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13-P-221                                                Appeals Court

             IN THE MATTER OF THE ESTATE OF FRED S. ROSEN
                       (and a companion case1).


                                No. 13-P-221.

         Suffolk.        December 10, 2013. - December 30, 2014.

                    Present:   Berry, Meade, & Agnes, JJ.


Will, Testamentary capacity, Power of appointment, Construction.
     Devise and Legacy, Power of appointment. Probate Court,
     Attorney's fees. Practice, Civil, Attorney's fees, Summary
     judgment. Power of Appointment.



      Petition for probate of a will filed in the Suffolk
Division of the Probate and Family Court Department on June 8,
2005.

     Complaint in equity filed in the Suffolk Division of the
Probate and Family Court Department on October 14, 2005.

     After consolidation, the cases were heard by Elaine J.
Moriarty, J., on motions for summary judgment; the cases were
heard by her; and a motion for attorney's fees was considered by
her.


     Susan E. Stenger for William P. Girard.
     Michael H. Riley for Rachelle A. Rosenbaum & others.


     1
       William P. Girard vs. Mayya Geha, Mirna Geha Andrews, and
Tanya Geha.
                                                                   2



    BERRY, J.   William P. Girard,2 will contestant and plaintiff

in an equity action consolidated in the Probate and Family

Court, appeals from (1) a decree allowing the will of Fred S.

Rosen (decedent or testator), (2) a judgment dismissing Girard's

complaint in equity against Mayya Geha, Mirna Geha Andrews, and

Tanya Geha (Geha sisters), which challenged the decedent's

beneficiary designation for his Teachers Insurance and Annuity

Association of America - College Retirement Equities Fund (TIAA-

CREF) account, (3) a judgment on a counterclaim brought in the

equity action by the Geha sisters that held the TIAA-CREF

beneficiary designation valid.   Girard first argues that the

testator lacked testamentary capacity when, on May 12, 2005, the

testator executed his will and changed the beneficiary

designation on his TIAA-CREF account.   He also argues that

regardless of the allowance of the will, article II (tangibles

remainder provision) is invalid for lack of sufficiently

identifiable beneficiaries.   He further contends that the award

of attorney's fees should be vacated because it is excessive and

was entered before he was allowed an opportunity to respond to

the petition.   We affirm.




    2
       We refer to William P. Girard by his last name. We refer
to his brother, who is mentioned below, by his full name, John
Girard.
                                                                     3


     Background.    The testator, who had been a physician, never

married, he had no children or siblings, and his parents were

both deceased.   However, during his seventy-four years he formed

many close friendships with various colleagues and their

families,3 as well as Girard and his brother (John Girard), long-

time patients he had treated since childhood.

     In May, 2005, the testator's health was deteriorating due

to a terminal illness; on March 11, 2005, after surgery to

remove a metastasized tumor, he was transferred from Brigham and

Women's Hospital to Youville Rehabilitation Center (Youville),

then subsequently, on May 4, 2005, to the Sherrill House, where

he remained until his death on May 21, 2005.

     The testator and Girard shared an especially close

relationship.    He was very active in guiding Girard's education,

assisted in finding him employment, sometimes supplemented his

income, and often traveled with him, especially to Anguilla;

Girard resided with the testator at certain times, drove the

testator to doctor visits, regularly visited with him during the

early stages of his illness in 2004 and 2005, brought the

testator his mail while he was convalescing at a friend's home,

     3
       Dr. Raif Geha and his wife Orietta Geha (coexecutrix) had
been friends with the testator since 1972; Orietta is also the
mother of the Geha sisters; the testator was the godfather to
all three of the Geha sisters. Rachelle Rosenbaum (coexecutrix)
was the testator's long-time assistant at the Center for Blood
Research. Dr. David Nathan was a long-time friend and
colleague.
                                                                   4


and was very involved in the planning, design, and building of

the testator's Anguilla home.   However, between March 26, 2005,

and May 18, 2005, the final months of the testator's illness,

Girard neither telephoned nor visited the testator after a

disagreement between the two men in March, 2005, regarding

Girard's dire financial situation.4   In April, 2005, the testator

separately conveyed to Orietta Geha, and later Attorney Robert

M. Allen and Rachelle Rosenbaum, that he felt that Girard was

not capable of handling the caretaking of the testator's

Anguilla property and wanted to place the property in a trust.

