RICHARD A. SACCA II v. KRISTIN M. SACCA and MICHELLE E. SACCA [Note 1]

On December 31, 2008, Plaintiff Richard A. Sacca, II (Richard) filed a petition for partition of property located at 86 Hull Street in Belmont (Locus), which is owned of record by the parties, as equal co-tenants, under a deed dated May 16, 2008 (Co-Tenancy Deed). The three parties are siblings, and all are the children of Concetta F. Oteri. [Note 2] The parties grew up living at Locus with their parents. In 2005, Concetta, who alone owned and lived at Locus, deeded Locus to her daughter Kristin, reserving a life estate. Concetta continued to live there until her death in 2008. Two days after Concetta died, Kristin executed the Co-Tenancy Deed into herself and her siblings, Richard and Michelle.

The circumstances surrounding the execution of the Co-Tenancy Deed are the focus of this action, tried before the court. Richard and Michelle claim Kristin willingly agreed to and did convey Locus to all three siblings, in exchange for Richard and Michelle paying the costs of Concetta’s funeral service and burial, and helping to finance repairs and cleaning of Locus in order to ready it for sale. Kristin denies entering into such an agreement, and alleges that she signed the Co-Tenancy Deed under duress, coercion and undue influence by her siblings.

Kristin filed an Answer on January 30, 2009, asserting twelve affirmative defenses, including that she did not sign the Co-Tenancy Deed, which she alleged was forged. [Note 3] Kristin also filed a counterclaim against Richard. Through the counts extant at trial, Kristin seeks, in Count II, equitable relief preventing Richard and Michelle from interfering with her rights as owner of Locus. In Counts III to VI, Kristin seeks rescission of the Co-Tenancy Deed, on the basis of undue influence and duress (Count III), lack of consideration (Count IV), and fraud (Count V). Kristin also filed a cross-claim against Michelle, asserting the identical claims asserted in her counterclaim against Richard.

Richard filed an Answer to Kristin’s counterclaim on February 18, 2009, asserting ten affirmative defenses. On February 20, 2009, Michelle filed an Answer to Richard’s petition for partition, in which she admits that she and her siblings own Locus as tenants-in-common, and agreeing that Locus should be partitioned according to law. On the same date, Michelle filed an Answer to Kristin’s cross-claim, asserting twelve affirmative defenses, as well as an eight-count cross-claim against Kristin. In her cross-claim, Michelle alleges breach of a tenancy-in-common agreement (Count I), breach of fiduciary duty (Count II), detrimental reliance (Count III), malicious abuse of process (Count IV), unjust enrichment (Count V), accounting (Count VI), deceit (Count VII), and reimbursement (Count VIII). Kristin filed an Answer to Michelle’s cross-claim on March 9, 2009, asserting seventeen affirmative defenses. By the time the pleadings had closed, it was clear that Richard and Michelle were of the same mind with respect to this partition action, even though Richard is the only Plaintiff and Michelle (along with Kristin) is a named Defendant. Both Richard and Michelle favor partition and oppose Kristin’s position that she alone should be declared the rightful owner of Locus.

At a pre-trial conference held on July 3, 2014, the parties agreed to bi-furcate the trial, with the first part addressing the issue of Kristin’s signature on the Co-Tenancy Deed, in the context of whether the Co-Tenancy Deed should be deemed void or voidable on the basis of events Kristin alleges led to its signing. It was agreed that if the Co-Tenancy Deed is deemed valid, the partition count would proceed. At the same pre-trial conference, the parties also stipulated that Kristin’s allegation that her signature on the Co-Tenancy Deed was a forgery was withdrawn, and that the authenticity of her signature was no longer an issue, leaving for trial the broad question of whether Kristen willingly signed the Co-Tenancy Deed. [Note 4]

A three-day trial was held on October 29, 30 and 31, 2014. The court heard testimony from Michelle, Richard, and Kristin. The court also heard testimony from Marcia Lewin-Berlin, a hospice social worker who helped care for Concetta within the last month of her life, and James Oteri, Concetta’s younger brother and the parties’ uncle. The testimony of the three siblings was detailed and specific, with the testimony of Kristen very much at odds with that of her siblings in terms who said what to whom and the dates and times of conversations and events during the days leading up to the death of Concetta, and the circumstances surrounding Kristen’s execution of the Co-Tenancy Deed. In many respects the court was unable to resolve the discrepancies relating to the minutia of the conversations among the siblings and the precise time frames in which they allegedly took place. This court is able, however, to find the facts necessary to decide the counterclaims and cross-claims that were the focus of the trial. As set forth below, the court finds and rules that the Co-Tenancy Deed must be set aside, as the circumstances surrounding its execution by Kristen, as grantor, reflect that at the time of execution, she felt without an option other than signing over two-thirds of her interest in Locus to her siblings in order to insure that her mother’s funeral proceeded and she was buried in accordance with her express wishes.

This court further finds that with respect to the counterclaims and cross-claims of Michelle and Richard, there was not an agreement among the siblings for Kristen to convey her interest in Locus to the three siblings as tenants-in-common. The court finds, however, that Kristen and Michelle agreed with one another that Michelle, who paid for expenses relating to the funeral and burial, would be reimbursed by Kristen for the expenses from the proceeds of selling Locus. This court’s conclusions on the law are based on the parties’ stipulations, some of which are set forth below, assessment of the credibility of the witnesses, exhibits entered at trial, and the reasonable inferences drawn from all the evidence, as set forth below:

1. Richard, Michelle, and Kristin are siblings; the adult children of Concetta F. Oteri (Concetta or Connie).

2. Richard, born February 27, 1965, is the oldest; Michelle, born March 25, 1966, is the middle sibling; and Kristin, born March 26, 1971, is the youngest sibling. The three siblings grew up in the family home located at Locus.

