718 N.E.2d 886 (Mass. App. 1999)
Dora Shaffer died on September 25, 1994, leaving a will that named her son Shea Rood and her daughter Estelle Newberg as coexecutors.1 On November 7, 1994, Estelle petitioned the Probate Court for allowance of the will.2 Rood did not join the petition but instead filed an affidavit of objections claiming that Michael Newberg, Estelle's son, had used undue influence and that the will was invalid for lack of testamentary capacity.3 Rood also filed a separate complaint seeking an order requiring Newberg to turn over to the estate the proceeds of four bank accounts that Shaffer had held jointly or in trust for Newberg.4
The four accounts were a Salem Five Cents Savings Bank checking account of approximately $86,000 titled in Shaffer's name as trustee for Newberg, an Eastern Bank savings account of approximately $52,000 in both names, and two Marblehead Savings Bank accounts totaling approximately $60,300 also in both names.5 The estate and equity actions were consolidated, and after trial the judge issued a memorandum of findings of fact and conclusions of law.6 In the equity action, the judge ruled that Newberg had committed fraud and exerted undue influence over Shaffer and, therefore, had obtained the four bank accounts through improper means.7
The judge's findings established that Shaffer's gross estate at death was $841,827 and included thirteen accounts in her name, twenty-one survivorship accounts, personal property, and her interest in a home.8 From 1972 until 1989 or 1990, Rood advised Shaffer on financial matters and assisted with errands.9 Beginning in 1989 or 1990, Newberg, who had lived with Shaffer since 1971, took over those responsibilities.10 In 1972, Shaffer and Rood had opened a safe deposit box at Security National Bank, and Shaffer had instructed Rood to remove her bankbooks and jewelry if she became seriously ill.11
In January 1991, Shaffer removed the bankbooks and jewelry from the shared safe deposit box and Newberg placed them in a box he opened at Shore Bank.12 On April 11, 1991, while Shaffer was hospitalized with pneumonia, Rood discovered the items missing and informed her, causing her to become agitated and to believe Rood had taken them.13 Newberg knew the items were in his box but did not correct Shaffer's belief.14 Between June 1991 and April 1992, Shaffer changed or opened the three joint accounts with Newberg.15 On October 16 and 23, 1992, Newberg drove Shaffer to her attorney's office where she executed the new will in his presence, told the lawyer and a witness that she was changing the will because of Rood's alleged conduct, and granted Newberg a durable power of attorney.16 On appeal, the court held that the evidence did not support the same result for the Salem account opened in December 1989.17
Newberg appealed from the judgments in both the equity and estate actions.18 Rood appealed from the allowance of attorney's fees and costs to Newberg and Estelle.19 He also appealed from the denial of his request to strip Estelle of benefits under the will on the ground that she had conspired with Newberg.20 The judge had awarded Rood $58,143.12 in fees and costs and awarded Newberg and Estelle $27,666.65, with the latter amount to be paid from the estate residue.21
Whether the probate judge's findings of fact were clearly erroneous or plainly wrong?22
A finding of fact is clearly erroneous when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.23 The judge's assessment of the quality of the testimony is entitled to considerable respect because it is the trial judge who, by virtue of his firsthand view of the presentation of evidence, is in the best position to judge the weight and credibility of the evidence.24 If the trial judge makes one of several possible choices of what facts are supported by the evidence, the judge's choice is not clearly erroneous.25 The standard of review is plainly wrong for probate proceedings to allow or set aside a will and clearly erroneous for equitable proceedings, but there is no essential difference between the two standards.26
No. The judge's findings of fact were supported on any reasonable view of the evidence, including all rational inferences of which it was susceptible.27 There was conflicting evidence on practically every aspect of Rood's claims.28 The judge found Rood's testimony to be more credible than that of Newberg.29 The judge's choice among possible facts supported by the evidence is not clearly erroneous or plainly wrong.30
The probate judge's findings of fact were not clearly erroneous or plainly wrong.31
Whether the evidence was sufficient to support findings that Newberg committed fraud and exerted undue influence on Shaffer regarding the 1992 will and three of the bank accounts?32
To prove fraud by deceit, a plaintiff ordinarily must show that the defendant made a false statement of a material fact with knowledge of its falsity to induce the plaintiff to act, together with a reliance by the plaintiff on the false statement to the plaintiff's detriment.33 Nondisclosure may amount to fraud if a party is under a duty to the other to exercise reasonable care to disclose the matter in question.34 The duty may arise if there is a fiduciary or other similar relation of trust and confidence between the parties.35 A confidential relationship may be found on evidence indicating that one person is in fact dependent on another's judgment in business affairs or property matters.36 Whether a relationship of trust and confidence exists is a question of fact.37
