Wright v. Zantuhos

• Court: Massachusetts Appeals Court
• Decided: April 1, 2026
• Docket: AC 25-P-857
• Status: Published

Opinion

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25-P-857 Appeals Court

LOIS E. WRIGHT vs. GEORGE ZANTUHOS.1

No. 25-P-857.

Barnstable. February 3, 2026. – April 1, 2026.

Present: Blake, C.J., Meade, & Tan, JJ.

Fiduciary. Conversion. Personal Property, Bank account. Will, Power of appointment. Gift. Intent. Undue Influence.

Civil action commenced in the Superior Court Department on August 1, 2022.

The case was heard by Mark C. Gildea, J.

Gerald A. Phelps for the plaintiff. Rachel C. Hodgman for the defendant.

BLAKE, C.J. The plaintiff, Lois E. Wright, appeals from a

judgment entered after a bench trial in the Superior Court that

dismissed her complaint filed against the defendant, George

Zantuhos, alleging conversion and breach of fiduciary duty. On

1 Individually and in his fiduciary capacity as attorney-in- fact under a durable power of attorney dated November 30, 2010, and as personal representative of the estate of Helen Euerle. 2

appeal, Wright claims that the judge erred when he found that

Helen Euerle (decedent) intended for certain bank accounts

(accounts) at the Cape Cod Five Cents Savings Bank (Cape Cod 5)

to pass to Zantuhos upon her death. Wright also argues that the

decedent's will controls the disposition of these accounts, and

that the judge erred by failing to shift the burden of proof to

Zantuhos because he "was a fiduciary to [the decedent] at the

time of the transactions at issue and participated in adding his

name to the accounts." We affirm.

Background. After a jury-waived trial, the judge found the

following facts, all of which are amply supported by the record.

At the time of her death in February 2021, the decedent was 104

years of age and lived in Harwich. Her husband had predeceased

her, and she had no children. Wright is the decedent's

grandniece and lives in California. Zantuhos is the decedent's

nephew and lives in Massachusetts.

In December 1996, the decedent executed a will appointing

the parties as coexecutors (1996 will). The decedent executed a

new will in October 2003, that appointed Wright's mother and

Zantuhos as coexecutors (2003 will). Although the 1996 will and

the 2003 will made slightly different bequests, Wright and her

mother continued to receive the residue of the estate under each

will. Wright's mother passed away in August 2010. Shortly

before her mother's death, Wright and her stepbrother traveled 3

to Harwich to visit the decedent. After the visit, they both

believed that Wright would inherit the majority of the

decedent's estate, including the Cape Cod 5 accounts.

On November 30, 2010, the decedent signed a new will (2010

will). The 2010 will provided that the residue of the estate

would go to Wright, and if Wright predeceased the decedent, the

residue would go to Zantuhos and John Zantuhos. The 2010 will

also named Zantuhos and the decedent's attorney2 as coexecutors.

At that time the decedent also executed a durable power of

attorney designating Zantuhos and her attorney as her attorneys-

in-fact.

The judge made several findings about the relationship

between the decedent and each party. He found that Wright was

"very close to her great aunt and believed [the decedent] viewed

her as a granddaughter." He also found that Zantuhos and the

decedent were "close," and once Zantuhos moved to Sandwich, the

two saw each other regularly.3 In 2011, the decedent fell and

broke her hip. She recovered in a hospital and rehabilitation

facility. After she returned home, Zantuhos saw her weekly, and

as her health improved, he saw her every other week. Zantuhos

and his wife helped the decedent including by taking her on

2 The decedent's attorney passed away on July 30, 2018.

3 Before Zantuhos and his wife moved in 2000, they lived in Dracut and saw the decedent at Christmas and during the summer. 4

errands such as to the bank and the post office, and they did

her grocery shopping.

In April or May 2018, the decedent fell again. On

September 21, 2018, Zantuhos brought the decedent to the East

Harwich branch of the Cape Cod 5, as he regularly did, where at

that time she changed the ownership of three of her accounts

from the decedent, individually, to the decedent and Zantuhos,

"Joint with Survivorship (not as tenants in common)." After

signing, the decedent told Zantuhos that "the accounts were

his." Indeed, the judge found that the "action of adding

[Zantuhos] to the accounts was at the direction of" the decedent

and not the direction of Zantuhos.