3. Throughout their childhoods, Connie neglected and physically, verbally and emotionally abused the three siblings.

4. Michelle had no personal relationship with Connie and no contact with her for the fifteen years preceding Connie’s death in 2008. At times relevant to this case, Michelle lived in Arlington, Massachusetts. Richard had limited contact with Connie, visiting from Japan (where he is stationed as a Marine) approximately every two years to maintain his United States residency, and occasionally calling Connie. Richard last saw her in person in 2006, at Locus, which at the time he found in “deplorable” condition. Kristin, who lives in Watertown, Massachusetts, was the only sibling with an active relationship with Connie.

5. In April 2005, Connie was diagnosed with colon cancer. Kristin was present with Connie when she received the diagnosis. Kristin described her relationship with her mother as “very close.” During the last few years of Connie’s life, she and Kristin fought and had disagreements primarily regarding Connie’s medical care. During these years, Kristin spent time, including time away from her job, attending to Connie’s medical care, affecting Kristin’s work schedule.

6. Kristin contacted Michelle on an undetermined date after April 2005, to inform her of Connie’s diagnosis. Sometime after that, on another undetermined date, Kristin again contacted Michelle to provide more details about Connie’s illness, but the sisters also talked about other unrelated matters, such as what was happening in each of their lives.. The two communicated “periodically” by telephone and email during the three years of Connie’s illness.

7. On September 22, 2005, Connie deeded Locus to Kristin, reserving a life estate. The deed is recorded on the same day with the Middlesex Registry of Deeds in Book 46132, at Page 270.

8. During Connie’s three-year illness, Kristin assisted her with various tasks, including bringing her to medical appointments, providing food, and offering emotional support and some financial support.

9. Marcia Lewin-Berlin, a licensed Partners Hospice social worker, was assigned to Connie and provided services to her for approximately three to four weeks before Connie’s death. Ms. Lewin-Berlin assisted Connie with MassHealth coverage, food and medicine, funeral planning and arrangements, and emotional support, as Connie was unable to adequately take care of herself during this time period. When discussing funeral arrangements, Connie adamantly stated to Ms. Lewin-Berlin that she wished to be buried, not cremated. This expression of Connie’s preference was consistent with what she had told Kristin regarding burial.

10. During the last month of Connie’s life, Ms. Lewin-Berlin met with Kristin in person approximately three times and communicated with her over the phone frequently to discuss her mother’s care. Ms. Lewin-Berlin felt Kristin was very anxious and overwhelmed during this time period, and required a lot of guidance and emotional support, which Ms. Lewin-Berlin tried to provide. Kristin required frequent communication and direction from her because Kristin “wasn’t really that competent,” and the situation was “really hard for her.” Kristin needed Ms. Lewin-Berlin to provide “baby [steps]” in order for tasks to be completed.”

11. In response to Kristin’s questions and concerns, Ms. Lewin-Berlin provided her with information on funeral and burial options, and specifically information about MassHealth’s coverage of burial services. After receiving information from Ms. Lewin-Berlin, Kristin mistakenly believed that Brasco & Sons Funeral Home offered a funeral service for $1,500, and that a cemetery in Jamaica Plain offered plots for indigent persons. Kristin later came to understand through further conversation with Ms. Lewin-Berlin that the $1,500 MassHealth benefit covered only a simple cremation service, which was not what Kristin wanted for Connie.

The Days Leading Up To Execution of The Co-Tenancy Deed

May 12, 2008

12. Kristin called Michelle at or around 8:35 PM on Monday, May 12, 2008, to tell her Connie had been admitted to Massachusetts General Hospital (MGH) and was close to death. [Note 5] During this phone call, Michelle asked if Kristin “minded” if she came to the hospital to support Kristin. Kristin responded that she did not mind. [Note 6]

13. After learning of Connie’s hospitalization, Michelle emailed Richard to notify him of Connie’s condition. After receiving the email, Richard called Michelle on or around 11:00 PM that same day. Richard decided to fly home from Japan to see Connie before she died.

14. After speaking with Michelle, Richard emailed Kristin to notify her that he was planning to come to Boston. Richard wrote that “Michelle and [I] agreed that our only purpose was to support you in whatever capacity you need. Basically we are at your disposal to assist in, or butt out of, any area you need or wants us in.” Richard also wrote “[i]t has been clear that you have shouldered all of the responsibility for caring for mom for all these years so you know best. We do not want to dump anything on you, just support you. You can count on us to ‘run interference’ with any of the relatives that are disruptive to you.”

15. After reading this email, Kristin felt comforted and validated by Michelle and Richard’s response. Kristin felt relieved to have their support, as it meant she “didn’t have to go it alone.” Richard emailed Kristin a second time twenty hours after his first email to alert her that he was leaving Japan within minutes and expected to arrive in Boston in approximately twenty-four hours.

May 13, 2008 - Tuesday

16. On May 13, 2008, Michelle visited with Kristin at MGH on two separate occasions.

a. At the time of her first visit to the hospital, Michelle was not aware that Connie had deeded Locus to Kristin. Michelle believed Locus was in Connie’s name, and assumed the three siblings would share equally in Locus and the proceeds from its sale, either through Connie’s will, or as her heirs. Michelle first visited at approximately 12:00 PM. During this visit, Michelle observed her mother in her hospital room through the door, but did not speak to or visit with her. Michelle visited only to provide support to Kristin. [Note 7] Michelle and Kristin discussed Connie’s burial arrangements. Kristin, still operating under her misunderstanding of the information provided to her by Ms. Lewin-Berlin, described the funeral arrangements provided by Brasco & Sons that she thought she could afford. Kristin expressed concerns over her ability to pay for a funeral service.

b. Kristin also expressed concern that Locus might have fallen into foreclosure. Michelle, who was a real estate paralegal at the time, offered to research public records at the Middlesex Registry of Deeds to determine the status of Locus. Kristin asked Michelle to contact Richard to update him on Connie’s condition and Michelle agreed to do so.

c. Michelle also promised to contact cemeteries to determine availability of burial plots, including Grove Street Cemetery, in which Connie’s parents were interred, and to contact Brasco & Sons to inquire about funeral arrangements.

