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Testamentary Capacity in Massachusetts

The Appeals Court of Massachusetts recently addressed the issue of testamentary capacity. In In the Matter of the Estate of Fred S. Rosen, a will contestant appealed a court decree allowing the will, a judgment dismissing his challenge to the decedent's retirement account beneficiary designation, and a judgment holding that the beneficiary designation was valid. The contestant argued that the testator did not have testamentary capacity when he changed his will and beneficiary designation. He further argued that the tangible remainder provision of the will was invalid because it did not sufficiently identify the beneficiaries.


The testator had no close living family, but he had developed a close relationship with the contestant. The contestant had lived with the testator at times, driven him to medical appointments, and visited him, even after the testator became sick.

According to the court's opinion, however, the two men had a disagreement during the testator's illness, and the contestant did not visit or call the decedent from March 26 to May 18, 2005. The testator died on May 21, 2005.

The will, executed in October 2004, had named the contestant as the beneficiary of certain real property. There was evidence, however, that in April of the following year, the testator expressed concern the contestant was unable to take care of that property and said he wanted to put that property in a trust.

On April 12, the attorney and testator discussed the land trust and removing the contestant as beneficiary of the tangible items listed in the will. The testator executed the land trust and his revised will on May 12. He also signed a beneficiary designation form, changing the beneficiary on a retirement account from the contestant to the testator's goddaughters. He specifically declined to remove the contestant and the contestant's brother as residuary beneficiaries.

After the testator's death and presentation of the will, the plaintiff objected to the probate and challenged the beneficiary designation, alleging a lack of testamentary capacity. The two cases were consolidated.

The testator's attorney and his employees testified that the testator seemed to follow the conversation and understand the changes in his estate plan on May 12. Although medical records noted the testator showed some confusion in the days before and after he signed the documents, the judge found that he had testamentary capacity when he signed.

The Appeals Court noted that a testator can have testamentary capacity at some times and not others. In this case, evidence was presented indicating that the testator was alert and aware when he executed the documents. He had even performed several related tasks, including dialing a phone number from memory, requesting his goddaughters' social security numbers, and providing those numbers to his attorney over the phone. The attorney and the witnesses testified that the testator seemed to understand the conversation and the changes that were being made in his estate plan.

The contestant argued that the medical records showed times of confusion and hallucination. The Appeals Court noted that the contestant had provided conflicting evidence but had not provided anything to suggest the judge had not considered and weighed the conflicting evidence. The existence of conflicting evidence does not mean the ruling was improper when there was sufficient evidence to support a finding that the testator was competent when the documents were executed. The Appeals Court found that the contestant's evidence was insufficient to overcome the presumption of testamentary capacity.

Both the trial court and the Appeals Court agreed that language in the tangible remainder provision designating "one or more of my friends" as beneficiaries was invalid as a trust because it failed to identify the entire class of beneficiaries. The language provided that the tangible person property would go to such friends or charitable organizations as the executrices chose in their "absolute and uncontrolled discretion," and both the trial court and appellate court found that accepting the language as a power of appointment preserved the testator's intent. The Appeals Court affirmed the partial summary judgment in favor of the proponents.

This case illustrates some of the issues that may arise when an estate plan is changed during a serious illness. While it is not always possible to avoid such changes, a person who intends to create or change an estate plan should not delay doing so. Documents executed during a serious illness may be more vulnerable to challenges based on testamentary capacity.

If a testator does need to make changes during a serious illness, an experienced estate planning attorney can help document evidence of testamentary capacity. If you need assistance with estate planning or probating or administering an estate, call the Law Offices of Richard Mucci at (781) 729-3999.

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