In the Matter of the Estate of Galatis , 88 Mass. App. Ct. 273 ( 2015 )

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14-P-579 Appeals Court
IN THE MATTER OF THE ESTATE OF CHARLES P. GALATIS.
No. 14-P-579.
Middlesex. April 14, 2015. - September 9, 2015.
Present: Berry, Milkey, & Massing, JJ.
Will, Testamentary capacity.
Petition for probate of will filed in the Middlesex
Division of the Probate and Family Court Department on June 12,
2000.
The case was heard by Maureen H. Monks, J.
Dimitrios Ioannidis for town of Skiathos.
William M. Driscoll for Syriano Kyparissou Kontos & others.
MILKEY, J. On January 15, 2000, Charles P. Galatis, then
seventy-six years old, was admitted to Massachusetts General
Hospital (MGH). Once admitted, he was diagnosed with stage IV
lung cancer, and over the ensuing weeks he suffered a rapid
2
overall decline in his physical and mental condition. Galatis
remained hospitalized, 1 and he died on February 25, 2000.
On February 9, 2000, Galatis executed a document purporting
to be his will. The executor named in the will formally
presented it for probate, joined by the will's principal
beneficiary, the town of Skiathos, Greece. 2 Two of the
decedent's cousins contested the will. After a ten-day trial, a
Probate and Family Court judge declined to allow the will,
because she found that Galatis lacked testamentary capacity on
February 9. Because that finding is amply supported by record
evidence, we affirm.
Background. The judge made 559 factual findings that
totaled seventy-one pages. We summarize those findings, almost
all of which are unchallenged, and highlight the facts still in
dispute. See Rempelakis v. Russell, 65 Mass. App. Ct. 557, 559
(2006).
1
On February 2, 2000, Galatis was transferred from MGH to
Spaulding Rehabilitation Hospital (Spaulding). On February 6,
he was readmitted to MGH after developing renal failure and a
urinary tract infection.
2
The decedent was born in Skiathos in 1923. He was an only
child and had no children, and his wife of thirty-three years
died from lung cancer in 1995 or 1996. He was survived by his
cousins, George Kyparissos, Charalambos Kyparissos, and Athena
Perisiadou. During the pendency of the probate of Galatis's
estate, Charalambos Kyparissos died and his heirs-at-law were
substituted for him.
3
1. Galatis's background medical conditions. By the time
Galatis was admitted to MGH, he already suffered from a long
list of medical problems including diabetes, hyperkalemia
(excess potassium in the blood), and major depression. For such
problems, Galatis was taking twelve different prescribed
medications, including the antidepressant Elavil, and two
different narcotics for pain relief. The symptoms of anxiety
and depression worsened following his diagnosis with metastatic
lung cancer. He therefore was prescribed a second
antidepressant, and the dosages for both antidepressants
subsequently were increased. His painkillers also were
aggressively increased, and he was placed on a self-administered
morphine drip beginning on February 8.
2. The February 1 document. When he entered MGH, Galatis
apparently had no existing will. At some point during his
initial hospitalization, he asked a friend, Steven Damaskos, to
record his thoughts regarding the disposition of his property.
Damaskos wrote down individual names that Galatis provided to
him, followed by specific amounts of money they were to receive.
Damaskos then transcribed the information onto a will template
form he found through an Internet search, and Galatis signed the
resulting document on February 1, 2000. As discussed below,
although the February 1 document was admitted in evidence at the
4
trial on the February 9 will, it was not itself offered for
probate prior to the conclusion of that trial.
3. Differences between the February 1 document and the
February 9 will. An attorney brought in by Damaskos to prepare
a proper will for Galatis was given the February 1 document as a
starting point. The end product was the will executed by
Galatis on February 9, 2000. The estate plan delineated in that
will is similar in most material respects to that contained in
the earlier document. Both documents provided for the creation
of a charitable trust administered by a foundation in Skiathos,
the corpus of which would consist of Galatis's real estate
assets in Greece. Unsurprisingly, the later document drafted by
the attorney generally is a more developed product than the
earlier one produced by Damaskos, and many of the differences
could best be described as refinements or minor modifications to
the earlier plan. For example, the February 9 will provided for
the disposition of certain personal property not enumerated in
the February 1 document. However, the February 9 will also
included some curious additions and omissions. The will
included one beneficiary who -- according to uncontradicted
testimony -- apparently does not exist, and the residuary clause
included in the February 1 document was omitted (even though --
5
again, according to uncontradicted testimony -- the will did not
otherwise dispose of all of Galatis's estate). 3
4. The events of February 8, 2000. Sometime in the late
afternoon of February 8, 2000 (the day before the will signing),
Galatis was administered a dose of Ativan for his anxiety
symptoms. Apparently as a result of an adverse reaction to the
Ativan, Galatis became somnolent and developed a facial droop.