On April 4, 2019, the decedent asked Zantuhos to bring her

to a different bank, where she closed an account and transferred

the funds to the Cape Cod 5. The decedent then opened a new

account with the right of survivorship at the Cape Cod 5, naming

the decedent and Zantuhos as joint owners. After this, the

decedent told Zantuhos that "she did this because she wanted him

to have the money."

On October 1, 2019, the decedent suffered another fall.

Prior to this, she was managing her own finances, but after the

fall, Zantuhos signed all checks drawn from the decedent's Cape

Cod 5 accounts under the power of attorney. Later that year,

the decedent became ill; when she returned to her home, Zantuhos 5

"set up home health care for her." In December 2020, the

decedent had another fall and her condition deteriorated; she

passed away on February 1, 2021.

On August 26, 2021, Zantuhos "filed a petition for formal

probate of [the decedent]'s 2010 [w]ill" in the Probate and

Family Court. As relevant here, the 2010 will bequeathed to

Wright 8,960 shares of Exxon stock and the residue of the

estate. Zantuhos was bequeathed 1,120 shares of Exxon stock.

On August 1, 2022, Wright filed this action alleging that

Zantuhos's "taking of possession of the balances of the [Cape

Cod 5 accounts was] an intentional wrongful exercise of an act

of ownership, control or dominion over personal property to

which he has no right of possession." She asked the court to

find that the accounts were "established for mere convenience"

and that they are "part of the estate."

After trial, the judge concluded that the decedent

"intended for [Zantuhos] to have the Cape Cod 5 accounts when

she passed away." He found that the accounts were held jointly

with right of survivorship, and that Zantuhos "became the sole

owner of such accounts upon the death of [the decedent]." A

judgment subsequently entered dismissing Wright's complaint.

This appeal followed.

Discussion. 1. Ownership of the accounts. Wright

contends that the judge erred in finding that the accounts were 6

held jointly with right of survivorship, because, Wright claims,

the accounts were solely for the convenience of the decedent

and, as such, were part of the decedent's probate estate. We

are not persuaded. "Whether the joint accounts were properly

retained by [Zantuhos] as [his] property, or should have been

included in the estate is a 'pure question of fact' that turns

on the donor's intent." Gershaw v. Gershfield, 52 Mass. App.

Ct. 81, 93 (2001), quoting Desrosiers v. Germain, 12 Mass. App.

Ct. 852, 856 (1981). On review, "we accept the judge's findings

of fact unless they are clearly erroneous." U.S. Bank Nat'l

Ass'n v. Schumacher, 467 Mass. 421, 427 (2014). Notably, Wright

did not challenge any of the judge's findings of fact as clearly

erroneous.

Generally, "a change in the form of deposit to the joint

account of the former owner and another 'would operate as a

present and complete gift in joint ownership if . . . [the

decedent] clearly intended such a result.'" Miles v. Caples,

362 Mass. 107, 114 (1972), quoting Coolidge v. Brown, 286 Mass.

504, 507 (1934). However, if the joint account "was created

only as a matter of convenience," it does not establish the

requisite intent to make "a completed gift," and the contents of

the account remain in the decedent's estate. Miles, supra,

quoting Burns v. Paquin, 345 Mass. 329, 331 (1963). Moreover,

"as between the survivor and the representative of the estate of 7

the deceased, it is still open to the latter to show by

attendant facts and circumstances that the deceased did not

intend to make a present completed gift of a joint interest in

the account." Miles, supra, quoting Ball v. Forbes, 314 Mass.

200, 204 (1943).

Here, the burden was on Wright, and the judge found that

she "failed to prove that there was no intention to create a

gift" to Zantuhos. In addition to the findings about the

relationship between the decedent and Zantuhos addressed supra,

the documentary evidence also supported the judge's findings.

