payable on death

Dora Shaffer died on September 25, 1994, leaving a will that named her son Shea Rood and her daughter Estelle Newberg as coexecutors. On November 7, 1994, Estelle petitioned the Probate Court for allowance of the will. 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. 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. 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. The estate and equity actions were consolidated, and after trial the judge issued a memorandum of findings of fact and conclusions of law. 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. 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. From 1972 until 1989 or 1990, Rood advised Shaffer on financial matters and assisted with errands. Beginning in 1989 or 1990, Newberg, who had lived with Shaffer since 1971, took over those responsibilities. 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. 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. 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. Newberg knew the items were in his box but did not correct Shaffer's belief. Between June 1991 and April 1992, Shaffer changed or opened the three joint accounts with Newberg. 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. On appeal, the court held that the evidence did not support the same result for the Salem account opened in December 1989. Newberg appealed from the judgments in both the equity and estate actions. Rood appealed from the allowance of attorney's fees and costs to Newberg and Estelle. 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. 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.