He exhibited slurred speech, drowsiness, and inability to pay
attention, and he required constant stimulation to generate
answers to questions. After it was observed that his arms were
flopping, he was diagnosed with asterixis, which is indicative
of central nervous system impairment. These symptoms also led
to Galatis being diagnosed with the underlying brain condition
encephalopathy.
5. The extent of Galatis's temporary recovery. On the
evening of February 8, Galatis was given a drug to try to
reverse the effects of the Ativan. Both sides agree that the
administration of this drug (the antidote) had some beneficial
effects. They differ sharply, however, on the import of the
3
Additionally, although both documents provided that
Skiathos would be the beneficiary of a trust funded by Galatis's
real estate holdings there, the February 9 will added that his
home in Skiathos be converted into a museum and never be sold.
At the same time, the February 9 will -- unlike the February 1
document -- would grant the executor a power of sale of real
property, thus obviating the need for him or her to seek court
approval before selling the Skiathos house. See Samra v. Yuan,
40 Mass. App. Ct. 934, 935-936 (1996).
6
Ativan episode with regard to Galatis's mental state when he
signed the will the following day. The will proponents sought
to portray the administration of the antidote as allowing
Galatis to make a dramatic recovery through which he regained
sufficient capacity to execute the will. The will contestants
asserted that while the reaction to the Ativan may have
exacerbated Galatis's mental condition on February 8, he by that
time was already suffering from encephalopathy, which was
impairing his cognitive and motor functions.
6. The will contestant witnesses. The will contestants
supported their case with expert opinion testimony from Dr. Marc
Whaley, a forensic psychiatrist. Dr. Whaley testified from his
review of the medical records that Galatis had exhibited
symptoms of encephalopathy (albeit less severe) in the days
prior to the Ativan reaction. 4 He also opined that even though
Galatis may have shown some improvement through the
administration of the antidote, the underlying encephalopathy
would not have abated. According to him, a person with
encephalopathy suffers from a loss of ability to communicate,
remain oriented, think logically, solve problems, and remember
information.
4
Dr. Whaley testified that the encephalopathy was likely
caused by a combination of factors, including the effect of the
interactions of the numerous drugs he was taking and electrolyte
imbalance from his infection, as well as multiple derangement
due to renal failure.
7
The will contestants also called Dr. John Stoeckle, the
attending physician who directed Galatis's care at MGH. Dr.
Stoeckle was particularly well-suited to offer an opinion
regarding Galatis's mental capacity because he had served as
Galatis's primary care physician for the last fifteen years of
his life. In addition, Dr. Stoeckle had examined Galatis
throughout his hospitalization, including multiple times each
day on February 6 through 10. Consistent with the testimony of
Dr. Whaley, Dr. Stoeckle opined that Galatis suffered from
encephalopathy and that as of February 9, this condition
impaired his ability to think clearly, orient himself, speak and
communicate, think logically, solve problems, and remember
information.
7. The contemporaneous hospital records. The hospital
records from February 9 (the day Galatis signed the will)
provided some fodder for each side. A nurse's progress note
from 6:00 A.M. on February 9 indicates that Galatis had suffered
from the effects of Ativan throughout the night and continued to
be "weak" and "confused [as] to place." One of the treating
physicians stated in a note from the early afternoon that
Galatis had "recovered from last night's events" and "seem[ed]
back to baseline." However, a nurse's note indicated that as of
1:00 P.M., although Galatis was oriented to himself, his
whereabouts, and the time, he complained of "general confusion."
