James B. Nutter & Company v. Estate of Murphy, et al. (and two consolidated cases) (Lawyers Weekly No. 10-013-18)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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 SJC-12325 JAMES B. NUTTER & COMPANY vs. ESTATE OF BARBARA A. MURPHY & others[1] (and two consolidated cases[2]). Suffolk. October 2, 2017. – January 18, 2018. Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, & Kafker, JJ. Mortgage, Foreclosure. Real Property, Mortgage. Civil actions commenced in the Land Court Department on October 27, 2015; January 28, 2016; and February 11, 2016, respectively. A motion for partial judgment on the pleadings was heard by Robert B. Foster, J., and the cases were reported by him to the Appeals Court. The Supreme Judicial Court on its own initiative transferred the cases from the Appeals Court. Daniel Bahls (Uri Strauss also present) for Brett Jamieson. Effie Gikas Tchobanian for the plaintiff. Elaine Benkoski, for Estate of Barbara A. Murphy & others, was present but did not argue. GANTS, C.J. In 2007 and 2008, three elderly homeowners obtained loans from James B. Nutter & Company (Nutter), secured by reverse mortgages on their homes. A few years later, two of the borrowers died; the third took ill and could no longer live in her home. Alleging default, Nutter now seeks to foreclose on the mortgages. Rather than proceed directly to foreclosure, however, Nutter brought separate actions in the Land Court against each borrower or the executors of their estate,[3] seeking in each case a declaratory judgment allowing it to foreclose pursuant to the statutory power of sale. Each of the reverse mortgages adhered to Nutter’s standard form, which states in paragraph 20 that, in the event of default, “[l]ender may invoke the power of sale and any other remedies permitted by applicable law.” The issue we must resolve is whether this language in the reverse mortgage incorporates the statutory power of sale as set forth in G. L. c. 183, § 21, and allows Nutter to foreclose on the mortgaged property in accordance with the requirements in § 21. We hold that it does. Background. 1. Reverse mortgages. For many retirees, one of the most reliable potential sources of income in later life is the accrued equity in their homes. See Consumer Financial Protection Bureau, Issue Brief: The costs and risks of using a reverse mortgage to delay collecting Social Security, at 8 (2017). In order to secure cash for their living expenses, many […]
Buffalo Water 1, LLC v. Fidelity Real Estate Company, LLC (Lawyers Weekly No. 12-103-17)
COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT SUCV2017-1584-BLS 2 BUFFALO WATER 1, LLC Plaintiff vs. FIDELITY REAL ESTATE COMPANY, LLC Defendant MEMORANDUM OF DECISION AND ORDER ON DEFENDANT’S MOTION TO DISMISS This is an action challenging an independent appraisal of property as provided by an agreement between the parties, two sophisticated entities with experience in owning and leasing real estate. The plaintiff, Buffalo Water 1, LLC (Buffalo) is the owner of the property, located at 7 Water Street in downtown Boston (the Property). The defendant Fidelity Real Estate Company LLC (Fidelity) occupied the Property under a long term lease with an option to purchase the Property in the final year of the lease as set forth in an Option Agreement. The Option Agreement sets the purchase price at 95 percent of the “fair market value” (FMV) or $ 16,275,000, whichever is greater. If the parties could not agree upon the FMV, the Option Agreement set forth the specific appraisal process that the parties were to follow. Fidelity timely exercised its option to purchase and, with the parties unable to agree to the FMV, complied with the appraisal process, which included an independent appraisal. The Verified Complaint attacks the validity of the independent appraisal, contending among other things that the entity that employed the individual appraiser did not disclose a prior business relationship that it had with Fidelity. The case is now before the Court on Fidelity’s Motion to Dismiss. In support, it relies on the Massachusetts common law rule that severely limits the scope of judicial review regarding appraisals contractually authorized by the parties. Pursuant to that rule, the Court may invalidate an appraisal only where the appraiser plainly exceeded the scope of his authority or where the appraisal was the result of “fraud, corruption, dishonesty or bad faith.” Nelson v. Maiorana, 395 Mass. 87, 89 (1985), citing Eliot v. Coulter, 322 Mass. 86, 91 (1947). “The premise of the rule of restricted reviewability is that the contracting parties’ assignment of a valuation to an appraisal embodies their shared desire for finality.” State Room, Inc. v. MA-60 State Assoc., LCC, 84 Mass.App.Ct. 244 249 (2013). Applying that rule to the allegations in the Verified Complaint, this Court agrees with the defendant that the Complaint fails to state a claim upon which relief may be granted. Rule 12(b)(6), Mass.R.Civ. P. The independent appraisal was performed by Robert Skinner. Skinner worked for Cushman & Wakefield (Cushman), which was selected in compliance with the terms of the Option Agreement. The Engagement Letter pursuant to which Cushman was hired stated that the appraisal would be performed in accordance with certain standards, including the Code […]
Halbach, et al. v. Normandy Real Estate Partners, et al. (Lawyers Weekly No. 11-165-16)
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 15-P-1500 Appeals Court ERIC HALBACH & another[1] vs. NORMANDY REAL ESTATE PARTNERS & others.[2] No. 15-P-1500. Suffolk. September 12, 2016. – November 18, 2016. Present: Kafker, C.J., Milkey, & Blake, JJ. Practice, Civil, Summary judgment. Negligence, One owning or controlling real estate, Use of way, Duty to prevent harm, Pedestrian. Way, Public: defect. Civil action commenced in the Superior Court Department on February 17, 2012. The case was heard by Robert L. Ullmann, J., on a motion for summary judgment. Michael B. Bogdanow (John J. Carroll, Jr., with him) for the plaintiffs. Matthew Kirouac for the defendants. BLAKE, J. Plaintiff Eric Halbach (Halbach) suffered serious injuries when he fell as a result of uneven pavement on a public sidewalk adjacent to a commercial building owned by defendant 100 & 200 Clarendon Street, LLC (Clarendon), and operated, leased, and maintained by one or more of the remaining defendants (collectively, Normandy). Halbach and his wife, Kathleen Halbach, subsequently filed a complaint alleging that the defendants had a duty to either repair the sidewalk or warn pedestrians and the city of Boston (city) of the hazard. Concluding that no such duty exists, a judge of the Superior Court allowed the defendants’ motion for summary judgment. We agree, and affirm. Background. The following undisputed facts are taken from the summary judgment record. On June 4, 2009, Halbach was walking on Clarendon Street in the city, near the John Hancock garage (garage). He tripped and fell on uneven payment on a part of the sidewalk directly adjacent to the garage, sustaining significant injuries as a result.[3] The sidewalk where Halbach fell is owned by the city. At the time of the fall, the commercial property adjacent to the sidewalk was owned by Clarendon and maintained by Normandy. After the incident, Normandy hired a company to grind down the uneven payment at a cost of $ 798. On February 17, 2012, the plaintiffs filed a complaint in the Superior Court, which was amended on October 4, 2013. The amended complaint alleges that the defendants were negligent in their “ownership, control, maintenance and/or inspection” of the sidewalk adjacent to the garage by their “failure to ensure a safe pedestrian walkway” and their “failure to keep the area of the walkway free from defects and conditions […]
Red Door Real Estate, LLC v. Karwashan, et al. (Lawyers Weekly No. 12-146-16)
1 COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT CIVIL ACTION No. 14-03235-BLS 2 RED DOOR REAL ESTATE, LLC, Plaintiffs vs. SOUSAN KARWASHAN, RED DOOR PROPERTIES, INC., and RED REAL ESTATE, INC. Defendants FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER OF JUDGMENT In this action, plaintiff Red Door Real Estate, LLC (Red Door) alleges that the defendants have infringed upon its state service mark and otherwise engaged in unfair business practices. The five count Amended Complaint seeks damages as well as injunctive relief. The matter came before this Court for jury waived trial in August 2016. Based on that evidence this Court finds to be credible together with reasonable inferences drawn therefrom, I makes the following findings and rulings. FINDINGS OF FACT Plaintiff Red Door is a limited liability company that has its principal place of business in Quincy, Massachusetts. It was founded by Madeline Cheney in January 2010. Red Door is a real estate brokerage firm that represents buyers and sellers in commercial and residential real estate transactions. In addition to Cheney, it employs between 12 and 17 other brokers. The focus of Red Door’s business is in the South Shore, with most of its residential sales occurring in Quincy and its environs. Its total sales volume in 2015 was $ 23 million. 