17. After the first hospital visit, Michelle emailed Kristin on May 13, 2008, at 3:55 PM. Michelle referred to the email as her “homework assignment,” and provided information on two cemeteries in which Connie could possibly be interred. In the email, Michelle wrote that she left a message for Grove Street Cemetery and was waiting to hear from them, and also attached an informational brochure for Highland Meadows Cemetery.

18. Michelle returned to the hospital later in the evening, with her husband, James Foley (James). Kristin’s fiancé, Ara Mitchell (Ara), was there with Kristin. During the second hospital visit, Michelle updated Kristin on the tasks she had completed.

19. While researching whether Locus was in foreclosure, Michelle discovered the deed conveying Locus from Connie to Kristin, with a life estate reserved to Connie. Kristin and Michelle discussed the ownership of Locus while at the hospital, with Kristin confirming that she knew Connie had “[given her] the house.” Michelle understood at that time that as soon as Connie died, the reservation of her life estate would cease and Kristin would own Locus outright. Until finding the deed into Kristen on May 13th, Michelle did not know Connie had conveyed Locus to Kristin. At this point Richard had no knowledge of the deed into Kristin. The sisters had some conversation about “fixing” the situation, whereby Kristin would reconvey Locus to the three siblings.

20. Michelle and Kristin did not enter into an explicit agreement regarding ownership of Locus when meeting at the hospital that evening. [Note 8] Kristin remained at the hospital after Michelle left.

May 14, 2008 - Wednesday

21. Kristin was present when Connie died at 12:21 AM. on May 14, 2008. Kristin called her fiancé and family and friends to notify them. When Kristin called Michelle, Michelle offered to contact Brasco & Sons Memorial Chapels, Inc. (Brasco). Kristin accepted the offer.

22. When discussing funeral arrangements with Kristin, Michelle had expressed skepticism when told there was a $1,500 funeral service benefit through MassHealth and burial was a possibility. Kristin panicked because she could not afford more than $1,500, but Michelle reassured her that she was “here to help” and “would figure it out.” The date and time of this conversation is unclear, but it occurred at some point before the three siblings met with the Brasco funeral director on the evening of May 14, 2008.

23. Kristin was very upset after Connie died, and stayed at the hospital for approximately two hours until she felt composed enough to drive home. That night, Kristin did not sleep well and spent the night alternating between crying and attempting to sleep.

24. Later that morning, Kristin emailed Richard that Connie had died.

25. Sometime early in the day, Michelle made an appointment for the three siblings to meet with Paul Brasco at 5:00 PM.

26. Richard’s plane was scheduled to land at Logan Airport at 3:05 PM. Michelle’s husband, James, picked Richard, his wife and infant daughter up at the airport, at which time James informed Richard that his mother had already died that morning. After arriving at Michelle’s house in Arlington, Michelle and Richard went to two nearby stores to purchase baby formula, dropped it off at Michelle’s house, and left for Kristin’s house. [Note 9]

27. At 4:55 PM, Kristin called Michelle to remind her about the meeting at the funeral home because she was worried they would be late. The exact time they arrived at Kristin’s is unknown, but all parties agree they arrived after 5:00 PM. After arriving at Kristin’s house, Michelle and Richard exited the car and briefly sat with Kristin outside on her deck. [Note 10]

28. Richard initiated a conversation about funeral expenses. He wanted to establish a proposed budget before meeting with the funeral director. Richard had recently had an experience with a funeral in Japan for his father-in-law that was quite expensive and he was extremely concerned about the price of a funeral in the United States. Prior to leaving Japan, Richard had exchanged money at the airport into American dollars and offered up to $10,000 to cover funeral expenses, if needed.

29. During this conversation, Michelle asked Kristin a question about a deed, referencing a prior conversation that she had with Kristin. At that point, listening to his sisters’ conversation, Richard believed that Locus was in Kristin’s name for reasons that related to protecting Locus from lienholders in connection with Connie’s future healthcare. He understood that sometime prior to his arrival in the country Michelle had asked Kristin to prepare some sort of paperwork to “fix” the situation. Until that point, Richard had expected Locus to pass as part of Connie’s estate to the three children equally, or, more likely, to him directly “as the oldest child and only son.”

30. Richard’s understanding about the precise goal of preparing the paperwork his sisters had discussed was limited, based on what he gleaned from the back and forth conversation between his sisters which, he testified, “seemed like they had already formulated [that] plan.” [Note 11]

31. Kristin showed Michelle a copy of the deed into Kristin, and Michelle explained how to redraft it, conveying Locus to all three siblings. Michelle made notations and markings on the deed of the proposed changes. Kristin appeared to agree to type the new deed based on Michelle’s notations. Either Kristin or Michelle explained to Richard that the redrafted deed would convey Locus to all three siblings.