8
In addition, a social worker who met with Galatis at 2:00 P.M.
on February 9 noted that he was "[d]ifficult to interview
because of mental status changes," and a nursing note at 7:00
P.M. stated that, although Galatis's condition had improved from
the previous day, he continued to be "sleepy" and "confused" at
times. Assessing Galatis's mental state when the will was
signed on February 9 against the backdrop of the medical records
was made particularly challenging by the fact that no testimony
or other evidence established at what time that day the signing
actually took place. 5
8. The will proponents' witnesses. The will proponents
offered the testimony of the attorney who drafted the February 9
will. Although she attended the will signing, she had no
personal recollection of when it was signed, nor could she
produce any contemporaneous notes of the event. She did testify
that, in her opinion, Galatis was of "sound mind" at the time he
signed the will, but the judge discounted such testimony due to
the fact that she lacked any records of ever meeting with
Galatis alone at any point prior to the will execution, her
"defensive demeanor" while testifying, and the fact that her
5
On appeal, the will proponents argue that it can be
inferred that the will was likely signed sometime between 2:30
P.M. and 7:00 P.M. A note recorded by Dr. Stoeckle indicates
that Galatis was to receive radiation therapy at 2:30 P.M., and
a nurse's note from 7:00 P.M. says, "Friends here all day.
[Galatis] [d]oes not want to be left alone. Family members
going over [patient's] legal paper [and] will today."
9
claim to have met alone with Galatis was contradicted by that of
Damaskos (Galatis's friend and the author of the February 1
document). In fact, the judge sharply criticized the lawyer for
failing to inquire at all, at any point prior to the will
execution, as to Galatis's mental status or medical diagnosis.
The will proponents also presented the testimony of the two
nurses who attested to the will signing. One had no personal
recollection of the will signing whatsoever, and she testified
only that her general practice was not to witness a will unless
the testator was of sound mind. The other attesting nurse
recalled that Galatis seemed "alert" at the time of the will
signing. 6 In addition, the proponents presented the testimony of
Dr. Ernie Paul Barrette, a physician who treated Galatis at MGH.
Although Dr. Barrette expressed his opinion that Galatis had
testamentary capacity on February 9, such testimony was undercut
by several factors: even though Dr. Barrette was testifying
only as a treating physician, not as an expert on testamentary
capacity, he had no personal recollection of treating Galatis,
and in any event he stopped treating Galatis on February 2. 7
6
Dr. Whaley and Dr. Stoeckle both explained in their
testimony that the term "alert" is a medical term of art meaning
only that a patient is conscious and aware of his surroundings,
and that the term does not refer to a patient's mental capacity.
7
The judge did not abuse her discretion in ruling that Dr.
Barrette did not qualify as an expert on testamentary capacity.
Nor did the judge abuse her discretion in precluding the will
10
There was also testimony from several friends and family
members, many of whom visited Galatis while he was hospitalized.
Of the individuals who came to the hospital, only two were
present at some point on the day of the will signing, Damaskos
and Demetrios Skopas. Damaskos, although not a blood relative
of Galatis, considered him to be like an uncle. Damaskos
visited Galatis at the hospital three or four times a week, and
testified in general terms that he found Galatis to be "clear
minded" and "able to communicate." Damaskos was not present at
the will signing itself. Skopas, ninety-one years of age at the
time of trial, was a fixture at Galatis's bedside, spending
every evening at the hospital and staying overnight
approximately fifteen times. He testified that "he had no
difficulty communicating with" Galatis until the day of his
death. However, Skopas also testified that he remained in
Galatis's hospital room during the will signing, and this
proponents from calling a different witness as an expert based
on discovery violations. As the will proponents accurately
point out, even though Dr. Barrette was never qualified as an
expert on this, he did -- in response to a question asked on
cross-examination -- state his opinion on Galatis's mental
capacity on February 9 based on his review of the medical
records. However, the admission of such opinion evidence of
course does not mean that the judge was required to credit it.
11
testimony revealed that he may have had some concern about
Galatis's physical and mental condition. 8
Discussion. 1. Galatis's testamentary capacity on
February 9, 2000. As noted, the will proponents formally
presented the February 9 will for probate, and thus the trial
focused on whether Galatis had testamentary capacity on the date
that will was executed. 9 Whether a testator had testamentary
capacity is a question of fact. Duchesneau v. Jaskoviak, 360
Mass. 730, 733 (1972). On appeal, "[i]t is our obligation to
review the evidence and reach a decision in accordance with our
own reasoning and understanding, giving due weight to the
findings of the trial judge, which we will not reverse unless
they are plainly wrong." Paine v. Sullivan, 79 Mass. App. Ct.
