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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.
