In the Matter of the Estate of Urban ( 2023 )

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22-P-21 Appeals Court
IN THE MATTER OF THE ESTATE OF JOHN P. URBAN.
No. 22-P-21.
Plymouth. November 1, 2022. – February 13, 2023.
Present: Wolohojian, Ditkoff, & Walsh, JJ.
Probate Court, Appeal. Practice, Civil, Summary judgment,
Presumptions and burden of proof, Deposition. Undue
Influence. Will, Undue influence, Testamentary capacity,
Validity.
Petitions for probate of a will filed in the Plymouth
County Division of the Probate and Family Court Department on
April 1 and July 29, 2019.
The cases were heard by Edward F. Donnelly, Jr., J., on
motions for summary judgment.
William F. Spallina for Michelle Finnegan.
Robert F. Callahan, Jr., for The John P. Urban Scholarship
Fund.
DITKOFF, J. Michelle Finnegan appeals from decrees
allowing the petition of the attorney for the decedent, John P.
Urban, to probate Urban's May 3, 2016, will (2016 will), and
dismissing Finnegan's competing petition to probate as a will an
2
agreement for payment of services dated September 24, 2016. We
conclude that the burden of showing undue influence remains with
the objector where, as here, a fiduciary holding a power of
attorney does not intrude on the attorney-client relationship
with an estate attorney that yields the will. With that
understanding, we conclude that there is no genuine issue of
material fact concerning whether the 2016 will, which was
produced by independent legal counsel, was the result of undue
influence. We further conclude that there is no genuine issue
of material fact whether Urban possessed testamentary capacity
when he signed the 2016 will.
Turning to the other issues, we conclude that the judge
correctly determined that the summary judgment record showed, as
a matter of law, that Finnegan's agreement for payment of
services (2016 agreement) (even if it constituted a will) was
the product of undue influence. Finally, concluding that the
judge acted within his discretion in striking a transcript of
answers by a witness that was obtained outside a deposition with
notice to the other parties, we affirm.
1. Background. a. Urban's relationship with Finnegan.
"We recite the material facts in the light most favorable to the
nonmoving party." Docos v. John Moriarty & Assocs., 78 Mass.
App. Ct. 638, 639 (2011). In the 1990s, Finnegan moved to
Naples, Florida with her parents. Shortly thereafter, she was
3
introduced to Urban, at the time in his mid-seventies. For
nearly twenty years, Urban lived in a guest house behind
Finnegan's parents' home during the winter months and spent the
rest of the year in Massachusetts.
For many years, Finnegan maintained a close relationship
with Urban, who would die without a surviving spouse,
descendants, siblings, or siblings' descendants. Urban
frequently ate meals with the Finnegans and went to classical
music concerts with Finnegan's parents. Urban regularly went to
church with the Finnegans and joined Finnegan's uncle for
Christmas dinner.
b. The wills. Prior to the execution of the 2016 will,
Urban signed three similar wills. Their manner of drafting and
execution is important to understanding the issues here.
Urban, his close friend, Dr. Geoff Emerson,1 and Attorney
Daniel Singleton were all members of the Cohasset Golf Club. In
2012, while Dr. Emerson was present, Urban expressed to Attorney
Singleton that he "needed to make a will." Attorney Singleton
made an appointment to meet with Urban.
1 Although Attorney Singleton and Dr. Emerson were
acquaintances, Attorney Singleton and his wife "never socialized
with Dr. and Mrs. Emerson." Attorney Singleton did not perform
any legal work for the Emersons until after Urban died.
4
At some point in 2012 or 2013, Dr. Emerson drove Urban to
Attorney Singleton's office, but Attorney Singleton and Urban
met alone, whereupon Urban "went through a whole list of people
who . . . he wanted to leave money to." On June 19, 2013,2
Dr. Emerson drove Urban to Attorney Singleton's office, and then
Urban met privately with Attorney Singleton to review the will.
Urban executed the will; two people who worked in Attorney
Singleton's office building served as disinterested witnesses.