Yes. Newberg was in a confidential relationship with Shaffer.38 Shaffer told her attorney that she was very dependent on Newberg.39 Newberg prepared and gave the list of Shaffer's bankbooks and other items to the attorney at the time of the preparation of the 1992 will.40
Newberg was present at Shaffer's direction when she discussed the contents of her new will with her attorney and when she executed the will.41 Shaffer gave the will to Newberg to put in his safe deposit box to which she did not have access.42 At the time she executed her will, Shaffer gave Newberg a durable power of attorney which she understood gave him full power to handle her financial transactions.43 Because of that relationship, Newberg had a duty to disclose to Shaffer that she was mistaken in her accusations against Rood.44
Newberg knew that Rood had not taken the items from the safe deposit box and yet he remained silent when he repeatedly heard Shaffer voice her anger because she believed that Rood had taken her property.45 Newberg was aware that his nondisclosure was affecting Shaffer's disposal of her assets when Shaffer, in his presence, made it known to her attorney that she was changing her will because of her erroneous beliefs regarding Rood's conduct.46 Newberg's nondisclosure also affected at least three bank accounts because Shaffer opened or changed those accounts following her quarrel with Rood at the hospital.47 The evidence does not support the same result for the Salem account opened in December 1989.48 That account was opened a year and one-half before the incident in the hospital.49 Shaffer did not alter the status of the account at any time.50
The evidence was sufficient to support findings that Newberg committed fraud and exerted undue influence on Shaffer regarding the 1992 will and three of the bank accounts but not the Salem trustee account.51
Whether prejudgment interest at the statutory rate should be awarded on the proceeds of the bank accounts?52
In any action in which damages are awarded, but in which interest on said damages is not otherwise provided by law, there shall be added by the clerk of court to the amount of damages interest thereon at the rate of twelve percent to be determined from the date of commencement of the action.53 Damages is the word which expresses in dollars and cents the injury sustained by a plaintiff.54 Interest is awarded to compensate a damaged party for the loss of use or the unlawful detention of money.55 The damaged party is entitled to a return on the money that the party would have had but for the other party's wrongdoing.56
Yes, in part. But for Newberg's acts of fraud, the sum of the three accounts would have been included in the residue of Shaffer's estate.57 The residue is to be shared equally by Rood and his sister Estelle.58 Thus Rood has been deprived of the use of one-half of the sum of the accounts and not of the entire amount.59
Newberg must pay prejudgment interest on the amount of one-half of the sum of the three accounts to which the estate is entitled.60 The award of interest is affirmed as to the Marblehead Savings accounts and the Eastern Bank account but not the Salem account and therefore the sum on which interest is to be based must be recalculated.61
Prejudgment interest at the statutory rate should be awarded on one-half the proceeds of the three bank accounts affected by the fraud and undue influence.62
Whether Estelle and Newberg engaged in a civil conspiracy to commit fraud or undue influence?63
Rood argues that there existed a conspiracy to commit fraud between Newberg and his mother. This claim is without merit.64
Estelle and Newberg did not engage in a civil conspiracy to commit fraud or undue influence.67
Whether the probate judge's orders regarding payment of counsel fees and costs required remand for an evidentiary hearing and written findings?68
Although the award of counsel fees is left to the discretion of the Probate Court, the court must evaluate the propriety of the order with written findings to support it taking into account such factors as the size of the estate, the merits of the claims raised, the benefit the litigation has conferred upon the estate, and the degree to which the parties have succeeded in their claims.69
Yes. It is not clear in what manner the judge ordered that attorney's fees be paid.70 The parties assert different divisions of payment between Newberg, the estate, and Rood.71 The court cannot evaluate with confidence the propriety of this aspect of the judge's order.72 The issue of counsel fees must be remanded to the Probate Court for a hearing.73 The judge should prepare written findings to support his order.74
The probate judge's orders regarding payment of counsel fees and costs required remand for an evidentiary hearing and written findings.75