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
23-P-1189
WENDY ERIKSON
vs.
BRUCE ERIKSON & others. 1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendants appeal from a judgment of a judge of the
Land Court that concluded that one of the defendants, Bruce
Erikson, had unduly influenced his mother, Doris Erikson, and
therefore voided a deed by which Doris granted a parcel of real
property in Danvers (the subject property) to the other
defendants, Danielle Erikson and Eva Erikson. 2 The defendants
argue that the trial judge erred in concluding that Bruce unduly
influenced Doris in executing the deed. We disagree and
therefore affirm.
1 Danielle K. Erikson and Eva Erikson.
2Because so many of the parties share a last name, after the first mention of each party, we use first names to identify them. Facts. 1. Wendy Erikson and the subject property. The
judge found the following facts. Doris and her husband, Herman
Erikson, had three children: Wendy Erikson, Bruce Erikson, and
Gayle O'Connell. Around August 1985, Doris and Herman acquired
the subject property. They told the seller that this property
was "exactly what [they wanted] for [their] daughter, Wendy."
Doris told Wendy that they purchased this property to be her
inheritance. Although her parents never put the subject
property in her name because they were concerned about the
implications for the property if Wendy were to marry in the
future, Wendy has lived at the property since approximately
1985, the year her parents purchased it. Wendy and her parents
agreed that Wendy was responsible for the property's upkeep,
utilities, insurance, and taxes, and Wendy made major repairs
and improvements to the property during the years she resided at
the property. In 2004, Wendy suffered a motorcycle accident,
and became paraplegic.
2. Doris's condition. After Herman's death in 1993, Doris
began calling Wendy, Gayle, and the Danvers police department,
telling them that people were coming into her home and that
things were missing. Wendy and Gayle eventually met with a
psychologist from the police department to discuss Doris's
behavior and ways to cope with it.
2 In 2003, Doris conveyed a condominium unit to Noah Erikson,
one of Bruce's children. Doris executed two separate deeds
purporting to convey the same property to Noah, and after the
conveyance, Doris and Noah disputed whether this conveyance was
a gift or Noah owed Doris money for the property. The judge in
this case, which does not involve that conveyance, concluded
that Doris did not fully comprehend the consequences of signing
those deeds.
Doris moved in with Bruce and his family in 2005. Around
this time, Doris also struggled with mobility issues.
3. Bruce, Doris, and the subject property. Bruce worked
as a registered investment advisor for several years. Bruce's
company began to struggle in 2001 and eventually closed around
2008. As a result, Bruce struggled financially at this time, so
much so that he sought a reduction in his alimony payments to
his previous spouse in 2003.
Doris had invested with one of Bruce's investment
companies, and around the time she lived with Bruce and his
family, Doris also wrote checks for substantial sums to Bruce
and members of his family. While she lived with Bruce and his
family, on November 21, 2006, Doris executed a deed, which
purported to convey the subject property in which Wendy lived to
Bruce's twin minor daughters, Danielle and Eva, retaining a life
estate for Doris. Doris was eighty-one years old at the time,
3 while Danielle and Eva were six years old. Wendy was never
informed of this deed during Doris's lifetime. The deed was
recorded the day it was executed. Subsequently, in 2007, Bruce
asked his son Robb, who was thirty-seven years old, if he would
agree to have the house Wendy lived in put in his name.
4. Subsequent events. In 2007 or 2008, Doris moved into
Turtle Woods, a community that had staff to assist residents as
needed. Doris later moved to a nursing home. The staff at the
nursing home told Wendy that Doris continued to suffer from
anxiety and paranoia throughout her time there. Doris passed
away on May 21, 2020. She died intestate, so her estate would
have gone to her descendants per capita at each generation. See
G. L. c. 190B, § 2-103.
Wendy first learned of the 2006 deed purporting to convey
the house she lived in to Danielle and Eva after Doris's death.
On September 15, 2020, Wendy filed the underlying complaint
seeking to have the 2006 deed voided on grounds including undue
influence, naming Bruce, Danielle, and Eva as defendants. The
ensuing trial took place over Zoom.