811, 811-812 (2011), quoting from Palmer v. Palmer, 23 Mass.
App. Ct. 245, 249-250 (1986). Although there is a presumption
that the testator had testamentary capacity, once the
contestants produce "some evidence of lack of testamentary
capacity, the presumption of [capacity] loses effect" and the
8
During the signing, Skopas asked Galatis to write his
signature more clearly, to which Galatis responded, "Leave me
alone." After the signing, according to Skopas, Galatis asked
him, "I did everything right, right?" Skopas also testified
that Galatis seemed "upset" and that "his hand was shaking."
9
The will contestants also alleged undue influence. The
judge rejected that claim and the correctness of her findings
and rulings on that point are not before us.
12
burden shifts to the proponents to prove by a preponderance of
the evidence that the testator was able
"to understand and carry in mind, in a general way, the
nature and situation of his property and his relations to
those persons who would naturally have some claim to his
remembrance[,] . . . freedom from delusion which is the
effect of disease or weakness and which might influence the
disposition of his property[,] [a]nd . . . ability at the
time of execution . . . to comprehend the nature of the act
of making a will."
Palmer v. Palmer, 23 Mass. App. Ct. at 250, quoting from Goddard
v. Dupree, 322 Mass. 247, 250 (1948).
We agree with the trial judge that the evidence of
incapacity summarized above was sufficient to shift the burden
of proof to the will proponents, and we discern no clear error
in the judge's finding that they failed to carry that burden.
There is no merit to the proponents' contention that the trial
judge's finding of incapacity was based on evidence of only
"general illness and depression." To the contrary, both Dr.
Stoeckle (Galatis's long-term physician) and Dr. Whaley
specifically testified that Galatis's diagnosed encephalopathy
and myriad medications prevented him from being able to read or
understand the provisions of a will on February 9, 2000. That
view also found support in other evidence, such as the
contemporaneous hospital records and the marked deterioration in
the legibility of Galatis's signature on the will (indicative of
significantly impaired motor function associated with
13
encephalopathy). To be sure, there was some evidence to support
the will proponents' position that Galatis had regained
testamentary capacity on February 9 (at whatever time that day
he executed the will), but it was the judge's role as fact
finder to assess all the evidence and to resolve any conflicts. 10
The record reveals that she carried out her fact-finding duties
with uncommon care and comprehensiveness. In sum, the judge's
finding that Galatis lacked testamentary capacity to execute the
February 9 will enjoys ample support in the trial evidence.
2. Status of the February 1 document. Finally, we are
called upon to address a procedural loose end regarding the
10
The proponents suggest that the judge was required to
reject Dr. Stoekle's testimony regarding his patient's mental
capacity because, in response to a question on cross-examination
about whether he understood the term "testamentary capacity,"
Dr. Stoeckle said, "I think I do not because I don't think I've
ever had anyone ask me to do it and I don't remember discussing
it with any colleague or lawyer or anybody." The force of this
admission, however, is greatly diminished when it is viewed in
the context of the rest of Dr. Stoeckle's testimony.
Immediately after acknowledging his lack of familiarity with the
legal term "testamentary capacity," Dr. Stoeckle clarified that
he understood the concept "in a conceptual way, but not in a[n]
operational way." On redirect, Dr. Stoeckle again clarified
that, irrespective of the legal terminology, it was his view
that Galatis suffered from "mental impairment and incapacity in
comprehending, appreciating, understanding the nature,
significance and consequences of the contents and execution of a
will . . . ." In any event, the judge specifically limited Dr.
Stoeckle's testimony to his opinion as Galatis's treating
physician. Accordingly, in her findings of fact, the trial
judge only considered Dr. Stoeckle's opinion with respect to the
degree of Galatis's mental and cognitive impairment; she relied
on the testimony of Dr. Whaley as to whether or not Galatis met
"the necessary criteria for possessing testamentary capacity."