The will provided for sixteen beneficiaries, including Finnegan
and her parents and sister, Dr. Emerson and his wife, Middlebury
College, and the John P. Urban Scholarship Fund (scholarship
fund), to be created upon Urban's death for the purpose of
providing scholarships to local high school students for college
expenses.
In 2014, Urban was diagnosed with dementia. That same
year, Dr. Emerson called Attorney Singleton and indicated that
Urban wished to change his will. Attorney Singleton called
Urban to discuss revisions and then drafted a new will. The
2014 will was substantially similar to the 2013 will with the
following key changes: Urban reduced Finnegan's bequest from
$375,000 to $225,000 while increasing the bequest to each of
Finnegan's parents from $180,000 to $325,000, increased
2 By this point, Urban had appointed Dr. Emerson to serve as
his health care proxy.
5
Dr. Emerson's bequest from $375,000 to $800,000, increased
Mrs. Emerson's bequest from $225,000 to $400,000, and added a
bequest to the Cohasset Golf Club. On June 6, 2014, Dr. Emerson
drove Urban to Attorney Singleton's office. Attorney Singleton
and Urban met privately to review the will. Dr. Emerson was not
present when Urban signed the will. Two disinterested persons
who worked in Attorney Singleton's office building witnessed
Urban execute his will. Two months later, in August 2014, Urban
executed a durable power of attorney and appointed Dr. Emerson
to that role.
In the spring of 2015, Attorney Singleton drafted a third
will in response to Urban's request to revise his will. Given
that the scholarship fund had now been formed and Dr. Emerson
was a trustee, Urban removed Dr. Emerson as his personal
representative and appointed Attorney Singleton instead.
Finnegan's bequest was unchanged, her parents' bequests were
each reduced from $325,000 to $300,000, Dr. Emerson's bequest
was increased from $800,000 to $900,000, and Mrs. Emerson's
bequest was increased from $400,000 to $450,000. On May 5,
2015, Dr. Emerson drove Urban to Attorney Singleton's office.
Urban met with Attorney Singleton privately in his office to
6
review the will. In the presence of two disinterested
witnesses,3 Urban executed this will.
In the spring of 2016, Dr. Emerson called Attorney
Singleton and indicated that Urban wanted to double the bequest
to Middlebury College from $150,000 to $300,000.4 Based on this
information, but without first speaking with Urban, Attorney
Singleton drafted a new will for Urban. On May 3, 2016, Urban's
caregiver drove Urban from the nursing home where he was living
at the time to Attorney Singleton's office. Urban's caregiver
reported that "[a]ll morning long, and throughout the time [she]
was with him that day, Mr. Urban was clear headed and focused."
Because of Urban's limited mobility, Urban and Attorney
Singleton met privately in the parking lot behind Attorney
Singleton's office to discuss the revised will. Attorney
Singleton observed that "Urban immediately recognized [him]."
In speaking with Urban, Attorney Singleton noticed that Urban
was "alert and focused." Attorney Singleton discussed the
increased bequest to Middlebury College and Urban approved that
revision. When Urban executed the 2016 will, Attorney Singleton
3 One was Attorney Singleton's wife; the other worked in
Attorney Singleton's office building.
4 Middlebury College attested that it "was not aware of the
$300,000 bequest that Mr. Urban made to Middlebury in the Will
until after Mr. Urban's death, when Middlebury received notice
that the Will had been offered for probate."
7
"assessed Mr. Urban's testamentary capacity and concluded that
that Mr. Urban had testamentary capacity. . . . Mr. Urban knew
what he owned, knew who the natural objects of his bounty were
and knew that he was making his will." Two disinterested
individuals who worked in Attorney Singleton's office building
witnessed Urban execute his will. Both witnesses signed an
"Affidavit to Due Execution of Will" attesting, among other
things, that Urban was "of sound mind and under no constraint or
undue influence." Finnegan was not present when Urban executed
his 2016 will and had not seen him in over a year.
c. The 2016 agreement. In April 2014, Finnegan contacted
her attorney to complain about Urban's friends, to express
concerns about "being taken advantage of," and to ask for advice
on "legally how to protect [her]self." In response, her
attorney offered to "draft[] a legal document that allows
[Finnegan] to make decisions on [Urban's] behalf and also be
'reimbursed' for [her] time and care."
