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SJC-13436 Thomas Gibney v John A Hossack.
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(justices chattering)
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Okay, Attorney Davison, whenever you're ready.
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Good morning, may it please the Court,
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Juliet Davison on behalf of appellant John Hossack,
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who is the brother and sole-surviving
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immediate family member of the decedent, Heather Hossack.
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This case presents the issue
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whether words of survivorship alone in a bequest,
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"if she survives me," are always sufficient to defeat
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the application of the Massachusetts anti-lapse statute,
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Chapter 190B, section 2-603.
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More specifically here, do the words, "if she survives me,"
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following Heather's bequest of her U.S. Trust account
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to her brother, an account worth,
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with a date-of-death value of $2.3 million,
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to her mother Ethel Wyman,
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unambiguously state her intention to defeat
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the anti-lapse statute such that the gift
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would pass under the residuary clause
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to her next door neighbor, plaintiff Thomas Gibney.
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Prior to our adoption of the UPC.
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B3.
Prior to our adoption
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of the UPC, what was the effect of, "if she survives me"?
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If you know.
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If you don't, I can look it up.
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I'm thinking about how to answer your question.
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because prior to the adoption of the
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MUPC, the statute, Chapter 191, Section 22,
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I believe the language is similar in the statute.
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So, pre-UPC, I, in Massachusetts, have a will,
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and it says the U.S. Trust account
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goes to mom if she survives me.
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What happens?
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And mom dies.
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What I'm saying is the statute,
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the language of the statute is not different.
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The argument that I'm making to the court is
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that language does not say anything about what happens
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to the bequest if she doesn't survive.
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But you didn't know, I guess you don't know.
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You don't know what would happen
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if she survives me prior to the UPC.
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Is that what you're saying?
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I'm saying I-
You're saying it depends?
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The statutory language is different, but...
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I can read you the statutory language.
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No, I can do that.
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Thank you.
Okay.
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(Justice Wendlandt and Attorney Davison laughing)
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I'm trying to figure out what would happen
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to a pre-UPC will "if she survives me" language.
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Would that be enough to show a testator's intent
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that the devisee has to survive the testator?
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My brother would say that the MUPC did not change
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preexisting law on the anti-lapse statute.
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And that's why I asked the question,
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what was the preexisting law?
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(laughing) I don't have a reported case
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to present to the court.
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What I am saying is that
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there is nothing in the pre-existing statute,
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and there is nothing in the MUPC that defines, that says,
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if you use the language, "if she survives me,"
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that defeats the application of the anti-lapse statute.
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What does that language mean?
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Well, a lay person reading the language
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would say the plain meaning "if she survives me"
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is she needs to survive to take the gift.
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It does not tell you what happens
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to the gift if she doesn't survive you.
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And so what we've cited to the court,
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and there's a quite a bit of writing on this
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in various jurisdictions,
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and there's a conflict in different states,
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is there are plenty of ways to clarify
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what happens to the gift if A does not survive the testator.
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The will could say, "and if she doesn't survive me,
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"I intend that the-"
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We wouldn't be here if it said
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it goes to the residual clause. (laughing)
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It could have said that.
We wouldn't be here
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if that-
Exactly, right.
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Well, so that's the point, is the language,
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one is the language unambiguous or ambiguous.
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And I contend that certainly a lay person would
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say that it's ambiguous.
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There are probably some estate planners who would say
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that they believe it to be unambiguous,
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but there is, on the face of it, it does not tell you
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what is supposed to happen to the gift
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if A predeceases the testator.
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I'd like to, we cited this in our brief,
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but I would like to highlight for the court some aspects
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of the anti-lapse statute,
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the purpose of anti-lapse statutes.
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Before you do that-
Yep.
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Could you talk a little bit about the Mass UPC
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not adopting the B3 annotation?
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Yes, the B3 annotation says
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that words of survivorship never are sufficient alone
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to state an intention to defeat the anti-lapse statute.
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Our contention to the court and their,
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many courts have agreed with this
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and commentators have agreed with this,
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and some do not, that the converse of that,
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that does not mean that the converse of that is true,
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that words of survivorship always
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reflect an intention to defeat the anti-lapse statute.
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And there, I know we're not in Connecticut,
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but I would point you to Connecticut,
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where there is a case that has very closely followed...
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Connecticut did not adopt 2- Section 603
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of the B of the UPC,
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but the Supreme Court followed that reasoning
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and said that words of survivorship
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are never sufficient alone to defeat the application
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of the anti-lapse statute.