2 In July 2010, Red Door applied for and obtained state registration of a service mark.1 Cheney, who holds a bachelor’s degree in marketing, was the person who designed the logo that was part of that mark. The logo consists of black and red writing with the word “Red Door” appearing in block letters above the word “Real Estate” written in cursive. An angular drawing suggesting a roof and a door is positioned above the word “Red” in the logo. The registration for this service mark was renewed in 2015. It appears on all of Red Door’s marketing and advertising materials. It is also used on its internet site and on each broker’s business card. Shortly after Red Door opened its business, Cheney learned that there was another real estate agency located in Milton by the name of Red Door Realty. Cheney did not disclose this on her application for a service mark, even though the application expressly sought such information. In any event, the owner of Red Door Realty did not object to Cheney’s use of the Red Door title. In fact, the two companies have actually been co-brokers on one deal. There was no evidence presented at trial that there was any confusion among customers of either firm as a result of the name similarity even though they are both in the same line of business and operate in adjoining communities. That there has […]
Abrahamson v. Estate of LeBold (Lawyers Weekly No. 11-031-16)
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 15-P-474 Appeals Court RICHARD ABRAHAMSON vs. ESTATE OF JOHN LeBOLD. No. 15-P-474. Barnstable. January 14, 2016. – March 17, 2016. Present: Hanlon, Sullivan, & Maldonado, JJ. Limitations, Statute of. Executor and Administrator, Short statute of limitations. Practice, Civil, Statute of limitations. Jurisdiction, Equitable. Civil action commenced in the Superior Court Department on July 3, 2014. A motion to dismiss was heard by Cornelius J. Moriarty, II, J. Alexander J. Durst, of Ohio (David V. Lawler with him) for the plaintiff. Eric P. Finamore for the defendant. SULLIVAN, J. The plaintiff, Richard Abrahamson, appeals from a judgment dismissing his complaint because it was not filed within one year of the date of death of the decedent, John LeBold, as required by § 3-803(a) of the Massachusetts Uniform Probate Code (MUPC). See G. L. c. 190B, § 3-803(a). Abrahamson contends that his suit was timely filed pursuant to the savings statute, see G. L. c. 260 § 32, and, alternatively, he should have been granted equitable relief from the one-year limitations period in the MUPC. We conclude that G. L. c. 190B, § 3-803(a), governs, and G. L. c. 190B, § 3-803(e), bars the award of equitable relief in the trial court. 1. Procedural history. The following procedural history is undisputed on appeal. Abrahamson first filed suit against John LeBold in the Court of Common Pleas in Hamilton County, Ohio, in September of 2012. A little over two months later, on December 5, 2012, LeBold died. The Ohio trial court dismissed the suit for lack of personal jurisdiction on January 22, 2013, and Abrahamson appealed. While the appeal was pending, on February 13, 2013, LeBold’s counsel filed a “Suggestion of Death” with the trial court. Abrahamson then successfully substituted LeBold’s estate as the defendant in the Ohio appeal. On December 6, 2013, a year and a day after LeBold’s death, the Ohio Court of Appeals affirmed the dismissal on the ground of lack of personal jurisdiction. Abrahamson did not file suit in Massachusetts until July 3, 2014, over a year and a half after LeBold’s death. The estate filed a motion to dismiss the Massachusetts action, which was allowed. In a comprehensive and well-reasoned memorandum, the motion judge ruled that Abrahamson’s claims were barred as a matter of law because LeBold had died more than a year before the plaintiff filed suit in Massachusetts, thereby […]
In the Matter of the Estate of Galatis (Lawyers Weekly No. 11-136-15)
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 14-P-579 Appeals Court IN THE MATTER OF THE ESTATE OF CHARLES P. GALATIS. No. 14-P-579. Middlesex. April 14, 2015. – September 9, 2015. Present: Berry, Milkey, & Massing, JJ. Will, Testamentary capacity. Petition for probate of will filed in the Middlesex Division of the Probate and Family Court Department on June 12, 2000. The case was heard by Maureen H. Monks, J. Dimitrios Ioannidis for town of Skiathos. William M. Driscoll for Syriano Kyparissou Kontos & others. MILKEY, J. On January 15, 2000, Charles P. Galatis, then seventy-six years old, was admitted to Massachusetts General Hospital (MGH). Once admitted, he was diagnosed with stage IV lung cancer, and over the ensuing weeks he suffered a rapid overall decline in his physical and mental condition. Galatis remained hospitalized,[1] and he died on February 25, 2000. On February 9, 2000, Galatis executed a document purporting to be his will. The executor named in the will formally presented it for probate, joined by the will’s principal beneficiary, the town of Skiathos, Greece.