Who do you want your will to benefit or avoid? This was a central question in a Massachusetts appellate case, Barounis vs. Barounis (13-P-1270), in which three children contested wildly differing wills. One written in 2003 greatly favored one daughter and excluded the other children, and the other written in 2004 favored the other two siblings and excluded the daughter. All of the children filed appeals of the trial court’s ruling, which excluded the 2004 will and modified the 2003 will. The trial court’s decision reveals the importance of having a very clear answer to the question of who does or does not receive shares of your estate after your death.
In Barounis, the testator and central figure in this case had signed three different wills within a seven-year span of time, one in 1998, another in 2003, and a third in 2004. The most recent, properly executed will is typically the document to which the court will give legal effect. However, if the circumstances surrounding the execution of the document are found to be questionable, such as when there has been fraud or undue influence, the will, or portions of the will, may be set aside, leaving the remaining portions or a different, properly executed document to be probated.
The father ran a market for nearly 20 years with the assistance of his wife and three children. Two years after he retired, he composed a will that provided $10,000 to one child and left the rest of the estate in trust to the other two children in equal parts, if his wife pre-deceased him. Additionally, an annuity was set up to benefit his wife until her death and afterward the daughter who was awarded the $10,000 sum. When this daughter learned of the will, she became upset, telling her father that her other siblings were far better off financially than she was. Eventually, she began to manage properties her father owned and then the store.
The father changed the will in 2003 after speaking with an attorney who also spoke Greek, since English was not his first language. In this will, he changed the estate plan so that the daughter who was initially upset received the majority of the estate. This will explicitly excluded the other two children with the listed reason that they are “well-off financially.” In 2004, the will was changed again with a different attorney who did not speak Greek. The process was led by the father’s accountant, who also managed the accounts of his other two children’s businesses. This will left the majority of the estate to the other two children, with the other daughter receiving $5,000.
The appellate court, when reviewing the trial court’s findings, pointed to established case law that greatly favors probating the last will and testament as written. The law assumes that the person signing the will was capable of doing so, unless there was enough evidence to show that the person was unaware of what he or she was signing. In this case, the trial court found that there was plenty of evidence to show that the father did not know the contents of the 17-page will signed in 2004. Some of the facts leading to the court’s decision included the attorney not speaking to him in Greek and not using a translator, the names of his children being misspelled, and the attorney being paid by the daughter who was to receive nearly half the estate. Most of the process was handled by the accountant, who did speak Greek but was also very good friends with the two children who benefited from the 2004 will.
The appellate court did not feel that the judge’s findings of fact were “plainly wrong” and upheld the trial court’s decision to exclude the 2004 document. It did reverse the court’s decision to modify the 2003 will, which gave the market to the lone daughter and let the rest of the property pass through intestate, which would divide the remaining property through Massachusetts law guiding division of assets when there is no will. This reversal expanded the lone daughter’s award of the estate. The appellate court addressed the two siblings’ concern that the other daughter exerted “undue influence” on their father, and it concluded that while there was certainly influence, there wasn’t any evidence of coercion or fraud that was necessary to invalidate a will.
The Massachusetts estate planning attorneys at Karsner & Meehan have the experience you need to draft a concise and clear document that distributes your estate according to your wishes and follows the laws of the Commonwealth. For a consultation, call our office at 508.822.6600.
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