At trial, during a sidebar in the middle of Bruce's
testimony, Bruce asked a person off-screen, "What's the answer
to the question?" and reviewed documents. When asked whether he
had reviewed documents or conversed with anyone during the
sidebar, Bruce lied, stating that he had only asked for a glass
4 of water. Danielle also interacted with someone off-screen
during her testimony and answered misleadingly when asked about
the interaction. Based on Bruce's and Danielle's conduct while
testifying, the trial judge credited only the portions of
Bruce's and Danielle's testimony favorable to the defendants
that were corroborated by another source.
The trial judge concluded that Bruce exercised undue
influence over Doris and voided the 2006 deed. This appeal
followed.
Discussion. 1. Preliminary matters. Before we address
the merits of this appeal, we must resolve three initial issues.
a. Statute of limitations. First, the defendants argue on
appeal that the trial court erred in concluding that Wendy's
claims were not barred by the statute of limitations. The
three-year statute of limitations set out in G. L. c. 260, § 2A,
applies to undue influence claims. Howe v. Palmer, 80 Mass.
App. Ct. 736, 742 (2011). Under the discovery rule, though, the
statute of limitations does not start to run until "the
plaintiff discovers, or reasonably should have discovered, 'that
[she] has been harmed or may have been harmed by the
defendant[s'] conduct.'" Koe v. Mercer, 450 Mass. 97, 101
(2007), quoting Bowen v. Eli Lilly & Co., 408 Mass. 204, 205
(1990).
5 Here, the defendants raised the statute of limitations in a
motion for summary judgment, arguing that Wendy may not take
advantage of the discovery rule because her failure to conduct a
title search or hire an attorney to help her discern when her
cause of action accrued did not render her claim unknowable.
The trial judge denied the motion for summary judgment on this
issue, concluding that the discovery rule applied, but reserving
for trial the factual question of when Wendy discovered that the
subject property had been conveyed to Danielle and Eva.
Preliminarily, although Wendy argues otherwise, we can and will
review the trial judge's legal determination that the discovery
rule applies. See Waxman v. Waxman, 84 Mass. App. Ct. 314, 321-
322 (2013), citing Bacon v. Federal Kemper Life Assur. Co., 400
Mass. 850, 851 n.3 (1987) (noting that though generally "a party
cannot appeal from the denial of summary judgment on a claim or
defense after a trial on the merits of that claim or defense,"
but concluding that denial of summary judgment was reviewable
where, at trial, the pertinent issue -- here applicability of
the discovery rule -- was treated "as resolved and located
beyond the scope of triable issues").
The defendants rely in part on Friedman v. Jablonski, 371
Mass. 482, 486 (1976), in arguing that Wendy cannot take
advantage of the discovery rule because she failed to conduct a
title search or hire an attorney to help her discern when her
6 cause of action accrued. This case, however, is a far cry from
Friedman, which involved alleged misrepresentations during the
sale of a parcel of land, and the plaintiffs "could reasonably
have known" of the alleged misrepresentations by the time they
accepted a deed to the land by checking the registry of deeds.
Friedman, 371 Mass. at 486. Here, however, "there was no event,
much less one comparable to the purchase of real estate in
Friedman, that should have prompted the plaintiff to check the
records at the registry of deeds." Pruner v. Clerk of Superior
Court, 382 Mass. 309, 312 n.7 (1981). Wendy, therefore, did not
forfeit the benefits of the discovery rule by failing to do so.
Given that the discovery rule applies, the statute of
limitations for Wendy's undue influence claim began to run when
she discovered or reasonably should have discovered that she had
been harmed by the defendants' conduct. See Koe, 450 Mass. at
101. At trial, the defendants argued that Wendy reasonably
should have known that the subject property had been conveyed to
Danielle and Eva more than three years prior to her filing this
action because she should have applied to the town for permits
for various home improvement projects. The Danvers building
commissioner testified that only the homeowner or a licensed
contractor can apply for these permits. The defendants argued
that, had Wendy applied for these permits as she was supposed
to, she would have had to discuss the projects and the ownership
7 of the property with Doris and would have learned that Doris had
conveyed the property to Danielle and Eva.
