Christopher M. Falzone , executor, 
David C. Sayen & another. 
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
After suffering from dementia for years, William A. Guthrie, died on June 4, 2011. Guthrie never married, and had no children. At issue is the validity of the will he executed on May 29, 2009. On June 28, 2011, Christopher M. Falzone (proponent), the attorney nominated to serve as executor, filed a petition to probate the will. Two of Guthrie's nephews, David and George Sayen, sought to oppose the will, and each filed an affidavit of objections. On May 16, 2012, the proponent moved for summary judgment, requesting that the judge admit the will to probate and order an award of costs pursuant to G. L. c. 215, § 45. Summary judgment was allowed and, in a subsequent order, the judge awarded the estate $148,548.44 in attorney's fees and costs. This appeal followed. For the reasons below, we are constrained to conclude that summary judgment should not have been allowed. Accordingly, we vacate the decree and orders.
In 2006, Guthrie was admitted to Mount Auburn Hospital. He required one-on-one care and supervision because he " tend[ed] to wander about and ha[d] severe memory problems." Doctors at New England Medical Center later diagnosed him with " fairly progressive dementia" and recommended his placement in a long-term care facility. Guthrie was placed at Sherrill House, a psychiatric care facility, where his primary care physician diagnosed him as " psychotic" and suffering from dementia of the Alzheimer's type. The physician at Sherrill House found that Guthrie frequently experienced hallucinations, suffered from paranoid delusions, and noted that Guthrie could not remember where he lived or events that had taken place minutes earlier. She further noted that Guthrie " confabulated"  and employed humor to compensate for his mental deficits.
Guthrie's brother-in-law, Lucien Yokana, acted as Guthrie's attorney-in-fact pursuant to a durable power of attorney. In 2006, he arranged for Guthrie's transfer to Rogerson House, a skilled nursing home specializing in dementia and memory loss, where Guthrie resided until his death. Once he had moved to Rogerson House, Guthrie underwent a series of evaluations at McLean Hospital in late 2006 and early 2007. The physician at McLean observed that Guthrie was a " limited historian with limited insight into his incapacitated state," and noted that he heard voices, conversed with nonexistent people, suffered from hallucinations, had difficulty recalling recent events and recognizing people, and was unable to perform many activities for himself. The McLean physician summarized Guthrie's condition as " moderately severe dementia that includes rapid forgetting, executive dysfunction, visual hallucinations, agitation and possible depressed mood."
Dr. Ilene Crofton, a physician who treated Guthrie at Rogerson House, submitted an affidavit in which she averred that a new regimen of medications begun in February, 2007, caused Guthrie's condition to be " stabilized."  However, she conceded in her deposition that any improvements would have been only to some aspects of Guthrie's mental condition (e.g., his psychosis) and that Alzheimer's dementia itself does not improve over time.
To prevail on summary judgment, the moving party must show that " viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to a judgment as a matter of law." Sullivan v. Brookline, 435 Mass. 353, 356, 758 N.E.2d 110 (2001) (internal citations and quotations omitted). A will proponent moving for summary judgment must " affirmatively demonstrate[ that the contestant[ ha[s] 'no reasonable expectation of proving an essential element of [the] case.'" Maimonides, 71 Mass.App.Ct. at 249, quoting from O'Rourke v. Hunter, 446 Mass. 814, 828, 848 N.E.2d 382 (2006). Our review is de novo. Maimonides, supra at 250-251.
With respect to the issue of testamentary capacity, the proponent must show, 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. 245, 250, 500 N.E.2d 1354 (1986), quoting from Goddard v. Dupree, 322 Mass. 247, 250, 76 N.E.2d 643 (1948).
Viewing the record in the light most favorable to the contestants, we conclude that there remains a genuine dispute of material fact with respect to the issue of testamentary capacity. We disagree with the proponent's argument that the contestants' evidence consisted of only " general statements about the [testator's] health, including [his] mental health." O'Rourke v. Hunter, 446 Mass. at 827. To the contrary, the evidence creates a factual dispute with respect to the specific question of whether " the cognitive deficits associated with Alzheimer's disease manifest[ed] themselves in the loss of abilities that bear on testamentary capacity." Paine v. Sullivan, 79 Mass.App.Ct. 811, 818, 950 N.E.2d 874 (2011).
The contestants offered the affidavit of Dr. James Beck, a board certified forensic psychiatrist. Based on his review of Guthrie's medical and psychiatric records through the date of his death, Dr. Beck opined that, to a reasonable medical certainty, Guthrie lacked the capacity to execute a will on May 29, 2009. He concluded that Guthrie suffered from dementia with short-term memory deficits, confusion, and " impaired mental function" throughout the relevant period, from November, 2006, until his death in June, 2011, and that these deficits deprived Guthrie of the capacity to execute a will. Although Dr. Beck's affidavit is relatively terse, it must be read against the rich backdrop of medical records on which it is based. As summarized above, the multiple medical and psychiatric evaluations from New England Medical Center, Sherrill House, and McLean Hospital provided support for the contestants' position that Guthrie's dementia affected his lucidity, memory, ability to pay attention, and ability to grasp information. Although, as the judge emphasized, the psychiatric evaluations on which Dr. Beck relied were not generated contemporaneously with the will signing, the proponent's own expert, Dr. Crofton, acknowledged that the ...