In September 2016, Finnegan traveled from Florida to
Massachusetts to visit Urban at the nursing home. She brought a
three-page document entitled "Agreement by Parties." The
document stated that the parties "acknowledged that over the
course of the last approximately 20 years, [Urban] has not paid
[Finnegan] for the care giving she provided for him while he was
living in Florida." The 2016 agreement provided:
8
"Finnegan shall be exclusive beneficiary and Personal
Representative to the estate of John Urban upon his death
and for [Finnegan] to distribute the appropriate amounts
that [Urban] had previously instructed to Middlebury,
Northfield Mount Hermon,[5] DKE,[6] Essential Art[7] . . .
and to keep so she shall remain in the lifestyle she had
become accustomed while [Urban] lived with her."
The agreement also provided that Urban's "house is to be
transferred into [Finnegan's] name for her to do as she wishes
and believes [Urban] would like."
Finnegan presented the 2016 agreement to Urban. She
admitted that this was the first time that Urban had seen it in
its entirety. Finnegan testified that, when she presented the
agreement to Urban, he "at least looked at it, but [she]
d[id]n't know now if he was able to read it" or whether she read
it out loud to Urban at the time. The 2016 agreement expressly
stated that Finnegan and Urban agreed that Finnegan would "be
[the] exclusive beneficiary and Personal Representative to the
estate of John Urban upon his death . . . [and that it]
revok[ed] all former wills by [Urban] at any time." The
agreement was signed by Finnegan, Urban, and two witnesses. One
5 Northfield Mount Hermon is a private boarding school
attended by Urban, to which Urban left $150,000 in his will.
6 Presumably, the acronym stands for the Delta Kappa Epsilon
fraternity. The record reflects that Urban was a fraternity
brother at Middlebury.
7 The reference is to a nonprofit organization founded and
controlled by Finnegan.
9
witness was Finnegan's father, who was deceased at the time of
these proceedings. The other witness had also lived in a guest
house on the Finnegan estate and attested that she "only vaguely
remembered" the signing. She did recall that Urban stated "he
trusted [Finnegan] to take care of everything." Shortly after,
Finnegan left Massachusetts.
d. Procedural background. In February 2019, Urban died
from Alzheimer's dementia at the age of ninety-seven. On April
1, 2019, Attorney Singleton filed a petition in the Probate and
Family Court to probate Urban's 2016 will and to be appointed as
personal representative, in accordance with the 2016 will. In
June 2019, Finnegan filed an affidavit objecting to Attorney
Singleton's petition8 as well as a notice of claim for five
million dollars against Urban's estate.9 A month later, Finnegan
filed a petition in the Probate and Family Court to probate the
2016 agreement. In September 2019, eleven beneficiaries under
8 Because the 2016 will contains an in terrorem clause,
Finnegan's litigation forfeits her bequest. See Savage v.
Oliszczak, 77 Mass. App. Ct. 145, 147 (2010).
9 In January 2020, Finnegan filed a complaint in the
Superior Court against the estate, seeking five million dollars
in damages for services rendered to Urban. In April 2022, after
a hearing on the motion, a judge allowed the estate's motion for
summary judgment. The judge ruled that Finnegan "is not
entitled to quantum meruit based on the undisputed material
facts" and that Finnegan could not recover in equity because
"she has acted in bad faith." Moreover, the judge ruled that
Finnegan's "claims are barred by the doctrine of res judicata."
No appeal was filed.
10
the 2016 will, including the scholarship fund, objected to
Finnegan's petition.
In July 2020, the scholarship fund filed a motion for
summary judgment regarding both the 2016 will and the 2016
agreement. In February 2021, the judge allowed the scholarship
fund's motions for summary judgment. Regarding the 2016
agreement, the judge found that there was no genuine dispute of
material fact that it was the product of undue influence and
dismissed with prejudice Finnegan's petition to probate it.