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So this court's,
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in interpreting the statute,
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"The court is to look at all the words
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"construed by the ordinary
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"and approved usage of the language
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"considered in connection with the cause of its enactment,
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"the mischief or imperfection to be remedied,
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"and the main object to be accomplished to the end
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"that the purpose of its framers may be effectuated."
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Rules of construction with regard to the anti-lapse statute.
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This is comment F to the restatement.
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"Anti-lapse statutes establish a strong rule of construction
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"designed to carry out presumed intention.
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"They are based on the constructional preference
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"against disinheriting a line of descent.
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"Consequently, these statutes should be given
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"the widest possible sphere of operation
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"and should be defeated only when the trier of fact
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"determines that the testator wanted to disinherit
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"the line of descent headed by the deceased devisee.
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"Hence, the burden is on those who seek to deny
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"the statutory protection,
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"rather than on those who assert it."
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As I alluded to earlier,
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but just want to make sure I spell out for the court,
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how can a contrary chapter 191B section 2-601,
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says that the four corners of the will govern
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unless the contrary intention is reflected
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on the face of the will.
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How can a contrary intention,
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how could it be reflected on the face of the will?
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Are you saying there was inappropriate fact finding?
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At all?
I don't think
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this judge made any factual findings.
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I think the judge found that
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the language was unambiguous
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because the legislature did not adopt
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section 2-603B of the UPC,
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and I don't think that she went much beyond that.
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And my argument, my primary argument to this court,
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is those words "if she survived me," are not unambiguous.
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There may be, there may be a estate planners may say,
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"Well, that's a practice that we've used,
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but where are the findings in this decision
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about the ordinary course of usage of these terms?
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And why is it that they're unambiguous?
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Did Heather, when she signed this will,
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understand that if her mother predeceased her,
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which was a good bet, that 2.5 million,
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a lot more than that now,
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dollars was going to pass to her next door neighbor,
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these were family assets,
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and not pass through the line of descent to her brother?
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Did she understand when she signed that will
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with those words prepared by a Connecticut lawyer,
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a state in which the law is very clearly
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that those words are not sufficient
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to defeat the application of the anti-lapse statute,
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did she understand that that
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was what the result of that will would be?
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And that our argument is that there is not,
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that this record does not unambiguously reflect
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she knew that that was going to happen.
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This was a will that was prepared by someone
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who did not know her, who spoke to her briefly,
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prepared the will on an urgent rushed basis
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in a very short amount of time,
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not admitted to practice in Massachusetts.
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There's no record of any research on Massachusetts law
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when he prepared the will.
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And so we contend that this will
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does not unambiguously reflect
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an intention to disinherit her brother,
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appended to the annotations to the anti-lapse statute are,
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the entire UPC is appended as annotations to the MUPC.
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So if you were to look at the MUPC on Westlaw,
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all the annotations are the uniform probate court entries.
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And so if you look at Chapter 2-,
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MUPC 2-603, you will see all of the comments
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from the UPC on this section, which go into enormous detail.
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And I'm happy to repeat them.
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They're cited in our brief.
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As to why words of survivorship are not sufficient
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to overcome the anti-lapse statute on their own.
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So they're appended to the statute,
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and the fact that they're appended to the statute
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puts the world and practitioners on notice
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of the ambiguity of the language,
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of the problems with the language.
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And again, this is not a complicated issue to solve,
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because, as Your Honor pointed out,
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all you would need to say is, "And it is my intention
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"that the gift should lapse if A does not survive me,"
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or "It is my intention that this gift should pass
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"to the residuary clause if a does not survive me."
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It's not a difficult undertaking,
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and it would provide clarity.
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A layperson would understand that.
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There is one reported case that the lower court
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cited in her decision, Lace versus Ecklund.
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It's an unpublished disposition in the appeals court.
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But what was interesting about that case is that
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the appeals court found the language
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to be ambiguous on summary judgment,
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and the case went to trial.
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Ultimately, the case was not appealed on that basis.
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And ultimately the court found that there
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was sufficient evidence to confirm an intention
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to defeat the anti-lapse statute,
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but on summary judgment, the court found
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that that language was ambiguous.
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Anything else?
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Let me see.
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Yes, I think you're going to hear from my brother
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about the four corners of the will.
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And I agree that the four corners of the will are critical.
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There are a large number of irregularities
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on the face of this will.
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I understand the will's been admitted to probate,
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but the attestation clause was not completed.
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There's no notarization.
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The will is full of references to executors.
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That is not a concept that we,
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terminology that we use in Massachusetts
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post adoption of the MUPC.