32. During this meeting, the siblings discussed the deterioration of Locus and actions needed to clean and restore it to a marketable state.

a. Richard never told Kristin that he would only front expenses for the funeral service if she deeded Locus to all three siblings. Richard also did not recall Michelle stating that position.. Richard believed at the time that the house was in such poor condition that any proceeds from its sale most likely would not cover funeral and other expenses (i.e. past due bills). In 2008, the assessed value of Locus was $399,000.00.

b. At the conclusion of this meeting, the three siblings had not finalized an express agreement regarding the sale of Locus. [Note 12]

33. Once their discussion was over, the three siblings drove to the funeral home in Michelle’s car, approximately a few minutes drive. At the funeral home, the siblings met with Paul Brasco to plan Connie’s funeral service and burial. Michelle used her credit card to pay a deposit, and ultimately paid for the following services: $6,072.00 for funeral home services, $850.00 for a grave liner, and $4,000.00 for a cemetery plot. In total, she paid $10,922.00. These expenses were much higher than Kristin had anticipated.

34. Following the meeting at Brasco’s, the siblings went to Locus, where they walked around the property and the house itself. They divided pictures, went through their individual “baby books,” and checked on Connie’s cat. Richard and Michelle dropped Kristin off at her home and returned to Michelle’s house. [Note 13]

May 15, 2008 – Thursday

35. On the morning of May 15, 2008, Michelle and Richard picked Kristin and Ara up at Kristin’s house and drove to the cemetery in order to select a burial plot. While in the car, Richard asked Kristin for a copy of Connie’s will. Kristin responded that she had not been able to make a copy of the will. Michelle also asked whether Kristin had any trouble redrafting the deed. Kristin said she typed it but could not print it because of a problem with her printer, and said she would email it to Michelle later in the day, which she did not do.

36. At the cemetery, Michelle completed the paperwork required to buy a burial plot. Michelle paid for the burial plot and put ownership of the plot in Kristin’s name, with Kristin’s agreement. After leaving the cemetery, Richard, Michelle and Kristin returned to Michelle’s house. Michelle and Kristin then went shopping for burial clothes for Connie, purchased by Kristin, and dropped the clothing off at the funeral home.

May 16, 2008 - Friday

37. Connie’s funeral service was scheduled for 9:00 AM on May 16, 2008.

38. Just hours before, at 2:13 AM, Michelle left Kristin a voicemail, stating “Kristin, it’s Michelle. I’m sorry to call you so late. There is a document that has come to light that the three of us absolutely have to discuss, and I’ve already talked to the funeral director and we are going to meet at the funeral home at eight o’clock. So I’m requesting that you please be there at 8:00 instead of 8:30. Thank you. Bye.”

39. At the time she left the telephone message for Kristin, Michelle was feeling “rage” and “hurt,” and she needed “assurances for the deal [she had] made.” She had been reflecting on the events since receiving news Connie had been admitted to MGH, and felt Kristin was taking advantage of her. Michelle had not received a copy of the redrafted deed, which Kristin had promised to email to her. Michelle felt she was being used by Kristin for money, because Kristin had not followed through on steps she had agreed to do, while Michelle had “jump[ed] through hoops” to take care of many things despite her lack of relationship with Connie.

40. After leaving the voicemail, Michelle typed the Co-Tenancy Deed from Kristin to Kristin, Richard and Michelle. She also wrote down notes about her feelings in a document she titled “There Will Be No Funeral” (referred to by the parties as the “No Funeral Letter”).

41. Richard, Michelle and Kristin had agreed to meet at 8:30 AM at the funeral home. Consistent with the voicemail message Michelle had left Kristin, she told Richard they needed to arrive earlier than planned because she wanted to talk to him and Kristin.

42. Kristin woke up after 8:00 AM and was running late. Since the passing of her mother, Kristin was not sleeping well and was operating on only a few hours of sleep each night. Kristin was also up crying at various points throughout the night. While driving to the funeral home, she listened to the voicemail left by Michelle, retrieving it at 8:39 AM. Kristin called Michelle at 8:41 AM, and Michelle told her “Just get here.”

43. Michelle and Richard were already at the funeral home when Kristin arrived. Michelle stated that she needed to talk to her siblings and the three sat at a table in an empty room, away from the room in which Connie’s service would take place. [Note 14] The room had an open doorway/entryway and was not closed off. Although people were gathering in the funeral home for the service, no one else was present in the room. Michelle announced to her siblings she wanted to speak without interruption.

44. Michelle began by asking Kristin if she had redrafted the deed. Kristin replied that she had forgotten to bring it.

45. Michelle explained that she “felt like she was being used,” and that she felt Richard and Kristin were misleading her into believing they wanted to rebuild their relationship moving forward in order to take advantage of her money. Michelle specifically stated she felt Kristin was lying to her and perpetuating a scam in which she used Michelle for her money.

a. Michelle referred to notes she had brought with her to remind her of things she wanted to say, tightly holding the papers in her hands. Richard observed that Michelle’s hands shook (he thought due to a known medical condition), she teared up, but did not cry, and sounded emotional but was not speaking in a “negative manner.” Everyone remained seated at the table for the duration of the conversation. No one spoke with a raised voice.

b. Kristin observed that Michelle’s hands were “really gripping” the paper, and that, although Michelle did not raise her voice, Kristin felt Michelle was “very angry.” She read for several minutes. At some point Richard made a gesture to Michelle that she interpreted as a “hurry up,” which she believed was due to his aversion to discussing emotions. Kristin interpreted this gesture, as well as Richard nodding gestures to mean that Richard agreed with what Michelle was saying.