[2] Two of the decedent’s cousins contested the will. After a ten-day trial, a Probate and Family Court judge declined to allow the will, because she found that Galatis lacked testamentary capacity on February 9. Because that finding is amply supported by record evidence, we affirm. Background. The judge made 559 factual findings that totaled seventy-one pages. We summarize those findings, almost all of which are unchallenged, and highlight the facts still in dispute. See Rempelakis v. Russell, 65 Mass. App. Ct. 557, 559 (2006). 1. Galatis’s background medical conditions. By the time Galatis was admitted to MGH, he already suffered from a long list of medical problems including diabetes, hyperkalemia (excess potassium in the blood), and major depression. For such problems, Galatis was taking twelve different prescribed medications, including the antidepressant Elavil, and two different narcotics for pain relief. The symptoms of anxiety and depression worsened following his diagnosis with metastatic lung cancer. He therefore was prescribed a second antidepressant, and the dosages for both antidepressants subsequently were increased. His painkillers also were aggressively increased, and he was placed on a self-administered morphine drip beginning on February 8. 2. The February 1 document. When he entered MGH, Galatis apparently had no existing will. At some point during his initial hospitalization, he […]
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 […]
Estate of Gavin v. Tewksbury State Hospital, et al. (Lawyers Weekly No. 10-082-14)
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 SJC‑11422 ESTATE OF STEVEN GAVIN vs. TEWKSBURY STATE HOSPITAL & another.[1] Middlesex. January 6, 2014. ‑ May 15, 2014. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ. Massachusetts Tort Claims Act. Wrongful Death. Practice, Civil, Presentment of claim under Massachusetts Tort Claims Act, Wrongful death, Standing. Negligence, Wrongful death. Executor and Administrator, Governmental claims. Words, “Claimant.” Civil action commenced in the Superior Court Department on March 24, 2011. A motion to dismiss was heard by Garry V. Inge, J. After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review. Robert S. Sinsheimer for the plaintiff. Mark P. Sutliff, Assistant Attorney General, for the defendants. J. Michael Conley, Thomas R. Murphy, & Elizabeth N. Mulvey, for Massachusetts Academy of Trial Attorneys, amicus curiae, submitted a brief. BOTSFORD, J. The estate of Steven Gavin (estate) commenced this action for wrongful death in the Superior Court against the Commonwealth and Tewksbury State Hospital (hospital) under the Massachusetts Tort Claims Act (act), G. L. c. 258. The estate seeks to recover damages on account of the death of Steven Gavin (decedent), a death allegedly caused by negligent conduct on the part of hospital staff members. The primary issue before us is whether the statutory requirements for presentment of a claim under the act, see G. L. c. 258, § 4 (§ 4), were met when the presentment was made by the estate (through its attorney), and not by the duly appointed executor or administrator of the estate. Ruling on the defendants’ motion to dismiss the complaint, a judge concluded that the presentment requirement was not met in these circumstances, and allowed the motion. A divided panel of the Appeals Court affirmed. Estate of Gavin v. Tewksbury State Hosp., 83 Mass. App. Ct. 139 (2013). The case is before us on further appellate review. We conclude that in the circumstances of this case, the presentment made by the estate was proper. We therefore vacate the judgment of the Superior Court. 1. Background. The decedent died on August 11, 2008. In the weeks preceding his death, he was receiving inpatient care at the hospital for Huntington’s disease; the estate claims that his death was caused by a bacterial infection due to the improper reinsertion of […]
Estate of Moulton v. Puopolo, et al. (Lawyers Weekly No. 10-046-14)