     On April 12, 2005, Attorney Allen met the testator at

Youville (Rosenbaum was present taking notes) to discuss placing

the Anguilla property into a land trust, removing Girard as a

beneficiary of the tangible items listed in his will, and

nominating Rosenbaum as a coexecutrix.   The testator met again

with Attorney Allen at the Sherrill House at 11:30 A.M. on May

9, 2005, to discuss and execute the newly drafted codicil to the




     4
       In January, 2005, the testator gave Girard a check for
$1,500, and another $1,000 at the end of February, 2005; in
March, 2005, while a patient at Youville, the testator refused
to give Girard $350 for his health insurance payment, telling
him instead "it would do him good to earn a living." Girard
then "reminded" the testator of their January, 2005,
conversation that Girard would quit his teaching job and care
for the testator during his illness; the testator "yelled at [ ]
Girard to leave and not come back."
                                                                   5


testator's October 21, 2004, will, and a new health care proxy.5

The testator's signature on each instrument was witnessed by two

staff members of the Sherrill House -- Stephanie Recchia,6 the

testator's appointed clinical social worker, and nurse manager

James Sugrue.

     On May 12, 2005, Attorney Allen returned to the Sherrill

House, accompanied by two of his employees (Jean Stremeckus and

Susan Polk) to witness the testator's execution of certain

documents.   The testator first acknowledged and executed the




     5
       On April 28, 2005, a psychiatric evaluation, which was
performed at Youville on the testator by nurse Marsha Gilmore,
indicated that the testator's "orientation, attention,
concentration, memory, language naming, fundamental judgment and
insight were normal." On May 2, 2005, a follow-up mental status
evaluation indicated a "normal" reading. The testator was
discharged from Youville on May 4, 2005, and transferred to the
Sherrill House; the discharge report indicated that he was
"alert and oriented times four" and "able to participate in goal
setting." Upon his admission to the Sherrill House that same
day, a "mini-mental health examination" reflected that the
testator scored a perfect "30 out of 30."
     6
       Recchia testified at trial that prior to witnessing the
execution of the codicil and health care proxy, the testator did
not appear to be confused and made eye contact with each person
speaking to him. Later that same day (at 4:15 P.M.), Recchia
performed a mini-mental state examination on the testator
because when she went to speak with him about a complaint he had
made about a staff member, "he did not appear the same way [she]
had found him in the morning cognitively and his complaint was
not making sense"; he scored a 19 out of 30, indicating
impairment. She noted in his chart that she suspected
"delirium," "most likely secondary to transfer."
                                                                   6


Fred S. Rosen Land Trust (land trust)7 relating to the Anguilla

property; he next executed his revised will8 and, then, executed

the TIAA-CREF beneficiary designation form, changing the

beneficiary from Girard to the Geha sisters.9   However, the

testator declined, upon Attorney Allen's inquiry, to remove the

Girard brothers as residuary beneficiaries under the will.

Attorney Allen testified at trial that the testator seemed to

have given thought to his decision to change the beneficiary on

his TIAA-CREF account, and that although he was gaunt and

     7
       This court affirmed a Probate and Family Court judge's
determination that the land trust was invalid for want of
definite beneficiaries, and "any trust assets would pass to the
estate of Rosen, in lieu of the provisions of the trust." See
Girard v. Allen, 68 Mass. App. Ct. 1110 (2007) (memorandum and
order pursuant to rule 1:28).
     8
       The testator's October 19, 2001, will named John Girard
and Orietta Geha as executors, left a Boston condominium and the
house in Anguilla to the Girard brothers, the residuary
beneficiaries were the Geha sisters; the superceding September
19, 2002, will instructed that the Boston condominium be sold,
and named the Girard brothers as residuary beneficiaries (with
the Geha sisters as contingent residuary beneficiaries); the
superceding October 21, 2004, will removed John Girard as
coexecutor, leaving Orietta Geha as sole executrix and Mirna
Geha as successor, and the Anguilla property was left solely to
William Girard; the contested May 12, 2005, will removed the
Anguilla property and $100,000 from the estate, placing them in
the land trust.
     9
       When Attorney Allen reviewed the disposition of assets
held in the TIAA-CREF account, indicating that Girard was the
named beneficiary, the testator "shook his head no," wanting to
make the beneficiary change because the testator was "very
disappointed in Bill Girard, that over the last few months [he]
hadn't seen Bill Girard, and that [Bill] had separated himself
from [the testator]'s life and seemed to be scared away by [his]
illness."
                                                                     7


appeared to be in periodic pain, he appeared to follow the

discussion in a manner consistent with prior meetings, making

regular eye contact and appropriate responses to questions.

Both Stremeckus and Polk agreed with Attorney Allen's

assessment.

