at 291.
11The judge did not credit all of McWilliams's trial testimony and McWilliams kept no notes from her meetings with the decedent.
12The judge expressly found that the decedent did not receive independent legal advice prior to executing the agreement to lend Chetwynd $40,000.
18 b. Finding of undue influence. Ample evidence was
presented to support the judge's findings on all four factors of
the undue influence claim. The disposition of the majority of
the estate to a person whom the decedent had known for a few
years was unnatural. Although Chetwynd had helped the decedent
prior to the execution of the will, the decedent had given
Chetwynd sole use of a brand new vehicle at no cost other than
gas expenses in exchange for transportation assistance. The
decedent through his earlier wills had shown a desire to make a
large bequest to his church. The decedent had stopped attending
church regularly by 2017, but he still regarded aspects of his
faith as "important" at the time he was admitted to the
Bostonian. See Matter of the Estate of Moretti, 69 Mass. App.
Ct. at 657 ("sudden and dramatic change" of estate plans in
favor of new acquaintance evidence of unnatural distribution).
Contrast Heinrich, 23 Mass. App. Ct. at 224 (niece not natural
object of uncle's affection where there had been virtually no
communication between them for years).
The decedent also was susceptible to undue influence due to
his reliance on Chetwynd for transportation and his failing
health. The decedent was in his mid- to late eighties, and his
mental and physical health had declined over the three-year
period that he knew Chetwynd. By the time that the decedent
executed the will, he had memory problems and dementia, and
19 recently had been diagnosed with pneumonia and congestive heart
failure. As a result, he had been in the hospital and in the
Bostonian in the month prior. Although the decedent was able to
live alone prior to this hospital admission, he required twenty-
four hour care following his discharge until he passed away.
See Heinrich, 23 Mass. App. Ct. at 223 (decedent susceptible to
undue influence given age, weakened physical condition, and
total dependency on others).
The findings also support the conclusion that Chetwynd had
an opportunity to exercise undue influence over the decedent and
used the opportunity to procure his status as the primary
beneficiary under the will. The judge found, and the record
supports, that Chetwynd "gave [the Madores] carefully curated
updates about the [d]ecedent, sharing health and outing related
updates," without disclosing the financial benefits received by
Chetwynd. The judge also found that Chetwynd carefully
documented his activities with the decedent in photographs, "to
avoid arousing suspicion in the [Madores] and to defeat any
future allegations that [Chetwynd] should not have been the
primary beneficiary." In his communications with the Madores,
Chetwynd did not disclose the $5,000 loan to his boss, the car
agreement that essentially gifted the Challenger to Chetwynd, or
the plans to execute a new will naming Chetwynd as the primary
beneficiary. See Matter of the Estate of Sharis, 83 Mass. App.
20 Ct. 839, 844 (2013) ("aura of secrecy" around estate planning
supported finding of undue influence).
The judge further found that Chetwynd took steps to insert
himself into the decedent's life over the three years prior to
the execution of the will. The decedent came to rely on
Chetwynd for transportation, socialization, and advice. Once
Chetwynd had gained the decedent's trust, Chetwynd contacted his
own acquaintances to draft various agreements and estate
planning documents for Chetwynd's own benefit. This evidence
was sufficient to support the judge's finding of undue
influence.
Chetwynd also argues that the judge's finding must be set
aside because she improperly relied on events occurring after
the execution of the will in her analysis. Of course undue
influence must be operative at the time that the will is
executed even if "an objective observer at the execution could
detect no indication of it." Erb, 13 Mass. App. Ct. at 125.
However, "[n]either direct evidence nor evidence of
appropriation of assets for personal use before death was
required to support an inference of undue influence" (emphasis
added). Matter of the Estate of Sharis, 83 Mass. App. Ct. at
846. That Chetwynd used the decedent's assets for his own
personal gain and that of his friends and family -- including
the $40,000 loan that the decedent made without the benefit of
21 independent legal counsel and that has never been
repaid -- supports the conclusion that undue influence was at
play even in the months before that conduct. See id. at 845-846
(fiduciary preserving assets bequeathed to him after execution
of will and depleting assets bequeathed to others evidence of
undue influence). Even excluding Chetwynd's conduct postdating
the execution of the will, Chetwynd bore the burden of proving
the absence of undue influence and the judge's finding that he
failed to carry that burden was not clear error. 13
Decree entered April 13, 2020, affirmed.
By the Court (Vuono, Milkey & Hand, JJ. 14),
Assistant Clerk
Entered: May 10, 2024.
13 Donna's request for attorney's fees is denied.
14 The panelists are listed in order of seniority.