The trial judge implicitly rejected this argument, finding
that Wendy first learned of the deed conveying the subject
property to Danielle and Eva shortly after Doris's death. We
see no clear error in the judge's rejection of the argument
that, because she should have applied for certain town permits,
Wendy should have known about the conveyance more than three
years before she filed this action. Further, the trial judge's
finding that Wendy did not learn of the deed conveying the
subject property to Danielle and Eva until after her mother's
death is supported by Wendy's testimony. While the defendants
point to testimony that Gayle told Wendy more than three years
prior to her filing that the house would go to Danielle and Eva
when Doris died, the judge need not have credited that
testimony. It thus was not clear error for the trial judge to
credit Wendy's testimony and find that she did not know about
the deed until after Doris's death and that this lack of
knowledge was objectively reasonable. See Koe, 450 Mass. at
101. See also Edinburg v. Edinburg, 22 Mass. App. Ct. 199, 203
(1986) ("Where there are two permissible views of the evidence,
the factfinder's choice between them cannot be clearly
erroneous" [citation omitted]). The statute of limitations
began to run after May 21, 2020, the date of Doris's death, so
8 Wendy's claim, brought on September 15, 2020, was not time
barred.
b. Hearsay. Next, the defendants argue that the trial
court erred in admitting hearsay statements of Doris and Herman
regarding their reason for purchasing the subject property,
their representations to Wendy about the property's ownership,
their statements about arrangements with Wendy regarding
reimbursement of the carrying costs of the property, and "any
related conversations." Under G. L. c. 233, § 65, in civil
cases, statements made by deceased declarants are admissible
despite the rule against hearsay "if the court finds that [the
statements were] made in good faith and upon the personal
knowledge of the declarant." There is no suggestion here that
the statements were not made in good faith, but the defendants
argue that this exception does not cover statements of opinion.
Whether or not that is true, the statements of their reasons for
purchasing the property, their intention that Wendy reside
there, and their arrangement with Wendy were not statements of
opinion, and all fall within this statutory hearsay exception.
See American Family Life Ins. Co. of Columbus v. Parker, 488
Mass. 801, 803, 811 & n.11 (2022) (ex-wife's testimony that
deceased ex-husband had intended for proceeds of his life
insurance policy to support her and their sons admissible under
§ 65).
9 c. Parol evidence. The defendants also argue that these
statements were admitted in violation of the parol evidence
rule. The parol evidence rule "bars the introduction of prior
or contemporaneous written or oral agreements that contradict,
vary, or broaden" a written contract that the parties intended
to be a statement of their complete agreement (citation
omitted). Winchester Gables, Inc. v. Host Marriott Corp., 70
Mass. App. Ct. 585, 591 (2007). Here, however, we are not
interpreting a written agreement; instead, we are determining
whether the circumstances surrounding a deed show that it was
procured through undue influence. As such, the parol evidence
rule does not apply.
2. The merits. Having addressed these initial matters, we
turn to the merits. A deed may be invalidated if it was
procured by undue influence. Howe, 80 Mass. App. Ct. at 740.
"Any species of coercion, whether physical, mental or moral,
which subverts the sound judgment and genuine desire of the
individual, is enough to constitute undue influence." Neill v.
Brackett, 234 Mass. 367, 369 (1920). "A claim of undue
influence is comprised of four elements: '(1) an 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
10 improper means.'" Matter of the Estate of Sharis, 83 Mass. App.
Ct. 839, 842 (2013), quoting O'Rourke v. Hunter, 446 Mass. 814,
828 (2006).
We review a trial judge's findings, including findings that
the elements of undue influence have been met, for clear error.
