Matter of Nires, 241 A.D.3d 555 (2d Dep’t 2025)

If an attorney assists a client in signing his will, is that attorney disqualified from being one of the two statutorily required witnesses to the execution of the will? In Matter of Nires, 241 A.D.3d 555 (2d Dep’t 2025), New York’s Appellate Division, Second Department, answered that question in the negative and upheld probate of the will.

In Matter of Nires, the decedent suffered from multiple sclerosis and, as a result, “had trouble holding a pen and affixing his signature to a document.” At the decedent’s request, the attorney who drafted the will, and was also one of the two required witnesses to its execution, “guided the decedent’s hand” in the decedent’s execution of the will. When the decedent’s executor moved to admit the will to probate, the executor for the decedent’s spouse, who was excluded from theresiduary estate under the will, objected to probate on the ground that, under New York’s Estates, Powers and Trusts Law (“EPTL”), the attorney’s guiding the decedent’s hand in signature disqualified the attorney as one of the witnesses to the will’s execution.

EPTL 3–2.1(a) provides that “every will must be in writing, and executed and attested in the following manner: (1) It shall be signed at the end thereof by the testator or, in the name of the testator, by another person in his presence and by his direction, subject to the following: ... (C) Any person who signs the testator’s name to the will, as provided in subparagraph (1), shall sign his own name and affix his residence address to the will but shall not be counted as one of the necessary attesting witnesses to the will ” (id. § 3–2.1[a][1][C] [emphasis added]). The objectant argued that the attorney’s guiding the decedent’s hand in signature meant that the attorney was disqualified as a witness under this provision.

The Surrogate disagreed, and the Appellate Division affirmed dismissal of the objection. The court distinguished between assistance and control, stating that “[t]he question whether the signature is the act of the testator does not turn upon the extent of the aid, but whether the aid was assistance or control.” Here, the court found, the aid was assistance requested by the decedent, and therefore not disqualifying for the attorney as witness. “The extent of that aid, so long as it is assistance, does not make the signature invalid, if the signing was in any degree an act of the testator, acquiesced in and adopted by him.”

The Takeaway

In Matter of Nires the will survived a challenge based on lack of due execution, but for purposes of avoiding probate litigation it is instructive. If a testator needs physical assistance in executing a will, consideration should be given to not including the person providing that assistance as one of the two required witnesses to the will’s execution.

In re Estate of Gravel, 105 Mass. App. Ct. 1143 (2025)

The Massachusetts Appeals Court recently affirmed a Probate and Family Court summary judgment decision holding void ab initio a purported trust amendment that was not approved by the holders of a majority of the beneficial interests, as the trust required. The case, In re Estate of Gravel, 105 Mass. App. Ct. 1143 (2025) (an unpublished disposition issued pursuant to M.A.C. Rule 23.0), involved a trust established by the decedent, Mary Jane Gravel, in 2017, for the benefit of her grandchildren and naming her son as her successor trustee. In 2022, the decedent executed an amendment to the trust naming her nephew as successor trustee (in place of her son) and made him (rather than her grandchildren) the beneficiary. After the decedent died, her son and nephew filed competing petitions for probate of her estate, and the nephew sought a declaration that the 2022 trust amendment was valid.

On cross motions for summary judgment, the Probate and Family Court ruled in favor of the son, finding that the 2022 amendment was void ab initio. On appeal, the Appeals Court affirmed. The Appeals Court noted that a disagreement existed concerning whether the trust was revocable or irrevocable, but stated that it did not need to resolve that question because the outcome of the case would be the same. That was so because the original 2017 trust, even if revocable, stated plainly that amendments to the trust could be made “by an instrument in writing signed by the beneficiaries holding at least 51% of the beneficial interest.” The Appeals Court held that the presence of this requirement for amendments in the trust rendered the 2022 amendment void because the amendment was not signed by any of the beneficiaries.

The Court rejected the nephew’s argument that an amendment was impossible under the language of the trust because the minor beneficiaries could not legally consent to it, and so an amendment was permissible under G.L. c. 203E, § 602(c), which applies when the terms of a trust do not provide a method for amendment. Instead, the Court recognized that the beneficiaries’ legal guardian—the decedent’s son—acting as their trustee could have approved the amendment on their behalf, but he had not done so. Accordingly, the 2022 amendment was void and could not be enforced, leaving the original 2017 trust and its beneficiaries in place.