Regarding the 2016 will, the judge found that there was no
genuine dispute of material fact that Urban possessed
testamentary capacity when he executed the 2016 will and that it
was not procured by undue influence. A decree entered admitting
the 2016 will to probate as "the Decedent's last will" and
appointing Attorney Singleton as personal representative. This
appeal followed.
2. Standard of review. In evaluating the allowance of a
motion for summary judgment, "we review de novo whether there
were genuine issues of material fact." Cellco Partnership v.
Peabody, 98 Mass. App. Ct. 496, 500 (2020). We ask "whether,
viewing the evidence in the light most favorable to the
nonmoving party, all material facts have been established and
the moving party is entitled to judgment as a matter of law."
Molina v. State Garden, Inc., 88 Mass. App. Ct. 173, 177 (2015),
11
quoting Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120
(1991). "While we examine the record in its light most
favorable to the nonmoving party, . . . '[c]onclusory
statements, general denials, and factual allegations not based
on personal knowledge [are] insufficient to avoid summary
judgment.'" O'Rourke v. Hunter, 446 Mass. 814, 821 (2006),
quoting Cullen Enters., Inc. v. Massachusetts Prop. Ins.
Underwriting Ass'n, 399 Mass. 886, 890 (1987).
3. The 2016 will. a. Undue influence. "To prove undue
influence, a contestant must show '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.'" Maimonides Sch. v. Coles, 71 Mass. App. Ct.
240, 255-256 (2008), quoting O'Rourke, 446 Mass. at 828. "In a
will contest involving allegations of undue influence, the
burden of proof ordinarily rests with the party contesting the
will." Germain v. Girard, 72 Mass App. Ct. 409, 412 (2008),
quoting Matter of the Estate of Moretti, 69 Mass. App. Ct. 642,
651 (2007). "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.'" Germain, supra
12
at 412-413, quoting Cleary v. Cleary, 427 Mass. 286, 295 (1998).
"[T]he burden of proving the absence of undue influence shifts
to the fiduciary only where he has actually taken part in the
questioned transaction." Rempelakis v. Russell, 65 Mass. App.
Ct. 557, 563 (2006).
Finnegan does not challenge the probate judge's conclusion
that the summary judgment record demonstrates that she would be
unable to meet the burden of showing undue influence at trial.
Rather, she argues that she would not have borne that burden.
She contends that, because Dr. Emerson was Urban's power of
attorney and a beneficiary of the will, the Emersons and the
scholarship fund (of which the Emersons are trustees) would have
the burden at trial to show the absence of undue influence and
that, on summary judgment, the Emersons and the scholarship fund
failed to demonstrate an absence of genuine disputed fact on
that point.10 See Arcidi v. National Ass'n of Government
Employees, Inc., 447 Mass. 616, 619 (2006) ("The moving party
has the burden of demonstrating affirmatively the absence of a
genuine issue of material fact on every relevant issue,
regardless of who would have the burden on that issue at
trial"). We disagree.
10Where this would leave us as to the fourteen
beneficiaries of the will who are not Dr. Emerson, his wife, or
the scholarship fund, see Germain, 72 Mass. App. Ct. at 413, is
a quandary that, thankfully, we do not reach.
13
The burden-shifting rule "applies not just to the drafter
of estate planning documents," but also to "one who serves as a
fiduciary under a power of attorney; was fully involved in all
the undertakings relative to the revisions of the testator's
will and estate plan, yielding the beneficial inheritance; and
exercised unrestricted and expansive power over the testator's
finances." Matter of the Estate of Moretti, 69 Mass. App. Ct.
at 643. The burden to show the absence of undue influence "is
generally met if the fiduciary shows that his principal made the
bequest . . . with the advice of independent legal counsel."