Each account agreement contained a box to check for ownership of

the account as "Joint with Survivorship (not as tenants in

common)." The decedent checked this box on each account

agreement. And because Wright was a joint owner of one of the

decedent's other accounts at a different bank, the judge found

that this was additional evidence that the decedent "understood

the legal effect of signing the Account Agreements."

And, it was unnecessary to add Zantuhos to the accounts for

convenience purposes because the decedent had appointed him as

her attorney-in-fact in 2010. As such, Zantuhos, as the judge

found, "already had the ability to write checks and or withdraw

funds from such accounts." See Valente v. TD Bank, N.A., 92

Mass. App. Ct. 141, 143 n.7 (2017) ("A durable power of attorney

can authorize an agent to make a wide range of decisions 8

affecting the principal's business, estate, finances, and legal

relationships"). There was no error.

2. Disposition of the accounts. Wright next argues that

the judge erred by failing to find that the will controls the

disposition of the accounts, because, Wright argues, if the

decedent intended for Zantuhos to receive them, the 2010 will

would have so stated. This argument finds no support in our

case law and is in fact contrary to the Massachusetts Uniform

Probate Code. See G. L. c. 190B, § 6-101 (a) ("A provision for

a nonprobate transfer on death in an . . . account, agreement,

. . . deposit agreement, . . . or any other written instrument

effective as a contract, gift, conveyance or trust, is

nontestamentary"). Although the 2010 will states that

"[c]ertificates of [d]eposit, money market accounts, retirement

benefits, and bank deposits" are included in the decedent's

assets, this does not mean that accounts held jointly with right

of survivorship are included in the probate estate. See Smith

v. Smith, 361 Mass. 733, 737 (1972) ("Property held either by

tenancy by the entirety or by joint tenancy passes to the

survivor by operation of law and does not constitute a part of

the decedent's estate").

Moreover, if property passes outside of probate, it need

not be included in the will for it to properly transfer upon

death. See Blanchette v. Blanchette, 362 Mass. 518, 524-525 9

(1972). That is precisely what happened here. "If an owner of

property can find a means of disposing of it inter vivos that

will render a will unnecessary for the accomplishment of [her]

practical purposes, [she] has a right to employ it." Id. at

524, quoting National Shawmut Bank of Boston v. Joy, 315 Mass.

457, 471 (1944). There was no error.

3. Burden of proof on the breach of fiduciary duty claim.4

Wright argues that the judge erred in not placing the burden of

proof on Zantuhos because "he acted in a fiduciary capacity

pursuant to the power of attorney," and therefore must prove

that adding his name to the joint accounts was "neither the

result of a violation of his obligations as a fiduciary nor the

result of undue influence." Generally, "[t]he burden of proof

is on the person seeking to show that the transaction is not to

be taken at face value." Blanchette, 362 Mass. at 524. The

burden shifts if the fiduciary "benefits in a transaction with

the person for whom he is a fiduciary." Cleary v. Cleary, 427

Mass. 286, 295 (1998). However, the burden does not shift where

"the fiduciary benefits from the principal's generosity without

4 In her verified complaint, Wright also alleged that Zantuhos violated his fiduciary duty owed to her in his capacity as the personal representative of the estate. The judge found against her on this claim. Wright has not briefed the issue, and it is therefore waived. See Mass. R. A. P. 16 (a) (9) (A), as appearing in 481 Mass. 1628 (2019). 10

any role in the decision." Rempelakis v. Russell, 65 Mass. App.

Ct. 557, 567 (2006).

Here, the judge found that Zantuhos "was not acting as [the

decedent]'s attorney-in-fact under her durable power of attorney

when she added him as joint owner of her Cape Cod 5 accounts."

Thus, the judge did not err in failing to shift the burden

because Zantuhos did not "actually transact[] with the principal

within the scope of the fiduciary relationship." Rempelakis, 65

Mass. App. Ct. at 566. Although Zantuhos was present when the

decedent added him to the accounts, there was no evidence that

he played any role in the decedent's decision-making. See id.

at 567 (presence at time of execution of documents was not

enough participation to shift burden).5

Judgment affirmed.

5 Wright's and Zantuhos's requests for attorney's fees and costs are denied.