PNC Bank, N.A. , trustee, 
Christopher M. Falzone & others. 
This decision has been referenced in an "Appeals Court of Massachusetts Summary Dispositions" table in the North Eastern Reporter. And pursuant to its rule 1:28, As Amended by 73 Mass.App.Ct. 1001 (2009) are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass.App.Ct. 258, 260 N.4, 881 N.E.2d 792 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
This is the second of two appeals related to the validity of estate planning documents executed in 2009 by William A. Guthrie. Guthrie's estate plan consists of a pour-over will that, after disposing of certain tangible personal property, devises the residue of the estate to the trustee of Guthrie's inter vivos revocable trust (the trust). In the related appeal (the will contest), we vacated a decree and orders of the Probate and Family Court granting summary judgment and allowing a petition to probate a document offered as Guthrie's will (the will). We concluded in the will contest that there remained a genuine dispute of material fact with respect to Guthrie's testamentary capacity. See Falzone v. Sayen, 87 Mass.App.Ct. 1135, (2015) (memorandum and order pursuant to rule 1:28).
Due to the pendency of the will contest litigation, the plaintiff, named as trustee of the trust by virtue of a trust amendment Guthrie executed alongside the will, refrained from making any distributions to the trust beneficiaries and instituted this declaratory judgment action in the Probate and Family Court. The complaint sought permission to begin making distributions in accordance with the trust documents. The contestants filed objections to the validity of the trust, asserting the grounds of lack of capacity and undue influence by Lucien Yokana (Guthrie's brother-in-law, who acted as attorney-in-fact pursuant to a durable power of attorney). The same judge heard both the will contest and the declaratory judgment action, and although the plaintiff's motion to consolidate the two cases was denied, the judge issued an order declaring that the discovery in each case would be deemed discovery in the other case. After summary judgment issued in the will contest, the plaintiff filed a motion for summary judgment in the declaratory judgment action and sought an award of fees and costs. The motion for summary judgment was allowed. The judge ruled that the summary judgment decision in the will contest had preclusive effect and prevented the contestants from relitigating the issue of capacity. Therefore, according to the judge, the contestants' capacity claim was " wholly insubstantial, frivolous, and not advanced in good faith" within the meaning of G. L. c. 231, § 6F, and he ordered the contestants to pay fees and costs under " either" G. L. c. 231, § 6F, or G. L. c. 215, § 45 (the latter statute authorizes the Probate and Family Court to award fees and costs where justice so requires). A declaratory judgment issued authorizing the plaintiff to make distributions in accordance with the provisions of the trust.
In light of our decision in the will contest, we vacate the judgment. However, we conclude that summary judgment was properly allowed with respect to the issue of undue influence.
We concluded in the will contest appeal that questions of fact concerning Guthrie's testamentary capacity remained, thus preventing summary judgment. Accordingly, the basis for the judgment in the present case with respect to the issue of capacity has been eliminated, and cannot stand. The proper course is therefore for us to vacate the judgment. See Restatement (Second) of Judgments § 16 comment c (1982) (" If, when the earlier judgment is set aside or reversed, the later judgment . . . is still open to appeal . . . [and] an appeal has been taken and remains undecided . . . [t]he court should then normally set aside the later judgment" ).
Having concluded that the judgment must be vacated, we must now address whether, on remand, there remains a dispute of material fact with regard to the contestants' claim of undue influence. As noted, there was reciprocal discovery in the two cases. Many of the facts pertinent to the present case are set forth in our memorandum and order in the will contest, particularly those facts relating to the issue of capacity. We pause only to provide some additional background relevant to the issue of undue influence.
Beginning as early as 1994, Guthrie began to exhibit noticeable changes in his demeanor and temperament. According to the affidavit of objections filed in the will contest by George Sayen (one of the contestants), Guthrie " began to have outbursts of tremendous wrath and rage." George states in his affidavit that Guthrie's anger became directed at him. The contestants attribute these personality changes to the onset of Guthrie's dementia. The plaintiff, as did the proponent in the will contest, attributes Guthrie's dislike of George to Guthrie's belief that George had stolen property from the estate of Guthrie's late mother (George's grandmother). In any event, the evidence is uncontradicted that Guthrie exhibited an extreme dislike of George (regardless of the reason). There is also uncontradicted evidence that Guthrie was especially fond of his niece, Alice, who took care of him after suffering from a heart attack. Guthrie executed an amendment to the trust on May 29, 2009 (the same day as the execution of the will), that had the effect of leaving George nothing and of conveying Guthrie's house in Maine, along with its contents, directly to Alice.
Proof of undue influence, inter alia, requires a showing that the dispositions being challenged are " unnatural." O'Rourke v. Hunter, 446 Mass. 814, 828, 848 N.E.2d 382 (2006). There is nothing unnatural in a testator specifically remembering someone who acted as a caretaker. Heinrich v. Silvernail, 23 Mass.App.Ct. 218, 224, 500 N.E.2d 835 (1986). Similarly, there is nothing unnatural in a testator disinheriting a relative from whom he was estranged. See, e.g., Paine v. Sullivan, 79 Mass.App.Ct. 811, 817, 950 N.E.2d 874 (2011). Even were we to assume that Guthrie's enmity towards George was in part the product of dementia, this would not affect the outcome of this case. Indeed, by the contestants' own admission, Guthrie's anger toward George first became apparent in 1994 or 1995, well over a decade before Lucien Yokana assumed the role of attorney-in-fact under the power of attorney.
In sum, the evidence in the record creates no issue of material fact as to whether there was an " unnatural" disposition. Summary judgment was therefore properly allowed on the undue influence claim. O'Rourke v. Hunter, supra at 828.
For the foregoing reasons, the judgment is vacated, and the case is remanded for further proceedings consistent ...