14
February 1, 2000, document. Neither will proponent petitioned
to have that document probated as Galatis's will in the event
the February 9 will were disallowed. Hence the trial judge
ruled that whether the February 1 document could be considered a
valid will was not before her. 11 Nevertheless, she specifically
found that the contestants to the February 9 will did not submit
sufficient evidence to overcome the presumption that Galatis had
capacity on February 1, 2000, thus raising the possibility that
the document that he signed that day could qualify as his will.
The will proponents argue that the judge erred in not ruling
whether the February 1 document constituted a valid will. Their
argument rests on the premise that a particular procedural step
that one of them took sufficed to present the February 1
document for probate. Assessing the validity of that premise
requires additional background detail.
The record shows that, early in the litigation, the
proponents of the February 9 will had some confusion about what
11
The governing statute was repealed and replaced during
the pendency of these proceedings (something that neither side
addresses). However, both statutes require the proponent of a
will to file a petition for probate. See G. L. c. 192, § 1, as
in effect prior to St. 2008, c. 521, § 12 (requirements for
filing of petition for probate); Marco v. Green, 415 Mass. 732,
738 (1993) (interpreting G. L. c. 192, § 1, as "requiring" the
filing of a petition); G. L. c. 190B, § 3-402(a)(1), inserted by
St. 2008, c. 521, § 9 (Massachusetts Uniform Probate Code)
(requiring that petition for formal probate of will be filed
requesting order "in relation to a particular instrument"
[emphasis added]).
15
they should do with the February 1 document. On May 21, 2007,
Skiathos filed a "Motion for Instructions" concerning that
issue. In its motion, Skiathos expressed its lack of clarity as
follows:
"It is unclear to the parties whether the Court would like
a copy of the February 1, 2000 Will filed with this matter,
if the Court would like a petition filed for the February
1, 2000 Will or whether the Court would want a Motion to
Allow this Will in the Alternative filed in this matter."
A close reading of this awkwardly phrased sentence reveals that
Skiathos was seeking guidance on two distinct issues: first,
whether it should file a formal petition to have the February 1
document presented for probate, and second, whether it could
file a copy of that document in lieu of the original because the
original could not be located. A judge different from the trial
judge endorsed the motion as "allowed," together with a notation
that read, "[A]s no original exists, filing will not be
required." In other words, the judge expressly addressed only
the issue regarding the missing original, not what procedure
Skiathos should use if it wanted to present the February 1
document for probate.
We acknowledge that the motion judge's response to the
motion for instructions may not have alleviated Skiathos's
confusion about what procedure it should have followed if it had
wanted to present the February 1 document for probate. However,
precisely because of that remaining uncertainty, it was
16
incumbent on the proponents to seek further clarification from
the court. See Coyne Industrial Laundry of Schenectady, Inc.
v. Gould, 359 Mass. 269, 275-276 (1971). Neither the will
proponents nor the executor did so. In any event, the judge's
incomplete response to the awkwardly phrased motion did not
relieve the will proponents of their obligation to follow proper
procedures. See Ferriter v. Borthwick, 346 Mass. 391, 393
(1963) ("In situations where there is more than one will it is
within the power of the judge to require petitions to be filed
to probate each will and to hear them together"). Because the
February 1 document was not presented for probate, 12 the trial
judge correctly concluded that whether it should have been
allowed as Galatis's will was not properly before her. 13
Judgment affirmed.
12
Our review of the Probate and Family Court docket reveals
that on November 15, 2013, after judgment entered disallowing
the February 9 will, a petition was filed to probate the
February 1 document. The fate of that petition, which
apparently was filed by Damaskos, is not before us.
13
We deny the contestants' request for double costs,
damages, and interest pursuant to Mass.R.A.P. 25, as appearing
in 376 Mass. 949 (1979).
BERRY, J. (dissenting). I dissent because I do not think
that the trial evidence was sufficient to prove that Charles P.
Galatis lacked the requisite testamentary capacity at the time
he executed his will on February 9, 2000. Contrary to the
majority, I look to material evidentiary points at trial, which
I think establish testamentary capacity.
The first trial evidentiary point of reference to which I
look as proof of testimony capacity: during the afternoon of
February 9, 2000, the day that Galatis signed the will, he
manifested measurable periods of stability, lucidity, and
awareness reflecting testamentary capacity to execute the will.