46. Kristin could not see the paper or papers from which Michelle initially was reading but it likely was not the “No Funeral Letter.” At some point Michelle either pulled out the “No Funeral Letter” or another piece of paper that was substantively its equivalent and read various portions of it, including “I will stop today’s proceedings, there will be no service, there will be no viewing, there will be no burial. . . I will take care of things my way. She will be cremated and I will give you the ashes in an urn.” Richard did not see the “No Funeral Letter” prior to Kristin signing the deed. Kristin described herself as horrified and, throughout Michelle’s speaking and reading, Kristin believed that it was possible for Michelle to stop the funeral and have Connie cremated.

47. At some point, Michelle gave Kristin the redrafted deed Michelle had prepared, stating if Kristin was sincere, she would sign it. Kristin denied attempting to take advantage of Michelle for her money, and signed the Co-Tenancy Deed. Kristin did not read it before signing it.

48. Kristin signed what was put in front of her in order to end what she perceived as a tense and threatening situation, and felt she had no choice but to sign it, as the funeral home was filling with people expecting the funeral to begin. Kristin felt that in order for it to proceed and for Connie to be buried, she needed to sign the document.

49. As Kristin was signing, or just after, Richard noticed the $100 amount listed as consideration on the Co-Tenancy Deed, and offered $100 in cash to cover that requirement. Michelle told him it was only a formality, and he instead said the $100 could go toward the recording costs.

50. After Kristin signed the Co-Tenancy Deed, she and Michelle stepped outside to smoke cigarettes. While smoking, Michelle read, perhaps for the first time, the No Funeral Letter to Kristin.

51. At some point, Michelle signed the Co-Tenancy Deed as notary. Michelle did not ask Kristin for her driver’s license or identification, nor did she ask her if signing the deed was her true and voluntary act prior to signing as notary. [Note 15]

Events Following The Execution of The Co-Tenancy Deed

52. The funeral service proceeded. After the service, the three siblings went to the cemetery for Connie’s burial (which was a public burial). They made plans to meet at Locus later in the afternoon. [Note 16] Michelle, Richard and James went to Locus to wait for Kristin. Kristin never arrived. Michelle called her, but did not leave a voicemail. After the burial, Kristin had gone to her aunt and uncle’s house, where a reception was being held following the funeral.

53. At approximately 4:30 PM, Kristin went to Locus to take care of Connie’s cat. She noticed the door was open and called the Belmont Police Department to report a burglary. Kristin reported to the responding officers that she believed Richard and Michelle had broken into the home immediately following her mother’s funeral service. Kristin also stated that she had been “virtually coerced by Richard and Michelle to sign a shared deed to the property, which . . . she signed under duress.”

54. At some point between May 17-18, 2015, Kristin left Michelle a voicemail in which she accused Michelle of stealing Connie’s cat and later returning it to Locus. Kristin sounded “hysterical” and used profanity, according to Michelle.

May 18, 2008 – Sunday

55. On Sunday, May 18, 2008, Kristin, after first going to an urgent care facility, went to the emergency room at Faulkner Hospital. She was diagnosed as suffering a “grief reaction” or a “panic attack.”

May 20, 2008 – Tuesday

56. On the morning of May 20, 2008, Richard and James went to Locus intending to begin cleaning out the house. Richard brought a copy of the Co-Tenancy Deed with him in his bag. Both men were arrested at Locus for daytime breaking and entering, after neighbors called the Belmont Police Department. [Note 17]

57. On or around 1:20 PM on May 20, 2008, Michelle called Kristin and left a voicemail in which she stated that Richard had been arrested and asked Kristin to please call her so they could discuss it. Kristin also spoke with police. She gave them copies of the “No Funeral Letter,” her mother’s will, and the deed naming her as sole owner of Locus.

58. On or around May 21, 2008, Michelle recorded the Co-Tenancy Deed dated May 16, 2008, with the Middlesex South District Registry of Deeds, in Book 51202, at Page 184. She paid for the recording fee, in part, with the $100.00 Richard provided on May 16, 2008.

59. On June 9, 2008, Kristin and her attorney met with Sergeant Kim Hurley of the Belmont Police Department to report alleged criminal activity of Michelle. The police report states the following: “Kristin said she signed a one page document[.] It was not the two-page deed that now exists which was filed on May 21, 2008 at the Registry of Deeds in Cambridge, MA. Kristin said the document she signed did not have Northerly, Easterly, Southerly or Westerly written on it . . . . Kristin said [page two] of the document that was filed with the Registry of Deeds has a fake signature above her typed name because she did not sign the document and it does not look like her signature.”

60. On September 10, 2008, Kristin gave exemplars of her signature and initials to the Belmont Police Department to be given to a handwriting expert for analysis. Kristin provided the fee for this analysis.

* * * * * *

I. Duress

A deed procured by fraud, duress, or undue influence is voidable. Wojtkonski v. Wojtkonski, 331 Mass. 760 (1954); Neill v. Brackett, 234 Mass. 367 (1920). Here, Kristin seeks to invalidate the Co-Tenancy Deed, claiming she signed it under duress minutes before her mother’s funeral was scheduled to start. She alleges that Michelle threatened to cancel payment for funeral expenses, among other things, unless she conveyed Locus to all three siblings. A party who enters into a contract “under the influence of such fear as precludes him from exercising free will and judgment” may avoid the contract on the grounds of duress. Coveney v. President & Trustees of the College of the Holy Cross, 388 Mass. 16 , 22 (1983), quoting Avallone v. Elizabeth Arden Sales Corp., 344 Mass. 556 , 561(1962). Kristin urges the court to relieve her of the consequences of deeding Locus to herself and her siblings, and to restore her sole ownership.