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It's personal representative.
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The will refers repeatedly to trustee and trustees.
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There's no trust or trustee, that's irrelevant.
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It really appears that this was a young Connecticut lawyer,
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in a hurry, using a form
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without necessarily conforming it to Heather's intention.
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There are references in Article X of the will
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to the Massachusetts general laws, which are nonsensical.
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They refer to general laws Section 2.
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They're adopted.
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That doesn't make any sense even if you say,
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"Well, what he meant was to refer to the MUPC Section 2,
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that wouldn't make any sense.
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Do with this parade of mistakes?
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What is your point?
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The point is that
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we do not have comfort that this will,
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that the way this will is being interpreted,
262
00:15:06.240 --> 00:15:09.930
reflects Heather's intention to disinherit her brother.
263
00:15:09.930 --> 00:15:11.490
This is a will that was prepared,
264
00:15:11.490 --> 00:15:14.400
and I understand it was admitted to probate,
265
00:15:14.400 --> 00:15:18.330
but the sort of all of the facts and circumstances
266
00:15:18.330 --> 00:15:20.550
around the language of this will
267
00:15:20.550 --> 00:15:23.400
and the execution of this will raise questions
268
00:15:23.400 --> 00:15:27.000
about can we have confidence that this is
269
00:15:27.000 --> 00:15:30.000
what Heather intended, unambiguously.
270
00:15:30.000 --> 00:15:33.273
And what I am submitting to you is that we cannot.
271
00:15:35.760 --> 00:15:38.820
One last point very quickly,
272
00:15:38.820 --> 00:15:40.830
just to address in Article XI,
273
00:15:40.830 --> 00:15:41.820
because I think my brother
274
00:15:41.820 --> 00:15:43.980
is gonna talk to you about Article XI,
275
00:15:43.980 --> 00:15:47.670
I would like to point out that this is just a form
276
00:15:47.670 --> 00:15:52.670
that Article XI, second sentence says, "No beneficiary..."
277
00:15:57.727 --> 00:15:59.347
"No beneficiary shall be considered
278
00:15:59.347 --> 00:16:00.667
"to have survived the event,
279
00:16:00.667 --> 00:16:02.917
"terminating any trust under my will
280
00:16:02.917 --> 00:16:05.797
"and to be entitled to any trust principle on the occurrence
281
00:16:05.797 --> 00:16:08.647
"of that event unless such beneficiary survives
282
00:16:08.647 --> 00:16:10.860
"for at least 30 days after that event."
283
00:16:10.860 --> 00:16:12.660
It's plainly form language.
284
00:16:12.660 --> 00:16:15.840
There were no trusts that were created under the will
285
00:16:15.840 --> 00:16:17.730
or that are in existence.
286
00:16:17.730 --> 00:16:19.730
Thank you very much.
Okay, thank you.
287
00:16:25.590 --> 00:16:27.180
Okay, attorney Muzio.
288
00:16:27.180 --> 00:16:28.013
Good morning.
289
00:16:28.013 --> 00:16:29.280
[Chief Justice Budd] Did I get that right?
290
00:16:29.280 --> 00:16:30.580
May it please the court,
291
00:16:32.910 --> 00:16:36.753
the lower court's decision in this case was correct.
292
00:16:37.740 --> 00:16:39.090
The will was allowed.
293
00:16:39.090 --> 00:16:41.579
We never hear an appellee say that.
294
00:16:41.579 --> 00:16:42.550
(justices laughing)
Well, I...
295
00:16:45.330 --> 00:16:48.667
The lower court examined this will as tasked under the MUPC
296
00:16:49.650 --> 00:16:54.650
and determined that there was a sufficient contrary intent
297
00:16:54.840 --> 00:16:57.090
in the four corners of the document.
298
00:16:57.090 --> 00:16:59.580
Now, the decision focuses
299
00:16:59.580 --> 00:17:03.240
on the condition of the gift, survival.
300
00:17:03.240 --> 00:17:08.240
Without satisfying the condition, the gift fails
301
00:17:08.970 --> 00:17:13.590
and falls to the residue under 2604 of the MUPC.
302
00:17:13.590 --> 00:17:17.430
Now, my sister talks about disinheriting her brother.
303
00:17:17.430 --> 00:17:19.380
She didn't disinherit her brother.
304
00:17:19.380 --> 00:17:22.170
She left her brother in excess of a million dollars.
305
00:17:22.170 --> 00:17:25.710
She left her neighbor the residue.