Cleary, 427 Mass. at 291. The advice of independent legal
counsel, however, is ineffective where the fiduciary "was an
intruder into the relationship between the attorneys and the
testator, and engaged in acts which, in effect, subverted the
independence of the legal representation." Matter of the Estate
of Moretti, supra at 644.
Here, there is no evidence that Dr. Emerson intruded on the
attorney-client relationship between Urban and Attorney
Singleton. Although Dr. Emerson drove Urban to Attorney
Singleton's office in 2013, 2014, and 2015, he did not drive the
legal relationship between Urban and Attorney Singleton. Cf.
Matter of the Estate of Sharis, 83 Mass. App. Ct. 839, 843
(2013) (decedent "lacked the advice of independent counsel
[where] . . . . Spinelli selected the attorney, communicated
14
with the drafting attorney by e-mail, filled in certain terms,
and transported [decedent] to her husband's nursing home for the
execution of her will. . . . No attorney reviewed the terms of
the will with [decedent]. Only Spinelli did so. Significantly,
the decedent had no prior wills"). Unlike in Matter of the
Estate of Moretti, where the fiduciary "played a substantial
role in the drafting process," 69 Mass. App. Ct. at 654,
Dr. Emerson did not. Attorney Singleton attested that, when he
discussed estate planning with Urban, "Dr. Emerson was never
present." Likewise, each time Urban executed his will -- in
2013, 2014, 2015, and 2016 -- Dr. Emerson was not present.
Although Dr. Emerson called Attorney Singleton in 2016
regarding Urban's request to revise his will, doing so was not
to Dr. Emerson's advantage. Increasing the bequest to
Middlebury College in the 2016 will had no effect on the
bequests to Dr. Emerson or his wife and in fact reduced the
bequest to the scholarship fund, which was to receive "the rest
and residue" of Urban's estate.11 Even though Dr. Emerson spoke
with Attorney Singleton first, Urban agreed to this revision
after meeting privately with Attorney Singleton. Accordingly,
the summary judgment record did not raise a triable issue of
11Although Attorney Singleton helped to create the
scholarship fund, which named the Emersons as trustees, "Urban
was either present or gave express approval for any course of
action while he was alive."
15
fact either that Dr. Emerson actually took part in the
questioned transaction or that the 2016 will was the product of
undue influence. See Rempelakis, 65 Mass. App. Ct. at 563, 567
(burden of proof never shifted where "Russell took no meaningful
part in the decedent's decision to supersede her 1988 will in
favor of a new disposition that benefitted Russell and his
family"). Cf. Matter of the Estate of Sharis, 83 Mass App. Ct.
at 842 (decedent's fiduciary held "power of attorney . . .
[with] near complete control of [decedent's] finances, and
played an instrumental role in arranging for the will to be
drafted and executed. It was therefore his burden to prove that
the will was not the product of his undue influence").
Similarly, the existence of truly independent legal counsel
would preclude a finding of undue influence in these
circumstances.
b. Testamentary capacity. Testamentary capacity "requires
freedom from delusion which is the effect of disease or weakness
and which might influence the disposition of [the testator's]
property" and the "ability at the time of execution of the
alleged will to comprehend the nature of the act of making a
will." Paine v. Sullivan, 79 Mass. App. Ct. 811, 817 (2011),
quoting Palmer v. Palmer, 23 Mass. App. Ct. 245, 250 (1986).
"[T]o determine testamentary capacity, '[t]he critical question
is whether the testator was of sound mind at the time the will
16
was executed. It has been held that, 'a person . . . may
possess testamentary capacity at any given time and lack it at
all other times.'" Matter of the Estate of Rosen, 86 Mass. App.
Ct. 793, 798 (2014), quoting O'Rourke, 446 Mass. at 827.
"Whether a testator had testamentary capacity is a question of
fact." Matter of the Estate of Galatis, 88 Mass. App. Ct. 273,
278 (2015). See Rempelakis, 65 Mass. App. Ct. at 563 (will
proponent "has the burden of proving that the decedent had
testamentary capacity at the time of her execution of the
instrument").