Duress or undue influence is “any species of coercion, whether physical, mental or moral, which subverts the sound judgment and genuine desire of [another].” Neill, 234 Mass at 369. It includes improper threats which preclude an individual from exercising free will and judgment. Avallone, 344 Mass. at 561. Threats rise to the level of duress if what is threatened is a crime or tort, such as physical violence or theft; a criminal prosecution of the signing party; or the use of civil process, initiated in bad faith. Restatement 2d, Contracts, § 176(1)(a) – (c). “Coercion sufficient to avoid a contract need not, of course, consist of physical force or threats of it. Social or economic pressure illegally or immorally applied may be sufficient.” Int’l Underwater Contractors, Inc. v. New England Tel. & Tel. Co., 8 Mass. App. Ct. 340 , 342 (1979).

Prior to meeting with her siblings at the funeral home before Connie’s service, Michelle compiled a list of actions she would take if Kristin did not agree to convey her interest in Locus to the three siblings. Referred to as the “No Funeral Letter,” it lists eight actions that Michelle states she was thinking about taking if Kristin did not execute the Co-Tenancy Deed. The meeting at the funeral home began with Michelle talking about her general feelings: she was upset with Kristen and thought Kristen was taking advantage of her. Michelle testified that she did not read the No Funeral Letter aloud prior to presenting Kristin with the deed to sign, but was reading from another piece of paper that had her notes on it. Neither Richard nor Kristin could actually see what Michelle was reading from, but Kristin alleges Michelle read the No Funeral Letter aloud, in its entirety. While maintaining that Michelle did not read the letter aloud in its entirety, both Michelle and Richard testified that Michelle read from a piece of paper that included an accusation that Kristin lied to Michelle (Item #2 in the Letter), and that Michelle would stop payments on any checks or credit payments for the funeral service (Items #3 and 4 of the Letter). The court finds that Michelle may not have been reading directly from the No Funeral Letter during this conversation, but there was significant overlap between what she was reading from and the content of the No Funeral Letter, which she did read to Kristin at some point.

Although Michelle may not have read the entirety of the No Funeral Letter, Michelle’s presentation was clearly upsetting and threatening to Kristin. A finding of duress is inherently fact-specific. Difficult, even painful circumstances don’t necessarily constitute duress. See Bilouris v. Bilouris, 67 Mass. App. Ct. 149 , 155 (holding that wife’s signing of prenuptial agreement one week before the scheduled wedding while pregnant and of limited financial means did not constitute duress); Delaney v. Chief of Police of Wareham, 27 Mass. App. Ct. 398 , 407 (1989) (holding that an “indication that a party intends to pursue lawful legal proceedings if the other party fails to accept a pending settlement offer does not, normally, constitute duress,” and further stating that, although a party’s emotional or drug, alcohol or marital problems may make him susceptible to duress, it does not constitute duress without a wrongful threat or act); Young v. Paquette, 341 Mass. 67 , 315 (1960) (stating that a conveyance made reluctantly does not automatically constitute duress or coercion).

However, as noted above, mental or moral coercion can rise to the level of duress if it subverts the judgment and desire of another person. Neill, 234 Mass at 369. This court has found that Kristin genuinely believed that her mother’s funeral could be stopped if Michelle decided to withdraw her payments for services. [Note 18] She was confronted by her older siblings, who had provided support and protection, not just in the days preceding their mother’s passing, but also during their difficult upbringing. Kristin was alone during this meeting, with Michelle and Richard on either side of her at the table, with no counsel or other advocate by her side. Michelle was angry and accusatory and threatened to cancel the funeral and burial. Despite the difficulties of her childhood, and unlike her siblings, Kristin had maintained some type of relationship with her mother and was her primary caregiver in the months before her death. She had been overwhelmed by the responsibility of Connie’s health issues and was exhausted by the stress of the last few days of Connie’s life and her death.

The court finds these circumstances, coupled with the timing of presentation of the Co-Tenancy Deed minutes before the funeral was starting, constitute duress and overcame Kristin’s independent judgment and reasoning. She signed the Co-Tenancy Deed to move past the threatening moment and let the funeral and burial proceed. Kristin’s actions in the days that followed make clear that she had not thought through the ramifications of signing the Co-Tenancy Deed. This lack of plan is consistent with this court’s view that Kristin simply felt cornered at the funeral home and was not thinking clearly enough to come up with another way to insure the funeral and burial would go forward other than to sign the deed. She quickly tried to distance herself from when she accused her brother and brother-in-law of breaking into Locus, told the Belmont police that she had been forced to sign the deed, then alleged that Michelle had forged Kristin’s signature.

II. Undue Influence

A party who signs a legal document, such as a deed, is presumed to be fully aware of its terms unless it is proven that he or she was induced to sign said document by means of undue influence. Bruno v. Bruno, 10 Mass. App. Ct. 918 , 918 (1980). Undue influence involves “some form of compulsion which coerces a person into doing something the person does not want to do.” Tetreault v. Mahoney, 425 Mass. 456 , 464 (1997). The burden of establishing undue influence falls on the party challenging the validity of the transaction. Howe v. Palmer, 80 Mass. App. Ct. 736 , 740 (2011). A finding of undue influence rests largely on “circumstantial evidence, since direct evidence . . . is often difficult to establish.” Miles v. Caples, 362 Mass. 107 , 112 (1972). Suspicion or conjecture is insufficient: undue influence requires a “solid foundation of established facts on which to rest an inference of its existence.” Neill, 234 Mass. at 370.

The challenging party must prove four elements: 1) an unnatural disposition has been made 2) by a person susceptible to undue influence to the advantage of someone 3) with an opportunity to exercise undue influence and 4) who in fact has used that opportunity to procure the contested disposition through improper means. O’Rourke v. Hunter, 446 Mass. 814 , 828 (2006); Howe, 80 Mass. App. Ct. at 740; Hernon v. Hernon, 74 Mass. App. Ct. 492 , 497 (2009). Undue influence is a question of fact, “depending upon the credibility of witnesses and the weighing of evidence.” Cooperman v. Turner, 303 Mass. 448 , 449 (1939). Ultimately, the court finds that Kristin failed to sufficiently prove all elements required for undue influence.

