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In the Matter of the Estate of Rosen (and a companion case) (Lawyers Weekly No. 11-165-14)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us   13-P-221                                        Appeals Court   IN THE MATTER OF THE ESTATE OF FRED S. ROSEN (and a companion case[1]). No. 13-P-221. Suffolk.     December 10, 2013. – December 30, 2014.   Present:  Berry, Meade, & Agnes, JJ. Will, Testamentary capacity, Power of appointment, Construction.  Devise and Legacy, Power of appointment.  Probate Court, Attorney’s fees.  Practice, Civil, Attorney’s fees, Summary judgment.  Power of Appointment.       Petition for probate of a will filed in the Suffolk Division of the Probate and Family Court Department on June 8, 2005.   Complaint in equity filed in the Suffolk Division of the Probate and Family Court Department on October 14, 2005.   After consolidation, the cases were heard by Elaine J. Moriarty, J., on motions for summary judgment; the cases were heard by her; and a motion for attorney’s fees was considered by her.     Susan E. Stenger for William P. Girard. Michael H. Riley for Rachelle A. Rosenbaum & others.      BERRY, J.  William P. Girard,[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,[3] as well as Girard and his brother (John Girard), long-time patients he had […]

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Posted by Massachusetts Legal Resources - January 5, 2015 at 5:28 am

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