Here, there is no genuine dispute of material fact that
Urban possessed testamentary capacity when he executed the 2016
will. See Haddad v. Haddad, 99 Mass. App. Ct. 59, 69 (2021)
("There was no direct evidence to rebut the presumption [of
testamentary capacity] with respect to July 12, 2011, the day
[testator] executed his new estate documents"). Urban's
caregiver attested that, on the day she drove Urban to Attorney
Singleton's office to execute the 2016 will, "Mr. Urban was
clear headed and focused. . . . Mr. Urban immediately
recognized Attorney Singleton." She further attested that
"Mr. Urban was neither delusional nor confused." Likewise,
Attorney Singleton attested that, when Urban arrived at his
office to execute the will, "Urban immediately recognized [him]
. . . . [and] was alert and focused." After assessing Urban's
17
testamentary capacity, Attorney Singleton determined that Urban
possessed testamentary capacity. Each disinterested witness
attested that, when Urban arrived at Attorney Singleton's office
to execute his will, he "remembered [the witness] from the
previous times when [the witness] served as a witness for him."
When Urban executed his 2016 will, both witnesses signed an
"Affidavit to Due Execution of Will" where they "declare[d] that
[they] believe[d] this Testator to be of sound mind and memory."
Similarly, both witnesses attested that "Mr. Urban was alert and
focused when [they] spoke on May 3, 2016 . . . . [and] appeared
to be of sound mind."
In contrast, Finnegan was unable to testify to Urban's
testamentary capacity at the time he signed the 2016 will
prepared by Attorney Singleton because she had not seen him in
over a year. To be sure, Urban suffered from dementia, and we
do not doubt that a person might be so far afflicted that
medical records could demonstrate that he could not have had
testamentary capacity at the relevant time. Here, however, the
medical records do not reflect this stage of the disease.
Rather, records from April 1, 2016, reflect that, when Urban was
sent to the hospital with enzyme issues, he was "confused."
When assessed, apparently at the nursing home, three days after
the will signing, he had "self-feeding difficulty." Given the
variable nature of dementia, these records do not overcome the
18
specific testimony regarding Urban's condition on May 3, 2016,
and thus do not create a genuine issue of material fact. See
Haddad, 99 Mass. App. Ct. at 69-70 ("the presumption can be
rebutted by evidence that a testator was delusional,
incompetent, or confused in the days leading up to the making of
a will"); Matter of the Estate of Rosen, 86 Mass. App. Ct. at
799 ("the contestant's evidence is insufficient to defeat the
presumption that the testator had the requisite testamentary
capacity to execute his [will]"). This was not a case where
"the cognitive deficits associated with Alzheimer's disease
manifest[ed] themselves in the loss of abilities that bear on
testamentary capacity." Paine, 79 Mass. App. Ct. at 818.
c. Urban signing the 2016 will. Finnegan asserts that
Urban never signed the 2016 will. The will is notarized, and
Attorney Singleton, both disinterested witnesses, and the
caregiver each attested or testified that Urban signed the will.
To counter this evidence, Finnegan cites to an affidavit of the
keeper of records at the nursing home where Urban was living
stating that the nursing home has no record that Urban left the
premises on May 3, 2016. Finnegan, however, ignores the
keeper's second affidavit, which states the following:
"[I]n May of 2016, visitors who took patients out of the
building were supposed to voluntarily inform the nursing
staff [that] the patient was leaving the home. No employee
at the Nursing Home was assigned to enforce our policy
. . . . The Nursing Home was dependent on the visitors to
19
report the patient's trip to the staff. It is possible
that patient trips occurred without any evidence of the
trip in the facility records."
Contrary to Finnegan's assertion, the affidavits indicate that
Urban could have left the nursing home to execute the 2016 will
without the nursing home's having any record of him doing so.
Finnegan did not present any evidence to suggest otherwise.
Accordingly, there was no genuine dispute of material fact
whether Urban signed the 2016 will. See O'Rourke, 446 Mass. at
815-816.