Unnatural Disposition

An unnatural disposition is one that an individual would not make absent undue influence. Kristen alleges she would not have conveyed Locus to her siblings as tenants-in-common absent undue influence from Michelle and Richard. Based on the testimony describing the relationships among the three siblings, the court does not conclude that such a conveyance by Kristin would have constituted an unnatural disposition. All three siblings testified they had little contact with each other over the years. Richard, living in Japan, visited every two years, and made an effort to see each of his sisters during his trips. Kristin and Michelle maintained periodic contact through email and telephone calls in the three years prior to Connie’s death. Although this communication did not rise to the level of a close relationship, they would share information about their lives. Michelle provided a familial ear and advised Kristin on how to manage her relationship with Connie and extended family members.

Kristin acknowledged that Michelle’s request to visit and subsequent visits to MGH during Connie’s final days made her feel “good.” Richard’s email, in which he explained that he and Michelle were there to support Kristin, was “comforting” and “validating.” Kristin testified many times that she was worried about the cost of Connie’s funeral service, and could not afford more than $1,500 in expenses. With her brother and sister offering help and support, Kristin testified she was “relieved,” because they were “going to help me and [she] didn’t have to go it alone any longer.” It is plausible that a younger sister might convey the family home to all three siblings equally, especially in exchange for or in appreciation of financial or emotional support. Also, Kristin had testified, although with little detail, that the original transfer of Locus from Connie to her was for the purpose of protecting Locus from lienholders in connection with Connie’s future medical care. Kristin never asserted that Connie wanted Kristin to be the only person inheriting Locus. The court finds that Kristin’s conveyance of Locus to Michelle, Richard and herself equally is not so unnatural or illogical so as to constitute and unnatural disposition.

Susceptibility to Undue Influence

In determining susceptibility to undue influence, the court considers the following factors: cognition, decision-making skills and whether an individual is isolated from others who may deter or thwart someone seeking advantage. Hernon, 74 Mass. App. Ct. at 498. Kristin alleges that, at the time she conveyed Locus to herself and her siblings, she was overcome with grief and unable to think objectively due to her mother’s death and imminent start of the funeral service. While the court has found Kristin signed the Co-Tenancy Deed under duress, this court does not also find that Kristin was susceptible to undue influence as that term is defined in the case law.

Testimony at trial painted the picture of Kristin as a younger sister grateful for the support and guidance of her older siblings at times when she needed both and willing to concede to their wishes or unable to withstand their pressure. Michelle and Richard depicted a family dynamic in which they sought to protect Kristin, the youngest sibling, from physical and emotional abuse. For example, after Michelle alerted him that Kristin’s living situation with Connie had deteriorated, Richard arranged for Kristin to live with him and his fiancé in Hawaii and Kristin finished her final year of high school under his legal guardianship. [Note 19] Tr. vol. II. 191: 6-24. While it is not inconceivable that Kristin may have felt obligated to concede to the demands of older siblings she respected and looked up to, her actions leading up to the signing of the Co-Tenancy Deed indicate she was able to exert her own opinion and will if she so chose, even if her opinion was in direct disagreement with her siblings. Kristin wanted Connie to be buried, rather than cremated, in accordance with Connie’s wishes, whereas Michelle preferred cremation.. Kristin also expressed her desire to change the private burial at the cemetery to a public burial so that Connie’s extended family could attend, against Michelle’s and Richard’s strong desire for a private burial.. She succeeded in asserting herself on both.

Kristin was also able to undertake certain tasks and complete them successfully after her mother’s passing. Kristin presented testimony from Ms. Lewin-Berlin in which she described Kristin as overwhelmed and unable to complete basic tasks without guidance and direction. However, Kristin was not incompetent: for example, she accompanied her mother to medical appointments and completed a loan application to cover expenses for both her and her mother. Following Connie’s death, Kristin was able to notify family members, including Michelle, and remembered to care for her mother’s cat. She arranged for a funeral reception to take place following Connie’s burial, hosted by Kristin’s aunt. She purchased a burial outfit for Connie, accompanied by Michelle. These actions do not undermine or minimize the exhaustion and distress Kristin felt at Connie’s death but they demonstrate that she was not so overcome that she was unable to function normally under the circumstances. The court concludes that Kristin was not a person susceptible to undue influence such as one who is incapable due to mental or physical illness or dementia. See Campbell v. Lima, 212 Mass. 11 , 13 (1912) (taking into consideration a decedent’s age, physical and mental health, and level of dependence on others when determining undue influence); In re Estate of Sharis, 83 Mass. App. Ct. 839 , 844 (2013) (holding advanced age, lack of familiarity with wills and a low level of education as factors indicative of undue influence). It was more the timing and substance of Michelle’s presentation moments before the funeral service that caused this court to conclude that there had been duress, as opposed to Kristin’s general susceptibility to undue influence.