     The testator's May 12, 2005, will, executed nine days

before his death, was presented for probate on June 8, 2005, by

Orietta Geha and Rosenbaum, coexecutrices nominated under the

will.     On August 2, 2005, Girard filed an objection to the

probate of the will, and, subsequently, an amended complaint in

equity challenging the decedent's beneficiary designation on his

TIAA-CREF account.     He asserted that the testator lacked

testamentary capacity at the time of execution of these

documents.10    On December 7, 2005, Girard successfully secured a

preliminary injunction in the equity action halting the

distribution of funds from the testator's TIAA-CREF account to

the designated beneficiaries.     The probate matter and equity

action were later consolidated.

     After several days of trial during June, August, and

September, 2010, the judge made more than four hundred findings

on the sole issue of the testator's testamentary capacity on May

12, 2005, when he executed his revised will and changed the

     10
       As to the will, Girard also asserted a claim of undue
influence. The judge allowed the executrices' motion for
summary judgment on this claim.
                                                                    8


TIAA-CREF beneficiary designation.   The judge found that the

testator's medical records show some "instances of confusion" in

the days leading up to, and following, the execution of his will

and change in beneficiary designation; however, she also found

that when the testator executed his will and changed the TIAA-

CREF beneficiary, he "did not have confusion caused by

delirium," but, in fact, had "testamentary capacity to execute a

will" and his estate plan "was not an unnatural disposition of

his assets."

     The judge concluded that "at the time he executed the will

and the change in beneficiary to his TIAA CREF retirement plan

Dr. Rosen had testamentary capacity to do so; understood the

nature of his assets . . . and understood the objects of his

bounty"; she reasoned that the testator "was not suffering from

del[i]rium at this time to the extent that it produced any

confusion which would preclude his ability to understand how he

wanted to leave his estate and that he was executing estate

documents."11   She also determined that the testator "had a long

history of interest and devotion to [the Geha sisters] and

provided them past financial gifts, provided advice on their


     11
       The judge also found that the testator's "actions in
remembering the need to obtain the social security numbers,
actually following through and obtaining them from Dr. Geha, and
then following through further and relaying them to Attorney
Allen speaks to his mental capacity over the course of the day,
and his determination that this is what he wanted to do."
                                                                       9


educational choices, and attended school graduations" and "also

enjoyed a very close relationship with the Girard brothers until

the last months of his life."    The judge gave weight to the

testimony of Attorney Allen, and the two witnesses to the will

and TIAA-CREF beneficiary change.

    Discussion.      Testamentary capacity.   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.   It has been held that, 'a person [ . . . ] may

possess testamentary capacity at any given time and lack it at

all other times.'"    O'Rourke v. Hunter, 446 Mass. 814, 827

(2006), quoting from Daly v. Hussey, 275 Mass. 28, 29 (1931).

The proponent has the burden of proving testamentary capacity.

O'Rourke v. Hunter, supra.    "A presumption that the testator had

the requisite testamentary capacity aids the proponent, but it

disappears if the opponent presents evidence of lack of

capacity."   Maimonides Sch. v. Coles, 71 Mass. App. Ct. 240, 252

(2008).   The requisite capacity "requires freedom from delusion

which is the effect of disease or weakness and which might

influence the disposition of his property.     And it requires

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 from Palmer

v. Palmer, 23 Mass. App. Ct. 245, 250 (1986).
                                                                   10


    With respect to the testator's testamentary capacity, there

was evidence that the judge credited that on the morning the

testator executed his will and TIAA-CREF beneficiary change he

was bright and conversant; he asked for assistance with an

outside telephone line from his room then dialed the intended

number from memory; he asked Dr. Geha for the social security

numbers of his daughters so that he could leave them retirement

money, then later called Attorney Allen to recite the social

security numbers to him to include on the beneficiary

designation form; at the time of execution, Attorney Allen, and

both witnesses, observed the testator to be alert, making eye

contact during discussions and seeming to understand everything

that was being said to him regarding changes that were being

made to his estate per his requests.

    Girard counters by emphasizing notations in the testator's

medical records indicating sporadic periods of confusion and

hallucinations from which he suffered (some caused by

medication), and expert testimony by a nontreating physician

specializing in geriatric psychiatry.   However, these arguments

reveal only that there were conflicts in the evidence.   Girard

has "provided no basis to doubt that the judge, who was in 'a

superior position to appraise and weigh the evidence,' carefully

considered the conflicting evidence and assigned it the weight

[she] thought appropriate."   Brandao v. DoCanto, 80 Mass. App.
                                                                    11


Ct. 151, 155-156 (2011) (citation omitted).     "With evidence in

the record sufficient to support [the judge's] finding that the

decedent was competent to execute the will and [beneficiary

designation], the existence of contrary evidence did not render

[her] finding unwarranted."     Rempelakis v. Russell, 65 Mass.