306
00:17:25.710 --> 00:17:30.710
His friend, healthcare proxy, trusted soul.
307
00:17:30.810 --> 00:17:33.930
So, when she did this, if you look at the will,
308
00:17:33.930 --> 00:17:35.250
you can see you have to look,
309
00:17:35.250 --> 00:17:37.020
you don't even have to look that hard.
310
00:17:37.020 --> 00:17:40.530
'Cause in addition to the survival language,
311
00:17:40.530 --> 00:17:42.300
she qualified these gifts.
312
00:17:42.300 --> 00:17:46.710
She considered who was going to predecease her.
313
00:17:46.710 --> 00:17:49.710
She was obviously faced with her mother predeceasing her,
314
00:17:49.710 --> 00:17:51.926
because her mother was 85 at the time
315
00:17:51.926 --> 00:17:53.910
that she signed the will.
316
00:17:53.910 --> 00:17:56.280
So that's a natural inclination.
317
00:17:56.280 --> 00:17:59.913
But all you have to do is look at the several dispositions,
318
00:18:01.350 --> 00:18:02.320
which are at
319
00:18:05.940 --> 00:18:08.910
Article V, tangible personal property.
320
00:18:08.910 --> 00:18:12.900
To her friend, Donald Etchison, per stirpes.
321
00:18:12.900 --> 00:18:16.260
In other words, he could predecease her,
322
00:18:16.260 --> 00:18:19.143
and whatever he was to get would go to his heirs.
323
00:18:20.010 --> 00:18:23.130
Similarly, with regard to the real estate,
324
00:18:23.130 --> 00:18:25.650
she left her home in Marblehead,
325
00:18:25.650 --> 00:18:29.040
and she left her three pieces of property in Maine
326
00:18:29.040 --> 00:18:33.030
to Donald Etchison, her friend, per stirpes.
327
00:18:33.030 --> 00:18:35.560
Again, she contemplated
328
00:18:36.480 --> 00:18:39.090
whether or not this person would survive.
329
00:18:39.090 --> 00:18:43.764
Now, same with Tom Gibney, per stirpes.
330
00:18:43.764 --> 00:18:45.090
As to the residue.
331
00:18:45.090 --> 00:18:48.840
If you look at the specific bequest in Article VIII,
332
00:18:48.840 --> 00:18:51.540
to her mother and her brother.
333
00:18:51.540 --> 00:18:54.337
She has a specific qualification.
334
00:18:54.337 --> 00:18:58.800
"If she," or in the case of the brother, "he survives me."
335
00:18:58.800 --> 00:19:01.650
She clearly contemplated that these gifts
336
00:19:01.650 --> 00:19:05.730
were not to go beyond the lives of the people
337
00:19:05.730 --> 00:19:07.233
that she named in her will.
338
00:19:08.070 --> 00:19:11.340
Obviously with respect to Mr. Gibney and Mr. Etchison,
339
00:19:11.340 --> 00:19:12.390
she thought about it.
340
00:19:12.390 --> 00:19:16.200
So, there's a clear contrary intent
341
00:19:16.200 --> 00:19:18.960
that the anti-lapse statute should apply,
342
00:19:18.960 --> 00:19:21.180
and whatever failed bequest,
343
00:19:21.180 --> 00:19:23.692
in this particular case to her mother,
344
00:19:23.692 --> 00:19:26.310
should go to the brother
345
00:19:26.310 --> 00:19:28.593
rather than the residue, Tom Gibney.
346
00:19:29.430 --> 00:19:31.260
In the record, yes,
347
00:19:31.260 --> 00:19:34.410
the attorney was admitted in Connecticut.
348
00:19:34.410 --> 00:19:38.770
There's no requirement that a will be drafted
349
00:19:39.789 --> 00:19:42.480
for a Massachusetts resident
350
00:19:42.480 --> 00:19:44.880
by an attorney in Massachusetts.
351
00:19:44.880 --> 00:19:49.880
Why isn't there an ambiguity "if she survives me,"
352
00:19:51.450 --> 00:19:54.300
where there's no additional language
353
00:19:54.300 --> 00:19:57.870
that if she does not, it goes to, it lapses?
354
00:19:57.870 --> 00:20:02.870
Well, I mean that's pervasive practice in Massachusetts-
355
00:20:03.090 --> 00:20:04.650
Which is?
356
00:20:04.650 --> 00:20:07.207
To use the language, the magic words,
357
00:20:07.207 --> 00:20:09.240
"if he or she survives me."
358
00:20:09.240 --> 00:20:11.310
It's a conditional gift.