See Hernon v. Hernon, 74 Mass. App. Ct. 492, 497-499 (2009),
citing Matter of the Estate of Moretti, 69 Mass. App. Ct. 642,
650-651 (2007). "A finding is clearly erroneous . . . when
there is no evidence to support it, or 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 made.'" Michelon v. Deschler, 96 Mass. App.
Ct. 815, 816 (2020), quoting Care & Protection of Olga, 57 Mass.
App. Ct. 821, 824 (2003).
Here, neither the trial judge's finding that the deed was
procured through undue influence, nor his subsidiary findings,
were clearly erroneous. To begin with, the trial judge did not
err in finding that Bruce had a confidential relationship with
Doris. "'[W]here a confidential relationship exists it
generally takes less to establish undue influence on the part of
beneficiaries' than in the ordinary case" where no such
relationship exists. Cleary v. Cleary, 427 Mass. 286, 290 n.2
(1998), quoting Tetrault v. Mahoney, Hawkes & Golding, 425 Mass.
456, 465 (1997). While both parties bring up issues related to
11 fiduciary relationships and their impact on the undue influence
analysis, confidential and fiduciary relationships are two
distinct types of relationships with different legal
implications. See Heinrich v. Silvernail, 23 Mass. App. Ct.
218, 225 n.8 (1986). Where a fiduciary relationship exists, if
the fiduciary benefits from a transaction with their principal,
the burden of proof shifts to the fiduciary to show that they
did not unduly influence the grantor; where a confidential
relationship exists, it is one factor that supports a finding of
undue influence. Cf. Cleary, supra at 290, 292-293 & n.2.
Close relationships that lack "the degree of reliance that
usually lie[s] at the core of recognized fiduciary
relationships" may still amount to confidential relationships.
Heinrich, supra. For example, in Heinrich, a confidential
relationship existed between a social worker and her client
where the two became close friends, the social worker visited
the client almost daily, and the social worker helped the client
with his banking and his bills. Id. at 219-220, 225.
Given that Doris had invested with one of Bruce's
investment companies and that she lived with Bruce at the time
of the deed's execution, there was adequate support for the
judge's finding that Bruce similarly had a confidential
relationship with Doris. Thus, it took "less to establish" that
Bruce unduly influenced Doris than in a case where no such
12 relationship existed (citation omitted). Cleary, 427 Mass. at
290 n.2.
a. First element. As to the first element of undue
influence, the trial judge found that the disposition in the
deed was unnatural because it was highly unusual to convey real
estate to six year old children and to retain a life estate in
property one does not intend to occupy. In the absence of any
evidence suggesting some tax-related or other reason for this
arrangement, we see no error in this finding.
b. Second element. As to the second element, age,
cognitive impairment, and dependence on others are all factors
relevant to one's susceptibility to undue influence. See Neill,
234 Mass. at 369-370; B.W. v. J.W., 67 Mass. App. Ct. 295, 299-
300 (2006). Here, Doris was eighty-one years old when she
signed the 2006 deed. Along with her age, the trial judge
credited Wendy's testimony about Doris's many encounters with
the Danvers police and her "unfounded" fears of people breaking
into her home and taking her things. Based on this, the trial
judge found that "Doris showed signs of paranoia and anxiety
. . . from at least 1995 until she died in 2020." Further, the
judge noted that there was evidence in the record that, on
another occasion, Doris had executed deeds without fully
understanding the consequences or surrounding circumstances. As
described above, Doris had previously executed two deeds
13 conveying the same single condominium to one of Bruce's sons,
and there was a disagreement between Doris and Bruce's son as to
whether this was a gift. Given all the circumstances, the trial
judge did not err in concluding that Doris, at times, suffered
from confusion about what was happening around her. The judge's
conclusion that her confusion, coupled with her age, made her
susceptible to undue influence was supported by the evidence and
not clearly in error.
The defendants take issue with the fact that there was no
expert medical testimony, medical records, or testimony from a
witness to the conveyance supporting the finding of
susceptibility. The case that the defendants rely on in arguing
that one of these types of evidence was required deals with
testamentary capacity, not susceptibility to undue influence.