Specifically, during the afternoon of February 9, the trial
evidence -- including contemporaneous medical records --
demonstrated that Galatis was lucid and aware of his
surroundings. This lucidity is clear evidence (especially when
coupled with the testimony of the witnesses to the will, see
discussion, infra), that Galatis knew what he was doing in
bequesting his estate. He knew the objects of his bounty,
primarily a Greek educational charitable trust on the island of
Skiathos (which would be the main beneficiary of his real estate
in Greece), but also eleven other individual beneficiaries who
received monetary bequests. Specifically, as more fully
detailed in part 1, infra, according to the medical records, by
1 P.M. and 2 P.M. on February 9, Galatis had recovered from an
2
adverse reaction to a drug (Ativan) which had been given to him
the day before. In his recovery from the adverse drug reaction,
by February 9 in the afternoon and into early evening, Galatis
was back at "baseline" and had regained lucidity. For example
on February 9, at 1:00 P.M., Galatis is described in the medical
records as "A+O x 3" -- i.e., oriented to person, place, and
time. Similarly, at 2:00 P.M. the medical records describe
Galatis as "recovered from last night's events" and "back to
baseline." At 7:00 P.M. Galatis is described as "clearly better
than yesterday," when the Ativan was administered. These
measurable periods of clarity during the afternoon of February
9, when added to the testimony of the witnesses to the will,
reflect a sufficient intervening period of testamentary
capacity. "Acting during a lucid interval can be a basis for
executing a will." Farnum v. Silvano, 27 Mass. App. Ct. 536,
538 (1989). See O'Rourke v. Hunter, 446 Mass. 814, 827 (2006)
("[T]he contestants offer no evidence that she lacked
testamentary capacity during the . . . discussions with her
attorney or . . . when she executed her will").
The second trial evidentiary point of reference to which I
look as proof of testamentary capacity: the testimony of the
witnesses to the will, including the attorney who drafted the
will and two nurses who served as attesting witnesses, all
confirmed that Galatis was alert, responsive, of sound mind, and
3
knew he was executing a will. In addition, other friends
visiting Galatis on February 9 testified that Galatis was alert
and aware when they saw him.
The third trial evidentiary point of reference to which I
look as proof of testamentary capacity: there is an almost
complete congruence between the contested February 9 will and a
first will signed by Galatis on February 1. That February 1
will was drafted by a nonlawyer friend at Galatis's request, and
it is undisputed that Galatis was of sound mind with
testamentary capacity on February 1. It was Galatis who
requested that an attorney draft the February 9 will to replace
the nonlawyer's draft. As noted, the February 9 will is wholly
consistent with Galatis's prior February 1 will bequests,
including the creation of the Greek educational charitable
trust, and is consistent dollar by dollar in the eleven other
individual bequests totaling approximately $90,000.
Given the foregoing, I am not persuaded the contestants met
the burden of proving that Galatis lacked testimony capacity.
To the contrary, I read the trial evidence as supporting, by a
preponderance of the evidence, that Galatis had the requisite
testamentary capacity to execute his will on February 9. "It is
well established that to determine testamentary capacity, [t]he
critical question is whether the testator was of sound mind at
the time the will was executed." Estate of Rosen, 86 Mass. App.
4
Ct. 793, 798 (2014), quoting from O'Rourke v. Hunter, supra.
"At the time of executing a will, the testat[or] must be free
from delusion and understand the purpose of the will, the nature
of [his] property, and the persons who could claim
it." O'Rourke v. Hunter, supra at 826-827. Cf. Daly v. Hussey,
275 Mass. 28, 29 (1931).
There is no dispute that the will was signed during the day
on February 9 and, as referenced above, that Galatis was of
sound mind, alert, and responsive during a major afternoon
segment on that day. Indeed, the majority acknowledges that
"[a]ssessing Galatis's mental state when the will was signed on
February 9 against the backdrop of the medical records was made
particularly challenging by the fact that no testimony or other
evidence established at what time that day the signing actually
took place." Ante at . But even though the precise time of
signature is not provable, to accept the majority's position
would be to accept the proposition that Galatis was not of sound
mind to execute his will at any time on February 9. That is not
so.
I turn to more details concerning the three points of the
trial evidence which, I believe, show testamentary capacity.