The Takeaway

Under Massachusetts law, a trust amendment must strictly comply with the requirements in the trust for amendments of the trust. A failure to do so will render the purported amendment void ab initio.

Howard Posner v. Anna Hilton, Mass. App. Ct. 23-P-1471 (2025)

The Appeals Court affirmed a Probate and Family Court’s decision granting summary judgment in favor of a decedent’s long time romantic partner (“Plaintiff”), who sought a declaratory judgment and order disbursing the proceeds of the decedent’s accounts to her as the named beneficiary.

At the time of his death in August 2021, Paul Hilton (decedent) held a life insurance policy through LINA and two Fidelity accounts, a brokerage account and an IRA account. The Plaintiff was the named beneficiary on all three accounts. The decedent’s children challenged the designations, alleging that in 2019 Plaintiff fraudulently made changes to the decedent’s beneficiary designations herself and without the decedent’s consent. In opposing summary judgment, the decedent’s children relied largely on Google account history showing the decedent’s location searches and phone activity, arguing this data supported an inference that he could not have personally completed the transactions.

The Appeals Court reviewed the grant of summary judgment de novo. Plaintiff submitted documentation from LINA and Fidelity confirming that the beneficiary designations were valid on their face at the time of the decedent’s death. For example, LINA confirmed that Plaintiff had been the named beneficiary since 2017 and that her re-designation as the beneficiary through an online transaction in 2019 was not a “change.” The record showed that the Fidelity designations were made through a secure online portal. The decedent’s children’s reliance on Google Maps searches and phone activity did not create a triable issue as to whether the Plaintiff effected changes to the decedent’s beneficiary designations by fraud. At most, such evidence suggested a “remote possibility” that someone else made the electronic changes; however, the evidence could not negate the prior 2017 designation, nor did it support a reasonable inference that the plaintiff acted without the decedent’s knowledge or with intent to defraud. The court characterized the defendants’ allegations as speculative and conclusory.

The Takeaway

This decision reinforces several important principles. First, there is a presumption that a decedent’s beneficiary designations are accurate. Second, a party alleging fraud in beneficiary designations bears the burden of proof and must present credible, non-speculative evidence sufficient to overcome that presumption and survive summary judgment. Circumstantial digital activity, without more, will not suffice.

McLaughlin v. Shea, 106 Mass. App. Ct. 1118 (2026)

In a dispute over the transfer of real estate shortly before the decedent’s death, the Appeals Court affirmed a Probate and Family Court judgment dismissing a complaint equity alleging that the transfer of property resulted from fraud, undue influence, and lack of capacity. Following trial, the court concluded that the appellant failed to prove that the decedent’s conveyance of property to his niece was the product of undue influence or incapacity, and that the burden of proof on the undue influence claim did not shift to the inheriting niece despite her status as fiduciary.

In 2011, the decedent executed a will naming his niece as his executrix and devising his Charlestown, MA property to his nephew. On the same date, the decedent executed a durable power of attorney and health care proxy naming his niece as his attorney-in-fact and health care agent. Believing the Charlestown property would pass to him, the decedent’s nephew and his wife coordinated and contributed financially to repairs to the property.

In 2020, the decedent fell critically ill. His niece visited him daily and cared for him until his death. In January or February 2020, the decedent told his niece that he “was going to give her” the Charlestown property, and while hospitalized in the summer of 2020, he asked his niece to call an attorney. On July 15, 2020, the decedent met in person with an attorney in his niece’s home. At that time. the decedent executed two deeds conveying a remainder interest in the property to his niece while reserving a life estate for himself. He died twelve days later.

The decedent’s nephew filed an equity action alleging fraud, undue influence, and lack of capacity. The decedent’s nephew passed away during the pendency of the action and his estate pursued the litigation. After trial, the Probate and Family Court dismissed the equity complaint finding that there was no unnatural disposition of property and that the decedent possessed the requisite capacity to deed the property.

On appeal, the decedent’s nephew, through his estate, argued that because the decedent’s niece served as a fiduciary, she bore the burden of proving the absence of undue influence in connection with the decedent’s revised will. The Appeals Court disagreed. While acknowledging that the burden of proof in an undue influence claim may shift to a fiduciary who benefits from a transaction, the Court noted that such a shift was only appropriate where the fiduciary “has actually taken part in the questioned transaction.” Here, the Appeals Court noted that there was ample evidence to suggest that the decedent’s niece did not actively participate in the transfer of the Charlestown property.

