IN THE MATTER OF THE ESTATE OF FRED S. ROSEN (and a companion case [Note 1]).

BERRY, J. William P. Girard, [Note 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, (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, [Note 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

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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. [Note 4] In April, 2005, the testator separately conveyed to Orietta Geha, and later Attorney Robert M. Allen and Rachelle Rosenbaum, that he felt that Girard was not capable of handling the caretaking of the testator's Anguilla property and wanted to place the property in a trust.

On April 12, 2005, Attorney Allen met the testator at Youville (Rosenbaum was present taking notes) to discuss placing the Anguilla property into a land trust, removing Girard as a beneficiary of the tangible items listed in his will, and nominating Rosenbaum as a coexecutrix. The testator met again with Attorney Allen at the Sherrill House at 11:30 A.M. on May 9, 2005, to discuss and execute the newly drafted codicil to the testator's October 21, 2004, will, and a new health care proxy. [Note 5] The testator's signature on each instrument was witnessed by two staff

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members of the Sherrill House -- Stephanie Recchia, [Note 6] the testator's appointed clinical social worker, and nurse manager James Sugrue.

On May 12, 2005, Attorney Allen returned to the Sherrill House, accompanied by two of his employees (Jean Stremeckus and Susan Polk) to witness the testator's execution of certain documents. The testator first acknowledged and executed the Fred S. Rosen Land Trust (land trust) [Note 7] relating to the Anguilla property; he next executed his revised will [Note 8] and, then, executed the TIAA-CREF beneficiary designation form, changing the beneficiary from Girard to the Geha sisters. [Note 9] However, the testator declined, upon Attorney Allen's inquiry, to remove the Girard brothers as residuary beneficiaries under the will. Attorney Allen testified at trial that the testator seemed to have given thought to his decision to change the beneficiary on his TIAA-CREF account, and that although he was gaunt and appeared to be in

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periodic pain, he appeared to follow the discussion in a manner consistent with prior meetings, making regular eye contact and appropriate responses to questions. Both Stremeckus and Polk agreed with Attorney Allen's assessment.

The testator's May 12, 2005, will, executed nine days before his death, was presented for probate on June 8, 2005, by Orietta Geha and Rosenbaum, coexecutrices nominated under the will. On August 2, 2005, Girard filed an objection to the probate of the will, and, subsequently, an amended complaint in equity challenging the decedent's beneficiary designation on his TIAA-CREF account. He asserted that the testator lacked testamentary capacity at the time of execution of these documents. [Note 10] On December 7, 2005, Girard successfully secured a preliminary injunction in the equity action halting the distribution of funds from the testator's TIAA-CREF account to the designated beneficiaries. The probate matter and equity action were later consolidated.

After several days of trial during June, August, and September, 2010, the judge made more than 400 findings on the sole issue of the testator's testamentary capacity on May 12, 2005, when he executed his revised will and changed the TIAA-CREF beneficiary designation. The judge found that the testator's medical records show some "instances of confusion" in the days leading up to, and following, the execution of his will and change in beneficiary designation; however, she also found that when the testator executed his will and changed the TIAA-CREF beneficiary, he "did not have confusion caused by delirium," but, in fact, had "testamentary capacity to execute a will" and his estate plan "was not an unnatural disposition of his assets."

The judge concluded that "at the time he executed the will and the change in beneficiary to his TIAA CREF retirement plan Dr. Rosen had testamentary capacity to do so; understood the nature of his assets . . . and understood the objects of his bounty"; she reasoned that the testator "was not suffering from del[i]rium at this time to the extent that it produced any confusion which would preclude his ability to understand how he wanted to leave his estate and that he was executing estate documents." [Note 11] She also

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determined that the testator "had a long history of interest and devotion to [the Geha sisters] and provided them past financial gifts, provided advice on their educational choices, and attended school graduations" and "also enjoyed a very close relationship with the Girard brothers until the last months of his life." The judge gave weight to the testimony of Attorney Allen, and the two witnesses to the will and TIAA-CREF beneficiary change.