4. The 2016 agreement. In the absence of a fiduciary
relationship, "a party challenging a will or other document on
the ground that it was procured through fraud or undue influence
bears the burden of proving the allegation by a preponderance of
the evidence." Rostanzo v. Rostanzo, 73 Mass. App. Ct. 588, 604
(2009). As stated, undue influence requires a showing 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." Maimonides Sch., 71 Mass.
App. Ct. at 255-256, quoting O'Rourke, 446 Mass. at 828. "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." Matter of
20
the Estate of Sharis, 83 Mass. App. at 842, quoting Neill v.
Brackett, 234 Mass. 367, 369, (1920). Finnegan disputes only
whether the 2016 agreement constituted an unnatural
disposition.12
Here, the summary judgment record demonstrates that there
is no genuine issue of material fact that the 2016 agreement
constituted an unnatural disposition. See O'Rourke, 446 Mass.
at 828 ("there is no suggestion in the record of an unnatural
disposition"). Between 2013 and 2016, Urban executed four
wills, all of which were drafted by Attorney Singleton, provided
for multiple beneficiaries (including Finnegan and her parents
and sister), and left "the rest and residue to the John P. Urban
Scholarship Fund." Significantly, unlike the 2015 and 2016
wills, which listed eighteen and seventeen beneficiaries,
respectively, the 2016 agreement left Urban's entire estate to a
sole beneficiary, Finnegan. The uncontradicted evidence,
however, established that Urban "was extremely proud of his idea
to establish the Scholarship Fund," that "he was happy to give
money to Mount Hermon and Middlebury College," and that "[he]
was a very social person" who had several close friends.
Finnegan, by contrast, was one of Urban's many friends and
had visited him in Massachusetts only once or twice before
12Finnegan correctly does not dispute the other elements of
undue influence.
21
presenting him with the agreement. Even when Urban was living
part-time in Florida, Finnegan complained to her attorney about
Urban's refusal to give her money and his "'control games' [that
she] really can barely tolerate these days." Although "the law
respects the choices of the competent testator" and "does not
overrule them for reasons of questionable wisdom or social
utility," Maimonides Sch., 71 Mass. App. Ct. at 256, absent any
evidence of a falling out with the other potential
beneficiaries, the 2016 agreement constitutes an unnatural
disposition.13 See Hernon v. Hernon, 74 Mass. App. Ct. 492, 498
(2009) (where "the testator had always expressed his intent to
split his estate evenly between both Peter's and Stephen's
children," "exclusion of his nephews Nicholas and Patrick . . .
made the disposition unnatural on the whole").
5. Motion to strike. On March 6, 2020, Finnegan's
attorney noticed the March 20, 2020, deposition of Barbara
Cannon, a licensed social worker and owner of a geriatric care
13Because of this conclusion, we need not reach the
question whether the 2016 agreement is a will. To be sure, the
agreement is "in writing," "signed by the testator," and "signed
by at least 2 individuals, each of whom witnessed . . . the
signing." G. L. c. 190B, § 2-502 (a). We note, however, that
the mere compliance with these formalities does not make the
agreement a will. Rather, the putative testator must "execute
it with the requisite testamentary intent." Duchesneau v.
Jaskoviak, 360 Mass. 730, 733 (1972). Cf. G. L. c. 190B, § 2-
502 (b) ("Intent that the document constitute the testator's
will can be established by extrinsic evidence").
22
management practice. On March 18, 2020, the parties agreed to
cancel the Cannon deposition. Two days later, Finnegan's
attorney questioned Cannon under oath without providing notice
to opposing counsel. See Mass. R. Civ. P. 30 (b) (1), as
appearing in 489 Mass. 1401 (2022) ("A party who wants to depose
a person by oral questions must give written notice to every
other party at least 7 days before"). In July 2020, Finnegan
attached a transcript of the questioning to her opposition to
the scholarship fund's motion for summary judgment. The
scholarship fund promptly moved to strike Cannon's statement.
The judge ultimately allowed the motion to strike.
We review a judge's allowance of a motion to strike for an
abuse of discretion. See Saxonis v. Lynn, 62 Mass. App. Ct.