359
00:20:11.310 --> 00:20:13.380
And what's your authority for that?
360
00:20:13.380 --> 00:20:18.270
We cited a half a dozen scholars and treatises
361
00:20:18.270 --> 00:20:21.330
advising Massachusetts practitioners, estate planners,
362
00:20:21.330 --> 00:20:25.320
on how to address application of the anti-lapse statute.
363
00:20:25.320 --> 00:20:28.830
Now, and I'd like to talk about Leis,
364
00:20:28.830 --> 00:20:31.860
because that really is the only Massachusetts case
365
00:20:31.860 --> 00:20:33.930
that addressed this issue.
366
00:20:33.930 --> 00:20:37.110
And actually Leis was raised by Judge Ulwick
367
00:20:37.110 --> 00:20:38.400
in the decision.
Can I ask you,
368
00:20:38.400 --> 00:20:40.267
sorry to interrupt your flow.
369
00:20:40.267 --> 00:20:44.430
"If she survives me" in Massachusetts practice, you say,
370
00:20:44.430 --> 00:20:47.758
has always been enough, is enough under the MUPC.
371
00:20:47.758 --> 00:20:50.008
Correct.
372
00:20:52.080 --> 00:20:54.660
Do you know why Connecticut went a different route?
373
00:20:54.660 --> 00:20:57.423
Well, Connecticut adopted the UPC.
374
00:20:58.440 --> 00:21:01.230
Do I know why Connecticut-
Well what is your...
375
00:21:01.230 --> 00:21:04.020
What will be the distinction between us and them?
376
00:21:04.020 --> 00:21:06.270
Well, Massachusetts made a conscious decision
377
00:21:06.270 --> 00:21:08.130
not to adopt 206B,
378
00:21:13.789 --> 00:21:14.910
2603B3.
379
00:21:14.910 --> 00:21:17.850
And I thought Connecticut did as well.
380
00:21:17.850 --> 00:21:18.690
Connecticut did.
381
00:21:18.690 --> 00:21:19.523
Well, the fact,
382
00:21:19.523 --> 00:21:21.960
I have no idea why Connecticut didn't adopt it.
383
00:21:21.960 --> 00:21:24.870
And their courts, the decision says what it says.
384
00:21:24.870 --> 00:21:27.441
But in terms of Massachusetts,
385
00:21:27.441 --> 00:21:30.300
and Judge Ulwick, who was on the committee
386
00:21:30.300 --> 00:21:34.440
who drafted the MUPC-
387
00:21:34.440 --> 00:21:36.720
Okay, so "if she survives me"
388
00:21:36.720 --> 00:21:39.600
in Massachusetts practice works.
389
00:21:39.600 --> 00:21:44.340
So you don't need the per stirpes in Article V
390
00:21:44.340 --> 00:21:47.370
or the per stirpes in the residual clause.
391
00:21:47.370 --> 00:21:49.710
Really, it-
Well, actually no,
392
00:21:49.710 --> 00:21:52.020
I disagree with that, because if...
393
00:21:52.020 --> 00:21:55.500
And this is, to me, this is why
394
00:21:55.500 --> 00:21:56.910
the anti-lapse statute developed,
395
00:21:56.910 --> 00:21:59.310
because you'd have a bequest to my mother,
396
00:21:59.310 --> 00:22:01.350
and then there would be nothing.
397
00:22:01.350 --> 00:22:02.183
Okay?
398
00:22:02.183 --> 00:22:06.300
So obviously you need some law.
399
00:22:06.300 --> 00:22:08.760
You need some legislation that dictates
400
00:22:08.760 --> 00:22:10.650
where this failed bequest goes,
401
00:22:10.650 --> 00:22:13.200
because it doesn't say if she survives me.
402
00:22:13.200 --> 00:22:15.210
It's not conditioned on if she survives me
403
00:22:15.210 --> 00:22:17.760
or if she survives me for 30 days.
404
00:22:17.760 --> 00:22:19.170
And this kinda goes back to your question
405
00:22:19.170 --> 00:22:23.400
earlier to my sister regarding what was the prior law?
406
00:22:23.400 --> 00:22:26.070
Okay, under chapter 191, Section 22,
407
00:22:26.070 --> 00:22:28.650
in this event, the court would have to look,
408
00:22:28.650 --> 00:22:30.600
or yeah, the court would have to look
409
00:22:30.600 --> 00:22:34.110
to an alternate disposition in the will.
410
00:22:34.110 --> 00:22:34.943
Okay?