Discussion. 1. Testamentary capacity. It is well established that to determine testamentary capacity "[t]he critical question is whether the testator was of sound mind at the time the will was executed. It has been held that, 'a person [ . . . ] may possess testamentary capacity at any given time and lack it at all other times.'" O'Rourke v. Hunter, 446 Mass. 814, 827 (2006), quoting from Daly v. Hussey, 275 Mass. 28, 29 (1931). The proponent has the burden of proving testamentary capacity. O'Rourke v. Hunter, supra. "A presumption that the testator had the requisite testamentary capacity aids the proponent, but it disappears if the opponent presents evidence of lack of capacity." Maimonides Sch. v. Coles, 71 Mass. App. Ct. 240, 252 (2008). The requisite capacity "requires freedom from delusion which is the effect of disease or weakness and which might influence the disposition of his property. And it requires ability at the time of execution of the alleged will to comprehend the nature of the act of making a will." Paine v. Sullivan, 79 Mass. App. Ct. 811, 817 (2011), quoting from Palmer v. Palmer, 23 Mass. App. Ct. 245, 250 (1986).

With respect to the testator's testamentary capacity, there was evidence that the judge credited that on the morning the testator executed his will and TIAA-CREF beneficiary change he was bright and conversant; he asked for assistance with an outside telephone line from his room then dialed the intended number from memory; he asked Dr. Geha for the social security numbers of his daughters so that he could leave them retirement money, then later called Attorney Allen to recite the social security numbers to him to include on the beneficiary designation form; at the time of execution, Attorney Allen and both witnesses observed the testator to be alert, making eye contact during discussions and seeming to understand everything that was being said to him regarding changes that were being made to his estate per his requests.

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Girard counters by emphasizing notations in the testator's medical records indicating sporadic periods of confusion and hallucinations from which he suffered (some caused by medication), and expert testimony by a nontreating physician specializing in geriatric psychiatry. However, these arguments reveal only that there were conflicts in the evidence. Girard has "provided no basis to doubt that the judge, who was in 'a superior position to appraise and weigh the evidence,' carefully considered the conflicting evidence and assigned it the weight [she] thought appropriate." Brandao v. DoCanto, 80 Mass. App. Ct. 151, 155-156 (2011) (citation omitted). "With evidence in the record sufficient to support [the judge's] finding that the decedent was competent to execute the will and [beneficiary designation], the existence of contrary evidence did not render [her] finding unwarranted." Rempelakis v. Russell, 65 Mass. App. Ct. 557, 568 (2006).

In sum, the contestant's evidence is insufficient to defeat the presumption that the testator had the requisite testamentary capacity to execute his May 12, 2005, will and TIAA-CREF beneficiary designation form. See Maimonides Sch. v. Coles, supra at 254.

2. Tangible remainder provision. Girard also argues that the judge erred in granting partial summary judgment in favor of the coexecutrices after determining that the tangible remainder provision contained in article II of the May 12, 2005, will was a valid power of appointment. He claims that the provision creates a trust, which fails, because the language designating "one or more of my friends" does not provide for sufficiently ascertainable beneficiaries.

To begin, because the language of article II does not provide the entire class of beneficiaries, we agree with the probate judge that it is invalid as a trust. See Minot v. Attorney Gen., 189 Mass. 176, 180-181 (1905). See also Restatement (Third) of Trusts § 46 comment a (2003).

We look next to determine whether the provision creates a power of appointment. "A power of appointment is a power of disposition given to a person over property not his own by [someone] who directs the mode in which that power shall be exercised by a particular instrument." Thompson v. Pew, 214 Mass. 520, 522 (1913) (citation omitted). The power can be either general or specific, or "[a] power may be to appoint by deed or will." Ibid. However, if the power is not expressly referenced in the contested will provision, "[t]he execution of [such] power is a question of intent." Frye v. Loring, 330 Mass. 389, 394 (1953).