In so finding, the Court emphasized that the decedent’s niece was not present during the execution of the deeds, nor was there evidence that she directed the attorney to prepare the documents or dictated their terms. Although she contacted the attorney at the decedent’s request, the judge found that the attorney provided independent counsel, warned the decedent that the change would upset his nephew, and explained each provision of the deeds to the decedent outside his niece’s presence. The judge credited the attorney’s testimony that the decedent was alert and understood the consequences of the transfer.

The Appeals Court also affirmed the Probate and Family Court’s determination that the decedent possessed the requisite capacity to deed the property. While the Court noted some evidence of the decedent’s medical issues (including an earlier episode of delirium and confusion), there was no expert testimony concerning the impact of the decedent’s medical condition on his decision-making ability. Arguments that the decedent’s suffered from vision impairment and that his signature differed from previous signatures were also unavailing, where the attorney testified that he knew the decedent was visually impaired, took the time to explain the deeds to him, and confirmed that the decedent understood the consequences of deeding the property to his niece. On this record, the Appeals Court found that the capacity determination was not clearly erroneous.

The Takeaway

The decision underscores that a person’s status as a fiduciary alone will not automatically shift the burden of proof in an undue influence case to a fiduciary who benefits from a transaction. In order for the burden to shift, the challenger must affirmatively show that the fiduciary not only benefitted, but actively participated in the questioned transaction. The decision also affirms the importance of expert testimony in capacity cases.

Walton v Walton, Mass. App. Ct. 25-P-380 (2025)

In a case arising from a dispute between brothers over their interests in real property under their mother’s will, the Probate and Family Court ruled that the will unambiguously created a tenancy in common and that one brother’s equity complaint triggered the in terrorem clause, thereby extinguishing his interest in the property and leaving the other brother as sole owner. After consideration, the Appeals Court vacated the decision. The Appeals Court held that (1) filing an equity action seeking interpretation of the will did not trigger the will’s in terrorem clause, and (2) the will was ambiguous as to the nature of the property interest created, precluding summary judgment.

In Massachusetts, in terrorem clauses, which are intended to deter challenges to a will by disinheriting a beneficiary who challenges the will, are enforceable, but narrowly construed. The Appeals Court concluded that the in terrorem clause at issue which stated, in relevant part, that it would apply to any beneficiary who “in any manner, directly or indirectly, attempts to contest or oppose the validity of my Last Will and Testament . . . [or] files a petition or other pleading to change the character . . . of property already so characterized by a Document” was not triggered by a beneficiary’s complaint in equity to interpret the will or enforce his brother’s oral promise that he could live in the property for his life. The equity action was brought in response to the other brother’s petition to partition the real estate passed to the brothers under the will. Where the equity action only sought judicial interpretation to determine whether the will granted life estates, a tenancy in common, or some lesser right of use and occupancy and to enforce an oral promise, the Appeals Court declined to find that the petitioner had “contest[ed] or oppose[d]” the will or sought to change the “character” of the property interest.

The Appeals Court further held that the will was ambiguous as to the type of interest conveyed. Although the will did not use traditional life estate language such as “for life” or “until death,” that omission was not dispositive. The decedent likewise did not use words of outright devise such as “bequeath” or “devise,” but instead granted the brothers “the right to use and occupy” the property. The will required the occupant to pay taxes, insurance, and maintenance, which is language consistent with a life estate or a lesser right of occupancy. It also provided that if neither brother chose to live there, expenses would be shared equally, and if one decided to sell, the other would have a right to purchase his share. Read as a whole, the provision was reasonably susceptible to more than one interpretation and thus summary judgment was inappropriate.

The Takeaway

The decision reinforces two principles of Massachusetts probate law. First, in terrorem clauses are enforceable but strictly and narrowly construed; a request for judicial interpretation of ambiguous will language did not constitute a will contest or trigger forfeiture under the language of the in terrorem clause at issue. Second, a grant of a “right to use and occupy” property, without traditional words of inheritance such as “bequeath” or “devise,” may create sufficient ambiguity to defeat summary judgment and require consideration of extrinsic evidence of the decedent’s intent. Careful drafting is essential to avoid uncertainty over what type of property interest has passed to a decedent’s heirs.