411
00:22:34.943 --> 00:22:37.950
In other words, some affirmative disposition,
412
00:22:37.950 --> 00:22:41.010
you know, if not to A then to B, okay?
413
00:22:41.010 --> 00:22:42.660
That's not what the UPC says.
414
00:22:42.660 --> 00:22:47.190
The UPC says contrary intent, okay?
415
00:22:47.190 --> 00:22:49.170
You look to the document for contrary intent.
416
00:22:49.170 --> 00:22:51.720
And contrary intent and an alternate disposition
417
00:22:51.720 --> 00:22:53.580
can be two very different things.
418
00:22:53.580 --> 00:22:55.410
They can be the same, I agree,
419
00:22:55.410 --> 00:22:57.210
but they also can be two very different things
420
00:22:57.210 --> 00:22:58.830
in the sense that-
Do you have to show
421
00:22:58.830 --> 00:23:03.720
that she knew what would happen to that particular-
422
00:23:03.720 --> 00:23:06.806
I think it's important that she, do you have to show?
423
00:23:06.806 --> 00:23:09.360
Do you have to show that she knew
424
00:23:09.360 --> 00:23:12.690
what was gonna happen if her mother did not survive her?
425
00:23:12.690 --> 00:23:14.220
We did show.
426
00:23:14.220 --> 00:23:15.280
Would you show me
427
00:23:17.130 --> 00:23:18.660
where that is in the will?
428
00:23:18.660 --> 00:23:23.613
The attorney's deposition testimony in the record.
429
00:23:24.660 --> 00:23:27.000
But you only get there if we find
430
00:23:27.000 --> 00:23:29.010
that there's an ambiguity.
431
00:23:29.010 --> 00:23:30.510
Because that's extrinsic, right?
432
00:23:30.510 --> 00:23:32.971
Well, I think that within the context
433
00:23:32.971 --> 00:23:34.650
of this particular case,
434
00:23:34.650 --> 00:23:38.280
it was before Judge Ulwick on a summary judgment motion.
435
00:23:38.280 --> 00:23:39.113
Sure.
She did not,
436
00:23:39.113 --> 00:23:41.640
she ultimately found it was unambiguous.
437
00:23:41.640 --> 00:23:44.670
But in terms of the information that's developed
438
00:23:44.670 --> 00:23:48.150
during discovery and offered to the court
439
00:23:48.150 --> 00:23:50.340
within the context of a summary judgment motion,
440
00:23:50.340 --> 00:23:51.600
that doesn't necessarily mean it would be
441
00:23:51.600 --> 00:23:53.820
admissible evidence or extrinsic evidence
442
00:23:53.820 --> 00:23:56.400
that would be considered by the court after trial.
443
00:23:56.400 --> 00:23:59.425
First you'd have to find ambiguity or not.
444
00:23:59.425 --> 00:24:02.299
So, are we looking at the four corners of this or not?
445
00:24:02.299 --> 00:24:03.510
We are looking at the four corners of this.
446
00:24:03.510 --> 00:24:07.950
So within this, how you show that she understood
447
00:24:07.950 --> 00:24:10.890
what was gonna happen to the money or the account?
448
00:24:10.890 --> 00:24:14.523
Because she used the word per stirpes,
449
00:24:15.630 --> 00:24:18.330
with respect to two non-family members.
450
00:24:18.330 --> 00:24:21.960
And she used "if he and she survive me"
451
00:24:21.960 --> 00:24:23.670
with respect to the two family members.
452
00:24:23.670 --> 00:24:25.830
That to me is,
453
00:24:25.830 --> 00:24:30.327
this case is decided based on that set of facts.
454
00:24:30.327 --> 00:24:32.730
You think she knows those are magic words
455
00:24:32.730 --> 00:24:34.623
and we didn't adopt B3?
456
00:24:36.540 --> 00:24:39.330
I don't think we have to hold her to that stent.
457
00:24:39.330 --> 00:24:40.163
Oh.
In response to the-
458
00:24:40.163 --> 00:24:41.250
Do I think that she knows?
459
00:24:41.250 --> 00:24:42.810
I don't know.
460
00:24:42.810 --> 00:24:44.493
I don't know what Heather knew.
461
00:24:45.750 --> 00:24:48.243
Yes, you don't know if she knew?
462
00:24:49.410 --> 00:24:50.910
I mean that's the whole point.
463
00:24:50.910 --> 00:24:52.200
Well, I know from extrinsic,
464
00:24:52.200 --> 00:24:54.117
I know from the discovery that she knew.