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"[I]n construing language in a will, '[t]he fundamental object . . . is to ascertain the testator's intention from the whole instrument, attributing due weight to all its language, considered in light of the circumstances known to the testator at the time of its execution, and to give effect to that intent unless some positive rule of law forbids.'" Hochberg v. Proctor, 441 Mass. 403, 410 (2004), quoting from Flannery v. McNamara, 432 Mass. 665, 667-668 (2000).

Here, it is clear from the language of article II that the testator intended for the executrices to make decisions as to the particular friends to whom, or charitable organizations to which, his tangible personal property would be distributed. [Note 12] The provision grants an "absolute and uncontrolled" power to the executrices to determine the intended recipients of the property, but also imposes limitations as to the recipients and the maximum amount to be received by the executrices. We agree with the probate judge that construing this language as a power of appointment "would preserve [the testator's] intent and allow the [executrices] to administer the estate in a way that is consistent with [the testator's] overall estate plan, including the other articles in the contested May 12, 2005, Will." Interpreting the language of article II in this manner effectively harmonizes the provisions of the entire instrument. See Hershman-Tcherepnin v. Tcherepnin, 452 Mass. 77, 84 (2008).

As there are no genuine issues of material fact, the judge properly granted partial summary judgment in favor of the proponents. See Mass.R.Civ.P. 56(c), as amended, 436 Mass. 1404 (2002); Ng Bros. Constr., Inc. v. Cranney, 436 Mass. 638, 643-644 (2002).

3. Attorney's fees for probate matter. Girard finally argues that the award of attorney's fees and costs to counsel for the coexecutrices should be vacated, because it is excessive. As reduced, in part, by the probate judge, the fees awarded to the counsel for the coexecutrices of the will were $140,015. We conclude that the amount of the attorney's fees in this complex case involving a four million dollar estate, a seven-day trial in the Probate and Family Court and a separate equity action were well justified

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in the probate judge's rationale. [Note 13]

A probate judge has broad discretion to determine an appropriate award of fees, costs, and expenses to an attorney for services rendered to an estate. See G. L. c. 215, §§ 39A, 45. See also Matter of the Estate of King, 455 Mass. 796, 809 (2010). The factors to be considered in such award are numerous but well established. Id. at 807. "Moreover, where fees are paid to counsel who may not have been employed by those whose estates are thus diminished they are to be awarded on strictly conservative principles." Id. at 808 (quotations and citation omitted).

As evidenced by the findings with regard to the attorney's fees, the trial judge considered the factors required in determining a fair and reasonable award of fees and costs. In addition, it is apparent from her reduction of certain fees and costs that she carefully reviewed the attorney's billing records, and proportionately allocated the award between the probate and equity matters. For this reason, we see no error and certainly no abuse of her broad discretion in the award imposed. [Note 14]

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4. Attorney's fees for appeal. The coexecutrices have filed a motion for appellate attorney's fees with a submission detailing the legal work done and the hours billed supporting the attorney's fees requested. Rather than filing a separate motion, the correct procedure is to request attorney's fees in the appellate brief. See Fabre v. Walton, 441 Mass. 9, 10 (2004) ("[W]here a party seeks an award of appellate fees, he or she must make that request in the brief").

We note that in this case, the motion fully addresses the issue of appellate fees. The coexecutrices have prevailed on appeal, and the attorney's fees will be charged against the estate. Hence, in this particular case, we deem it appropriate not to elevate form over substance, and we will, in our discretion, consider the motion as filed. "[A]n appellate court retains the authority to consider a waived request [for attorney's fees] as a matter of discretion." Beal Bank, SSB v. Eurich, 448 Mass. 9, 12 (2006).

Girard's counsel, if appellant Girard is so inclined, is granted leave to file a response to the coexecutrices' motion and submission for appellate fees. Any such response shall be filed with the clerk of this court within fourteen days of the date of the rescript. See Fabre v. Walton, supra ("[T]he opposing party will be afforded a reasonable opportunity to respond to [the] submission [for appellate attorney's fees]").

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.