App. Ct. 557, 568 (2006).

    In sum, the contestant's evidence is insufficient to defeat

the presumption that the testator had the requisite testamentary

capacity to execute his May 12, 2005, will and TIAA-CREF

beneficiary designation form.    See Maimonides Sch. v. Coles,

supra at 254.

    Tangible remainder provision.     Girard also argues that the

judge erred in granting partial summary judgment in favor of the

coexecutrices after determining that the tangible remainder

provision contained in article II of the May 12, 2005, will was

a valid power of appointment.    He claims that the provision

creates a trust, which fails, because the language designating

"one or more of my friends" does not provide for sufficiently

ascertainable beneficiaries.

    To begin, because the language of article II does not

provide the entire class of beneficiaries, we agree with the

trial judge that it is invalid as a trust.    See Minot v.

Attorney Gen., 189 Mass. 176, 180-181 (1905).     See also

Restatement (Third) of Trusts § 46 comment a (2003).
                                                                  12


     We look next to determine whether the provision creates a

power of appointment.    "A power of appointment is a power of

disposition given to a person over property not his own by

[someone] who directs the mode in which that power shall be

exercised by a particular instrument."    Thompson v. Pew, 214

Mass. 520, 522 (1913) (citation omitted).    The power can be

either general or specific, or "[a] power may be to appoint by

deed or will."   Ibid.   However, if the power is not expressly

referenced in the contested will provision, "[t]he execution of

[such] power is a question of intent."    Frye v. Loring, 330

Mass. 389, 394 (1953).    "[I]n construing language in a will,

'[t]he fundamental object . . . is to ascertain the testator's

intention from the whole instrument, attributing due weight to

all its language, considered in light of the circumstances known

to the testator at the time of its execution, and to give effect

to that intent unless some positive rule of law forbids.'"

Hochberg v. Proctor, 441 Mass. 403, 410 (2004), quoting from

Flannery v. McNamara, 432 Mass. 665, 667-668 (2000).

     Here, it is clear from the language of article II that the

testator intended for the executrices to make decisions as to

the particular friends to whom, or charitable organizations to

which, his tangible personal property would be distributed.12


     12
       Article II provides: "I give the balance of my tangible
personal property, including any items not effectively disposed
                                                                     13


The provision grants an "absolute and uncontrolled" power to the

executrices to determine the intended recipients of the

property, but also imposes limitations as to the recipients and

the maximum amount to be received by the executrices.     We agree

with the trial judge that construing this language as a power of

appointment "would preserve [the testator's] intent and allow

the [executrices] to administer the estate in a way that is

consistent with [the testator's] overall estate plan, including

the other articles in the contested May 12, 2005, Will."

Interpreting the language of article II in this manner

effectively harmonizes the provisions of the entire instrument.

See Hershman-Tcherepnin v. Tcherepnin, 452 Mass. 77, 84 (2008).

    As there are no genuine issues of material fact, the judge

properly granted partial summary judgment in favor of the

proponents.   See Mass.R.Civ.P. 56(c), as amended, 436 Mass. 1404

(2002); Ng Bros. Constr., Inc. v. Cranney, 436 Mass. 638, 643-

644 (2002).

    Attorney's fees for probate matter.    Girard finally argues

that the award of attorney's fees and costs to counsel for the

coexecutrices should be vacated, because it is excessive.     As

reduced, in part, by the Probate Court judge, the fees awarded


of in accordance with the preceding provisions of this Article,
to and among such one or more of my friends (including my
Executor) or such one or more charitable organizations described
in Sections 170(c) and 2055 of the Code as my Executor shall, in
my Executor's absolute and uncontrolled discretion, select."
                                                                  14


to the counsel for the coexecutrices of the will were $140,015.

