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In re Estate of Rosen

Appeals Court of Massachusetts, Suffolk

December 30, 2014

In the Matter of the Estate of Fred S. Rosen (and a companion case [1] )

Argued December 10, 2013.

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, motions for partial summary judgment were heard by Elaine J. Moriarty, J., and the remaining issues also were heard by her; and a motion for attorney's fees was considered by her.

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.

Page 794

Susan E. Stenger for William P. Girard.

Michael H. Riley for Rachelle A. Rosenbaum & others.

Present: Berry, Meade, & Agnes, JJ.

OPINION

[23 N.E.3d 118] 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; and (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.

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

Page 795

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, 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 [23 N.E.3d 119] separately conveyed to Orietta Geha, and ...


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