1. The medical evidence. I begin with the contemporaneous
medical records. At approximately 4:30 P.M. on February 8,
2000, the day before the will was signed, Galatis was given the
5
drug Ativan. He had adverse reactions including a facial droop,
confusion, drowsiness, asterixis, and a temporary diagnosis of
encephalopathy. But quickly after the adverse reaction, Galatis
was given flumazenil, an antidote to Ativan. Dr. Barrette
testified that "Mr. Galatis received his first dose of
Flumazenil at 6:00 P.M., 90 minutes after the Ativan was given,
and a second dose one hour later at 7:00 P.M." Another
physician, Dr. Whaley, confirmed that "because Flumazenil is an
antidote . . . it can reverse the effects of Ativan." A third
physician, Dr. Stoeckle, corroborated that flumazenil is an
antidote to Ativan.
Medical notes reveal that during the early hours of the
next morning on February 9, Galatis was still not at baseline.
At approximately 6:00 A.M., a nurse's note states that Galatis
was "lethargic most of the night . . . Ativan reaction.
Arousable to voice. . . . [s]till weak but more responsive to
pain. Alert but confused to place." At 11:00 A.M. Galatis
still had lingering effects from the Ativan as "[h]is mental
status is not [at] baseline."
According to the medical records, however, as time passed
to the afternoon, there was a significant turning point in
Galatis's condition as he recovered from the adverse effects of
Ativan, the antidote flumazenil took effect, and Galatis
returned to "baseline." This is important, because from all
6
that appears, including the testimony by the attorney and the
nurses who witnessed the will, there was stabilization noted at
1:00 P.M. and continuing throughout the afternoon of February 9,
all of which supports testamentary capacity.
The stabilization is noted in a 1:00 P.M., nurse's note
stating that "pt stated he 'felt better.' Pt. A+O x 3 [a term
meaning a patient who is oriented to person, place and time],
but stated he had 'general confusion.'" This note is
corroborated by Dr. Stoeckle's note of 1:30 P.M. that Galatis
was "[a]lert at moment. To radiation Rx at 2:30. Again
reiterated goals with patient. Ready for transfer AM."
At about 2:00 P.M. on February 9, the medical records
describe further stabilization and recovery: "pain services
helped pt learn to use PCA. Pt recovered from last night's
events . . . . Pt seems back to baseline." Dr. Stoeckle's notes
from the same time period describe Galatis as "quite alert," and
"mood up, without complaint of pain!" Lastly, as night
approached, at 7:00 P.M., a nurse's note states that Galatis was
"clearly better than yesterday." He "continues to be sleepy and
at times confused and he is aware of confusion." The note also
describes that "[f]amily members going over pt legal paper and
will today." 1
1
Given the totality of the trial evidence that Galatis was
lucid and alert at the time of the will signing, including
7
The majority (as did the trial judge) relies heavily on the
expert testimony of Dr. Whaley. However, Dr. Whaley was not a
treating physician but rather a psychiatrist who never examined,
treated, or even met Galatis. See Union Trust Co. of
Springfield v. Kittredge, 298 Mass. 515, 516 (1937) (opinions of
psychiatrists that decedent was of unsound mind were
insufficient to raise issue of capacity in light of detailed
evidence from "physician and nurses who actually treated and
cared for the decedent"); Nichols v. Sullivan, 340 Mass. 783,
783-784 (1959) ("The expected testimony of psychiatrists who had
not seen the decedent . . . was of substantially less weight
than [the proponents' evidence] which would support a finding of
testamentary capacity"). The majority also cites to Dr.
Stoeckle's trial testimony that Galatis was mentally impaired
throughout February 9 and could not understand the nature and
significance of executing a will. See ante at . But Dr.
Stoeckle's trial testimony directly conflicts with his
contemporaneous 1:30 P.M. medical record entry of Galatis's
recovery on February 9 in which Dr. Stoeckle wrote that Galatis
especially the medical records, it is inferentially reasonable
to conclude that the will was likely signed in the afternoon.
This inferential timeline is supported by post 2:00 P.M. medical
record entries as well as the nurse's note at 7:00 P.M. about
legal papers and a will signing. The proponents of the will
also submit there was an afternoon will signing.