III. Economic Duress

Kristin also claims that the Deed was signed under economic duress. A party may establish economic duress by demonstrating that it involuntarily accepted the terms of an opposing party, under circumstances in which there was no alternative, and the circumstances were the product of coercive acts by the other party. Cabot Corp. v. Avx. Corp. et al., 448 Mass. 629 , 637-638 (2007), citing Int’l Underwater Contractors Inc., 8 Mass. App. Ct. at 342. A victim “must go beyond the mere showing of a reluctance to accept [and] financial embarrassment” and show that acts of the other party produced these factors. 28 S.Williston, Contracts § 71:7 at 449 (4th ed. 2003). Thus, “[i]n order to substantiate the allegation of economic duress or business compulsion . . . [t]here must be a showing of acts on the part of the defendant which produced [the financial embarrassment]. The assertion of duress must be proved by evidence that the duress resulted from defendant's wrongful and oppressive conduct and not by plaintiff's necessities.” Int’l Underwater Contrs., 8 Mass. App. at 342. Merely taking advantage of another's financial difficulty is not duress.

The Court finds that, in this case, any economic coercion under which Kristin labored was not caused by Michelle or Richard. Kristin’s economic hardship did not result from any harmful conduct by her siblings. Instead, it appears she felt pressure due to her own limited financial means. While Kristin may have felt she had no bargaining power, a weaker bargaining position does not support the finding of economic duress.

Waiver

Michelle and Richard argue, alternatively, that the Deed must be considered valid because Kristin failed to take steps to disavow it within a reasonable time. Since signing the Deed on May 14, 2008, Kristin has given conflicting explanations for her actions, first alleging to the Belmont Police Department that she was forced to sign the Co-Tenancy Deed, later claiming she never signed the Co-Tenancy Deed and any signature was forged. By the commencement of trial, Kristin had dropped her claims of forgery and stipulated that she did indeed sign it, although she claimed she did not understand the document was a deed. Kristin did not formally challenge the validity of the Co-Tenancy Deed until she responded to this partition action. In order to have an agreement set aside for duress, the complaining party must act promptly or risk ratifying it. Beaconsfield Townhouse Condo. Trust v. Zussman, 49 Mass. App. Ct. 757 , 763 (2000). “To repudiate an agreement on the ground that it had been made under duress, a party must complain promptly of the coercive statements that it claims had forced it into the contract.” Ford v. Ret. Bd. of Lawrence, 315 Mass. 492 , 496 (1944). In re Boston Shipyard Corp., 886 F.2d 451, 455 (1st Cir.1989).

The court finds Kristin’s alleged failure to repudiate the Deed in a timely manner is not at issue here. She signed the Co-Tenancy Deed on May 14, 2008. Richard initiated the partition action on December 31, 2008, seven months later. Claims of undue influence sound in tort, and tort actions have a statute of limitations of three years, pursuant to G. L. c. 260, § 2A. Howe, 80 Mass. App. Ct. at 742, citing Brignati v. Medenwald, 315 Mass. 636 , 636 (1944). In this court’s opinion, Kristin’s delay in bringing formal action of only seven months does not rise to the level of ratifying or waiving her challenge to the deed’s validity, particularly in view of the several less formal actions Kristin took almost immediately to try to disavow the Co-Tenancy Deed.

IV. Contract

When the existence of a contract is at issue, the burden falls on the party seeking performance. JP Morgan Chase & Co. v. Casarano, 81 Mass. App. Ct. 353 , 355 (2012), citing Canney v. New England Tel. & Tel. Co., 353 Mass. 158 , 164 (1967). In this case, Richard and Michelle, via Michelle’s cross-claim, allege they entered into an agreement with Kristin that she would convey Locus to all three siblings as tenants-in-common, in exchange for up-front payment of funeral expenses and other costs related to Locus. They bear the burden of proving its existence and validity. Michelle and Richard failed to present sufficient evidence of a meeting of the minds. It is clear from the parties’ testimony that each individual arrived at a different understanding. The testimony depicts vague conversations, spread over several days in which the parties discussed matters relating to funeral expenses and repair of Locus. These vague conversations ultimately did not provide the concrete material terms and intent necessary to constitute a valid contract. [Note 20]

V. Reimbursement Pursuant to Quantum Meruit and Unjust Enrichment

It is undisputed that Michelle fronted total of $10,992.00 in funeral expenses for Connie’s service and burial. Michelle seeks reimbursement for these expenses on the bases of quantum meruit and unjust enrichment. “The underlying basis for awarding quantum meruit damages ... is unjust enrichment of one party and unjust detriment ... to the other party.” Salamon v. Terra, 394 Mass. 857 , 859 (1985). Recovery in quantum meruit presupposes that no valid contract covers the subject matter of the dispute. Boswell v. Zephyr Lines, Inc., 414 Mass. 241 , 250 (1993). In order to recover in quantum meruit, a plaintiff must prove that (1) it rendered services with the reasonable expectation of being paid by the defendant; (2) the defendant had reason to believe that plaintiff was acting with the expectation of being paid; and (3) the defendant permitted the plaintiff to render services without objection. Therrien v. LeBlanc, 282 Mass. 328 , 330-331 (1933).

Michelle paid for funeral expenses fully expecting that she would be reimbursed. Kristin testified that she fully expected to repay her sister once Kristin successfully sold Locus. Michelle made it clear that she was fronting the expenses only to help Kristin out, and not out of duty to Connie. Kristin allowed Michelle to front the funeral expenses. Michelle is therefore entitled to reimbursement from Kristin in the amount of $10,992.00.

VI. Conclusion

Based on the foregoing, the court finds and rules Kristin executed the Co-Tenancy Deed as a result of duress. The court also finds that Kristin did not enter into a written or oral contract regarding the conveyance of Locus to her siblings in exchange for their fronting money to pay for their mother’s funeral and repairs to Locus. The Co-Tenancy Deed is therefore voided and judgment to that effect will issue. Kristin is ordered to reimburse Michelle for her payment of funeral expenses in the amount of $10,922.00, to be paid from the proceeds of the sale of Locus, or by August 31, 2015, whichever is earlier.

Judgment to issue accordingly.