See Haddad v. Haddad, 99 Mass. App. Ct. 59, 69 (2021). They
provide no authority for the proposition that such evidence was
required to support the judge's finding with respect to
susceptibility.
The defendants also claim that unrebutted testimony shows
Doris was not susceptible to undue influence. The evidence they
rely on, however, does not compel such a conclusion. Much of
the testimony they point to came from either Bruce or Danielle,
who the trial judge discredited. Although there was some
testimony suggesting Doris retained mental acuity, there was
14 also testimony tending to show that she suffered from bouts of
confusion, paranoia, and anxiety. The trial judge was free to
credit the testimony that tended to show that Doris was confused
and susceptible to undue influence, rather than testimony that
might have tended to show she was not. See Wakefield v.
Hegarty, 67 Mass. App. Ct. 772, 774 (2006).
The defendants also argue that the trial court made an
error of law in concluding that the defendants had to provide
evidence that Doris had independent counsel at the signing of
the 2006 deed, or consulted with independent counsel before
signing the deed, and that Doris understood the consequences of
the 2006 deed. They misread the judge's decision. As to
independent counsel, the judge did not require that the
defendants present evidence of this; the judge merely listed
Doris's lack of independent counsel as one of many facts that
showed that Doris was susceptible to undue influence.
Similarly, the trial judge's statement that there was no
evidence Doris understood the consequences of the deed was not a
holding that the defendants had to present some evidence to this
effect. Rather the judge was noting that, in the absence of any
such evidence, he could rely on the other record evidence to
conclude that Doris was susceptible to undue influence at the
time. There was no legal error.
15 c. Third element. Next, the trial judge did not err in
finding that Bruce had the opportunity to exercise undue
influence over Doris. The defendants argue that Doris could not
have been as dependent on Bruce and his family as the trial
judge found because she lived independently after living with
them. The fact remains, though, that Doris was living with
Bruce and his family at the time she executed the deed, and at
that time, she struggled with mobility and had reduced
independence. As such, the trial judge's finding that Bruce had
the opportunity to influence Doris was not clear error.
d. Fourth element. Finally, there was no clear error in
the judge's finding that Bruce in fact "used [his] opportunity
to procure the [deed] through improper means," as this was
supported by the record (citation omitted). O'Rourke, 446 Mass.
at 828. Bruce benefitted from this conveyance because it
benefitted his minor children, thereby reducing the financial
burden of supporting them. Further, Bruce believed he could
control the property that was conveyed to his own minor
children; he in fact tried to exercise that control by asking
one of his other children if he would have the property put in
his name. The fact that Bruce's own minor children, and no
other relative of Doris, benefitted from this conveyance,
combined with the confidential relationship between Bruce and
Doris, and the fact that Bruce sought to exercise control of the
16 property was enough to support the trial judge's finding that
Bruce did in fact procure the deed's execution by Doris through
improper means. 3
Given all this, the trial judge's conclusion that Bruce
unduly influenced Doris was not clearly erroneous. The judgment
of the Land Court is affirmed. 4
So ordered.
By the Court (Rubin, Desmond & Singh, JJ. 5),
Clerk
Entered: February 24, 2025.
3 The defendants are correct that it was error for the judge, on the basis of his conclusion that Bruce lied when he testified he "had nothing to do with the 2006 deed and had no knowledge of it," to conclude the opposite. See Kunkel v. Alger, 10 Mass. App. Ct. 76, 86 (1980) ("mere disbelief of testimony does not constitute evidence to the contrary.") As there was abundant evidence and supported findings of subsidiary fact supporting the finding not only of Bruce's knowledge but of his exercise of undue influence, this error was harmless.
4 Wendy's request for attorney's fees and costs under Mass. R. A. P. 25, as appearing in 481 Mass. 1654 (2019), is denied. See Avery v. Steele, 414 Mass. 450, 455 (1993) ("Unpersuasive arguments do not necessarily render an appeal frivolous").
5 The panelists are listed in order of seniority.