916, 917 (2004), cert. denied, 546 U.S. 819 (2005). "An abuse
of discretion occurs only where the judge makes a clear error of
judgment in weighing the factors relevant to the decision . . .
such that the decision falls outside the range of reasonable
alternatives." Barbetti v. Stempniewicz, 490 Mass. 98, 105
(2022), quoting District Attorney for the N. Dist. v. Superior
Court Dep't, 482 Mass. 336, 342 (2019).
Here, the judge acted within his discretion in striking the
Cannon statement from the summary judgment record. The judge
found that "[t]he e mail exchange appended to that motion
warrants a conclusion that counsel agreed on March 18, 2020 to
23
cancel the [Cannon] deposition. . . . The statement under oath
is replete with hearsay and contains more than a few leading
questions. . . . This was a deposition in everything but name."
We discern no error. The statement consists of thirty-
three pages of transcription of Finnegan's counsel asking
questions of Cannon under oath. The transcribed questions and
answers present exactly like a deposition transcript, except for
the absence of opposing counsel and the corresponding absence of
stipulations, objections, and cross-examination. See Anselmo v.
Reback, 400 Mass. 865, 868-869 (1987) (one-party deposition
inadmissible as "declaration of a deceased person" under G. L.
c. 233, § 65, because it "unfairly denied an opportunity to
cross-examine when such an opportunity could readily have been
afforded").
A motion for summary judgment, or opposition thereto, may
be supported by "affidavits . . . made on personal knowledge"
and may be "supplemented or opposed by depositions, answers to
interrogatories, or further affidavits." Mass. R. Civ. P.
56 (e), 365 Mass. 824 (1974). See Kourouvacilis v. General
Motors Corp., 410 Mass. 706, 713-714 (1991). Accord Geller v.
Allied-Lyons PLC, 42 Mass. App. Ct. 120, 125 n.8 (1997)
(nonmoving party with burden of proof at trial must "designate
by affidavits or by depositions, answers to interrogatories, or
admissions on file specific facts showing that there is a
24
genuine issue for trial").14 Nothing in the rule allows for the
submission, for summary judgment purposes, of a transcribed
interview outside the context of a deposition, to which opposing
counsel is entitled to notice and the opportunity to attend and
cross-examine. See Mass. R. Civ. P. 30 (b), (c).
To be sure, Finnegan could have submitted an affidavit
signed by Cannon as part of the summary judgment record.15 A
signed affidavit and a transcript of answers under oath are
different creatures. Had Finnegan presented Cannon with an
affidavit, she would have had the opportunity to consider
carefully the information therein, to direct what information
would be included or not included in the affidavit, and to
research any information of which she was uncertain before
signing.
A transcribed examination, by contrast, has its advantages
of the formality of a court reporter, the spontaneity of the
responses, and the opportunity for follow-up questions. In the
14A party encountering difficulty obtaining an affidavit
must "make the tactical decision whether to seek a continuance
'to permit affidavits to be obtained or depositions to be taken
or discovery to be had.'" Matter of the Estate of Nevers, 100
Mass. App. Ct. 861, 868 n.5 (2022), quoting Mass. R. Civ. P.
56 (f), 365 Mass. 824 (1965).
15The hearsay provided, however, would have been
"unacceptable to defeat summary judgment," even if presented in
an affidavit. Locator Servs. Group, Ltd. v. Treasurer &
Receiver Gen., 443 Mass. 837, 865 (2005), quoting Madsen v.
Erwin, 395 Mass. 715, 721 (1985).
25
context of a deposition, it also allows for cross-examination by
opposing counsel and intervention, if appropriate, by counsel
for the witness. See Mass. R. Civ. P. 30 (c). It does not,
however, share the qualities of an affidavit. Finnegan's claim
on appeal that the Cannon statement "was the same thing as an
affidavit" is without merit. Accordingly, the judge acted
within his discretion in striking the Cannon statement from the
summary judgment record.
Decrees affirmed.