465
00:24:54.117 --> 00:24:55.410
But I'm talking about-
466
00:24:55.410 --> 00:24:57.390
I know from the deposition testimony
467
00:24:57.390 --> 00:25:00.090
that my sister took of the attorney,
468
00:25:00.090 --> 00:25:02.280
who acknowledged that he had a specific discussion
469
00:25:02.280 --> 00:25:04.380
with Heather about the anti-lapse statute
470
00:25:04.380 --> 00:25:07.290
and what would happen if her mother predeceased her
471
00:25:07.290 --> 00:25:10.027
and the fact that if her mother did predecease her-
472
00:25:10.027 --> 00:25:11.640
But isn't that really why you
473
00:25:11.640 --> 00:25:13.260
hire an attorney to do your will?
474
00:25:13.260 --> 00:25:15.120
I mean, because the average person on the street
475
00:25:15.120 --> 00:25:17.466
doesn't really go around saying per stirpes.
476
00:25:17.466 --> 00:25:18.570
(justice laughing)
477
00:25:18.570 --> 00:25:19.530
Well, no, but-
And they don't
478
00:25:19.530 --> 00:25:20.850
really know what that means,
479
00:25:20.850 --> 00:25:23.970
but they communicate with their lawyer, who's their agent,
480
00:25:23.970 --> 00:25:28.970
and the agent presumably does what they are tagged to do.
481
00:25:29.790 --> 00:25:30.780
I don't disagree with that.
482
00:25:30.780 --> 00:25:33.990
But this is a legal document that was admitted to probate.
483
00:25:33.990 --> 00:25:38.990
It was offered as a formal petition for probate.
484
00:25:39.270 --> 00:25:41.970
It was allowed by the judge,
485
00:25:41.970 --> 00:25:43.830
and it is the operative document,
486
00:25:43.830 --> 00:25:48.180
and Judge Ulwick took the steps to review the will,
487
00:25:48.180 --> 00:25:49.950
found it to be unambiguous,
488
00:25:49.950 --> 00:25:52.722
and her decision should be affirmed.
489
00:25:52.722 --> 00:25:55.980
It's supported by the facts.
Well, counsel, let me,
490
00:25:55.980 --> 00:25:58.437
again, I make the same apology, Justice Wendlandt,
491
00:25:58.437 --> 00:26:00.300
and I know you were on a roll,
492
00:26:00.300 --> 00:26:05.300
but if we're talking about "if she survives me,"
493
00:26:05.310 --> 00:26:10.230
you know, you say it completely answers the question
494
00:26:10.230 --> 00:26:13.830
about what the intent of the testator was.
495
00:26:13.830 --> 00:26:18.540
But there is force to the other side's argument,
496
00:26:18.540 --> 00:26:20.520
to Attorney Davison's argument that,
497
00:26:20.520 --> 00:26:22.560
well, it might be some indication.
498
00:26:22.560 --> 00:26:25.440
It doesn't answer the entire question.
499
00:26:25.440 --> 00:26:30.440
Because, I suppose that there's equally the world where
500
00:26:32.490 --> 00:26:36.054
she just assumed that it would go to her brother.
501
00:26:36.054 --> 00:26:39.690
That "if she survives me,"
502
00:26:39.690 --> 00:26:42.270
if she didn't, that it would go to her brother.
503
00:26:42.270 --> 00:26:44.070
Okay, it didn't say that.
504
00:26:44.070 --> 00:26:48.510
But the "if she survives me," doesn't necessarily mean
505
00:26:48.510 --> 00:26:52.200
that the residual was to get the benefit of the money.
506
00:26:52.200 --> 00:26:56.280
Well, I think in several respects it does,
507
00:26:56.280 --> 00:26:58.350
because A, the gift fails.
508
00:26:58.350 --> 00:27:02.880
Failed gifts under the MUPC goal to the residue.
509
00:27:02.880 --> 00:27:04.950
That's 2604.
510
00:27:04.950 --> 00:27:08.670
Under 2601, if you're looking for a contrary intent,
511
00:27:08.670 --> 00:27:11.760
you have to use the plain meaning, okay?
512
00:27:11.760 --> 00:27:15.000
You have the construction of the will,
513
00:27:15.000 --> 00:27:17.790
you use the plain meaning, and you look to all the terms
514
00:27:17.790 --> 00:27:20.317
and you give them all effect.