8
was "quite alert," and "mood up, without complaint of pain!" 2
Further, Dr. Stoeckle conceded on cross-examination that he did
not know what it meant to have, or not have, testamentary
capacity. And, I note there was a hotly contested trial debate
whether Dr. Stoeckle's affidavit, which was prepared in
connection with the will contest and which includes a negative
opinion about testamentary capacity, had been drafted by the
trial attorney for the contestants notwithstanding the
conflicting entry by Dr. Stoeckle in the contemporaneous
February 9 medical records.
2. Witnesses to the will and other witnesses. In addition
to the medical records which reflect Galatis's lucidity and
ability to execute a will knowing the Greek charity and other
beneficiaries, the trial evidence included the eyewitness
testimony of three attesting witnesses to Galatis's will
signing. The drafting attorney and the two nurses who witnessed
the execution of the will on February 9 all testified that
Galatis was alert, responsive, and of sound mind. Specifically,
Attorney O'Neil testified that in her opinion, Galatis
understood the contents of the will at the time it was executed
2
The majority's reliance on the handwriting in Galatis's
signature on the February 9 will, as compared to his signature
on earlier medical consent forms and the February 1, 2000, will,
is tenuous. Our case law makes clear that a testator's
signature to a will need not be in any particular form. See
Chase v. Kittredge, 11 Allen 49, 53 (1865).
9
and that Galatis also understood the nature of his bounty, was
of sound mind at the time he executed his February 9 will, and
had testamentary capacity. Nurse Maryann Benoit observed
Galatis to be alert, of sound mind, and seeming to understand
the act of making a will. Benoit testified that, based on her
observations, Galatis was aware that he was signing a will, that
he knew that he was signing a will, that he was aware of who was
around him when the will was signed, and that he "was alert and
knew what he was doing." Nurse Jennifer Mathisen testified that
while she did not have a personal recollection of the will
signing ceremony, she would not have attested to the signing of
the will if Galatis were not competent to sign. See Farrell
v. McDonnell, 81 Mass. App. Ct. 725, 727-731 (2012).
The testimony of the attorney and the witnesses to the will
as to Galatis's lucidity was corroborated by the testimony of
Galatis's friends, Steven Damaskos and Demetrios Skopas.
Damaskos testified that "he found Mr. Galatis to be clear minded
and able to communicate during his visits at the hospital," and
Skopas testified that he had no difficulty communicating with
Galatis until the day of his death and that when Galatis
executed the February 9 will "[h]e had a clear mind."
3. The will consistency. I also consider as support for
Galatis's testamentary capacity that the will signed February 9,
which was prepared by an attorney, was a virtual dispositional
10
match to the first will signed February 1, which was prepared by
a nonattorney and signed by Galatis eight days before, when it
is undisputed that Galatis was of sound mind with testimony
capacity.
Specifically, the February 9 will is materially consistent
with the principal dispositional wishes of the first February 1,
2000, will, including the creation and formation of the Greek
educational charitable trust which was Galatis's principal
bounty. Both the February 9 will and the February 1 will
contain consistent provisions providing for Galatis's current
tenants in one of his real estate holdings in Greece to remain
there rent free for as long as they lived. Additionally, both
the February 9 will and the February 1 will are consistent in
appointing Skopas the executor. Finally, both wills name
Eugenia Bodenlos, a friend of Galatis's, as the contingent
executor. The February 9 will only differs in a minor change in
the makeup of the administrative committee which was to oversee
the assets of the Greek charitable trust. There were other
important points of similarity apart from the educational
foundation. For example, the February 9 will and the February 1
will both provide for eleven individual monetary bequests,
naming the exact same eleven beneficiaries.
"Testamentary capacity requires ability on the part of the
testator to understand and carry in mind, in a general way, the
11
nature and situation of his property and his relations to those
persons who would naturally have some claim to his
remembrance." Goddard v. Dupree, 322 Mass. 247, 250 (1948).
These beneficiary and dispositional similarities are remarkably
consistent and reflect that Galatis was able to fully understand
the provisions of a will on February 9. The will consistencies
are further evidence that Galatis had the ability to understand
and appreciate the nature of his property and to execute a will
knowing the objects of his bounty on February 9.
For all of these reasons I dissent. The trial record I
conclude by a preponderance of the evidence proves that Galatis
had testamentary capacity.