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 SJC‑11357 ESTATE OF STEPHANIE MOULTON vs. NICHOLAS PUOPOLO & others.[1] Middlesex. November 4, 2013. ‑ March 14, 2014. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ. Wrongful Death. Workers’ Compensation Act, Action against employer, Identity of employer. Governmental Immunity. Practice, Civil, Wrongful death, Motion to dismiss, Interlocutory appeal, Standing. Corporation, Charitable corporation, Director’s liability, Board of directors. Negligence, Wrongful death, Governmental immunity, Employer, Gross negligence. Fiduciary. Attorney General. Civil action commenced in the Superior Court Department on April 15, 2011. A motion to dismiss was heard by Douglas H. Wilkins, J. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. John D. Frumer for the defendants. John James Regan (Barry A. Feinstein & Thomas Hodgkins with him) for the plaintiff. The following submitted briefs for amici curiae: Robert J. Murphy, Peter C. Kober, & William P. Mekrut for Massachusetts Council of Human Services Providers, Inc., & others. John J. Barter for Professional Liability Foundation, Ltd. Carol A. Kelly for Property Casualty Insurers Association of America. LENK, J. At the time of her death on January 20, 2011, twenty-five year old Stephanie Moulton was employed as a residential treatment counsellor at North Suffolk Mental Health Association, Inc. (North Suffolk), a charitable corporation that provides mental health and rehabilitation services.[2] While at work at North Suffolk’s Revere treatment facility, Moulton was alone with DeShawn James Chappell, one of the facility’s residents, when Chappell assaulted Moulton, causing her death.[3] Several months after her death, Moulton’s estate brought a wrongful death action, G. L. c. 229, § 2, in the Superior Court against the directors of North Suffolk (director defendants),[4] two psychiatric consultants who had been involved in Chappell’s admission,[5] the Commonwealth, and Chappell.[6] Claiming that the defendants’ conduct was “willful, wanton, reckless, malicious and constituted gross negligence,” the complaint seeks punitive damages, and separately alleges a breach of fiduciary duty by the director defendants. The gravamen of the complaint against the director defendants is that, as a result of admissions and operating policies that they had effectuated, and others that they had failed to effectuate, those who evaluated clients for residential placement were unaware of Chappell’s lengthy history of convictions of violent crimes and his mental health history exhibiting a tendency toward violence. Moreover, […]
In the Matter of the Estate of Sharis (Lawyers Weekly No. 11-086-13)
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 12‑P‑693 Appeals Court IN THE MATTER OF THE ESTATE OF ALICE R. SHARIS. No. 12‑P‑693. Suffolk. March 20, 2013. ‑ June 28, 2013. Present: Vuono, Rubin, & Sullivan, JJ. Will, Testamentary capacity, Undue influence. Undue Influence. Petition for probate of a will filed in the Suffolk Division of the Probate and Family Court Department on April 14, 2010. The case was heard by John M. Smoot, J. Jonathan D. Plaut for Richard Spinelli. Andrew G. Bunnell for Florence Cavallaro. SULLIVAN, J. Richard Spinelli appeals from a decision of a judge of the Probate and Family Court disallowing the will of his grandmother, Alice R. Sharis (Alice),[1] on the grounds of lack of testamentary capacity and Spinelli’s undue influence. We discern no error in the judge’s conclusions that Spinelli was a fiduciary, and that the will was the product of undue influence. Accordingly, we affirm the judgment.[2] 1. Background. Born in 1916, Alice came to the United States from Turkey when she was twelve years old, and completed the seventh grade. She had three daughters, Virginia, Louise, and Florence, with her first husband, whom she divorced in 1959. She had sixteen surviving grandchildren and several great-grandchildren. The decedent married her second husband, Peter, in 1961. Peter, who predeceased Alice by thirteen months, suffered from Alzheimer’s disease in the last years of his life and lived in a nursing home during the last six months of his life. Spinelli is one of Alice’s grandchildren. After separating from his wife in November, 2003, he asked Alice and Peter if he could move into their home. He remained there through Peter’s illness and death and the death of Alice on February 13, 2010. He made no monetary contributions to the upkeep or running of the home, but he did drive Alice to medical appointments and other destinations. The judge found that Spinelli gained nearly complete control of Alice and Peter’s checking account between 2006 and 2008. Spinelli signed Peter’s name to 119 checks between March 4, 2006, and February 4, 2008. Alice complained to one of her daughters and a granddaughter that she did not know where her money or checks were. On June 30, 2007, Alice signed a durable power of attorney, prepared by Spinelli, that took effect immediately and […]