We conclude that the amount of the attorney's fees in this

complex case involving a four million dollar estate, a seven-day

trial in the Probate Court and a separate equity action were

well justified in the Probate Court judge's rationale.13

     The Probate Court has broad discretion to determine an

appropriate award of fees, costs, and expenses to an attorney


     13
       The Probate Court judge entered fulsome findings and a
rationale for the attorney's fee award, including, in pertinent
part, as follows:

          "Both the probate and equity cases involved
     substantial time. Both the probate and equity cases were
     consolidated for a seven day trial and included trial
     preparation and post trial preparation of proposed findings
     of fact. The case involved reviewing estate planning
     documents, extensive medical records, interviewing eleven
     people referenced in the statement of objections to the
     will along with the witnesses to the will; preparation of
     six witnesses for deposition, attending eleven depositions
     (three of which were two days); drafting pleadings,
     drafting and responding to discovery, reviewing pension
     documents, preparation of motion for summary judgment on
     undue influence issue including multiple affidavits and
     preparation of oppositions to motion for summary judgment
     of objectant. Court appearances on motion for summary
     judgment, pretrial conference, status conference,
     preparation of twelve witnesses for trial; preparation of
     trial exhibits; retention and preparation of expert
     witnesses, miscellaneous correspondence and telephone
     calls. Counsel prevailed on the motion for summary
     judgment as to the undue influence issue.

          "The equity action similarly entailed miscellaneous
     correspondence and telephone communications with different
     parties and preparation and response to discovery,
     preparation of a motion for summary judgment; preparation
     of three defendants for depositions, and attendance at
     depositions."
                                                                    15


for services rendered to an estate.     See G. L. c. 215, §§ 39A,

45.   See also Matter of the Estate of King, 455 Mass. 796, 809

(2010).    The factors to be considered in such award are numerous

but well established.    Id. at 807.   "Moreover, where fees are

paid to counsel who may not have been employed by those whose

estates are thus diminished they are to be awarded on strictly

conservative principles."     Id. at 808 (quotations and citation

omitted).

      As evidenced by the findings with regard to the attorney's

fees, the trial judge considered the factors required in

determining a fair and reasonable award of fees and costs.     In

addition, it is apparent from her reduction of certain fees and

costs that she carefully reviewed the attorney's billing

records, and proportionately allocated the award between the

probate and equity matters.    For this reason, we see no error

and certainly no abuse of her broad discretion in the award

imposed.14


      14
       In one ending paragraph in his brief, Girard challenges
the award of attorney's fees, contending that some
undifferentiated part of the award should be set aside because
it relates to the equity action, rather than to the estate
litigation. In this paragraph, Girard also argues that the
judge indicated that, if she ultimately ruled in the
coexecutrices favor, Girard could file an opposition to the
attorney's fees request filed by the coexecutrices. Girard,
however, never filed a motion pertaining to the fee request in
the Probate Court, nor did he seek leave in this court to do so,
and this was so notwithstanding the delayed notice of the final
judgment in favor of the coexecutrices. The one ending
                                                                   16


    Attorney's fees for appeal.    The coexecutrices have filed a

motion for appellate attorney's fees with a submission detailing

the legal work done and the hours billed supporting the

attorney's fees requested.   Rather than filing a separate

motion, the correct procedure is to request attorney's fees in

the appellate brief.   See Fabre v. Walton, 441 Mass. 9, 10

(2004) ("[W]here a party seeks an award of appellate fees, he or

she must make that request in the brief").

    We note that in this case, the motion fully addresses the

issue of appellate fees.   The coexecutrices have prevailed on

appeal, and the attorney's fees will be charged against the

estate.   Hence, in this particular case, we deem it appropriate

not to elevate form over substance, and we will, in our

discretion, consider the motion as filed.    "[A]n appellate court

retains the authority to consider a waived request [for

attorney's fees] as a matter of discretion."    Beal Bank, SSB v.

Eurich, 448 Mass. 9, 12 (2006).

    Girard's counsel, if appellant Girard is so inclined, is

granted leave to file a response to the coexecutrices' motion


paragraph in Girard's brief, without citation to legal authority
or specification, fails to meet the level of appellate argument
required by Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921
(1975). Given the lack of adequate briefing and the lack of any
opposition filing in the Probate Court, we will not further
address Girard's belated contentions. And, for the reasons
stated above, we have concluded that the fee award, which was
amply explained by the Probate Court judge, was not an abuse of
discretion. See note 13 and accompanying text, supra.
                                                                  17


and submission for appellate fees.   Any such response shall be

filed with the clerk of this court within fourteen days of the

date of the rescript.   See Fabre v. Walton, supra ("[T]he

opposing party will be afforded a reasonable opportunity to

respond to [the] submission [for appellate attorney's fees]").

                                     In no. SU05P1241EP1, the
                                       decree allowance of will
                                       dated July 21, 2011, is
                                       affirmed.

                                     In no. SU05E0130GCI, the
                                       judgment of dismissal dated
                                       July 21, 2011, is affirmed.

                                     In no. SU05E0130GCI, the
                                       judgment on counterclaim
                                       dated July 21, 2011, is
                                       affirmed.