515
00:27:20.317 --> 00:27:21.954
"If she survives me,"
516
00:27:21.954 --> 00:27:24.480
when held in contrast with per stirpes,
517
00:27:24.480 --> 00:27:29.250
distinguishing these two, she is cutting off,
518
00:27:29.250 --> 00:27:32.280
she is cutting off the gift to,
519
00:27:32.280 --> 00:27:37.280
the two conditional gifts to her brother and her mother.
520
00:27:38.550 --> 00:27:40.613
And she's not doing that with respect
521
00:27:40.613 --> 00:27:44.216
to the two gifts to her friend, Mr. Etchison,
522
00:27:44.216 --> 00:27:48.810
and the residue to her friend, Tom Gibney.
523
00:27:48.810 --> 00:27:50.340
Well, you can look at it the other way around,
524
00:27:50.340 --> 00:27:51.173
too, right?
Right.
525
00:27:51.173 --> 00:27:53.580
You've got two people who are not relatives
526
00:27:53.580 --> 00:27:55.953
that she wanted to make sure that they,
527
00:27:56.880 --> 00:28:01.350
of where the item or whatever the thing would go.
528
00:28:01.350 --> 00:28:02.670
And then for her mother,
529
00:28:02.670 --> 00:28:05.700
she perhaps assumed that it would go to her brother.
530
00:28:05.700 --> 00:28:06.990
Exactly.
And wouldn't have to
531
00:28:06.990 --> 00:28:09.030
make that clear.
Spell that out.
532
00:28:09.030 --> 00:28:11.190
Well, I think that the record reflects
533
00:28:11.190 --> 00:28:14.565
that the judge considered that she did not think
534
00:28:14.565 --> 00:28:19.560
that a failed bequest to her brother was gonna go to the,
535
00:28:19.560 --> 00:28:21.360
she actually thought that it was gonna go to the residue.
536
00:28:21.360 --> 00:28:23.070
She believed what her attorney told her.
537
00:28:23.070 --> 00:28:25.920
Attorney testified under oath.
I'm confused with that,
538
00:28:25.920 --> 00:28:27.120
because I didn't understand
539
00:28:27.120 --> 00:28:30.427
the appellant's answer to my question when I said,
540
00:28:30.427 --> 00:28:33.540
"So did he do any inappropriate fact finding?"
541
00:28:33.540 --> 00:28:35.220
The probate and family court judge.
542
00:28:35.220 --> 00:28:37.800
And she said, "No."
543
00:28:37.800 --> 00:28:39.487
And then you said, "That no,
544
00:28:39.487 --> 00:28:41.880
"it's the four corners of the document,"
545
00:28:41.880 --> 00:28:46.560
but it keeps coming up that the judge
546
00:28:47.670 --> 00:28:50.020
credited that Heather was told
547
00:28:51.330 --> 00:28:54.753
that the bequest to Wyman would pass under the residuals.
548
00:28:56.100 --> 00:28:59.433
That there was a crediting of Floren's testimony-
549
00:28:59.433 --> 00:29:01.290
Right.
Summary judgment.
550
00:29:01.290 --> 00:29:02.123
'Cause you can't have-
So I don't understand
551
00:29:02.123 --> 00:29:03.060
either of your answers.
552
00:29:03.060 --> 00:29:06.120
Well, are you not understanding because I,
553
00:29:06.120 --> 00:29:09.090
in terms of it being extrinsic evidence?
554
00:29:09.090 --> 00:29:12.000
Right.
Well, all I'm,
555
00:29:12.000 --> 00:29:14.100
in terms of you can look at
556
00:29:14.100 --> 00:29:15.570
the four corners of the document, and-
557
00:29:15.570 --> 00:29:17.880
Well, it's not necessarily that we can do that,
558
00:29:17.880 --> 00:29:21.450
because the judge decided this on summary judgment
559
00:29:21.450 --> 00:29:26.430
and said that the document itself was unambiguous.
560
00:29:26.430 --> 00:29:29.730
And I guess the confusion that we keep having is
561
00:29:29.730 --> 00:29:33.960
in the analysis, the judge continues to reference
562
00:29:33.960 --> 00:29:37.214
extrinsic evidence as informing
563
00:29:37.214 --> 00:29:42.214
what should be the four corners of the document.
564
00:29:42.720 --> 00:29:47.720
So if the judge is using the testimony of the attorney,
565
00:29:48.630 --> 00:29:50.407
that, "I told her this was going to fall
566
00:29:50.407 --> 00:29:54.630
"to the residual beneficiary or to the residue,"
567
00:29:54.630 --> 00:29:57.180
in terms of whether or not the contract itself,
568
00:29:57.180 --> 00:29:59.970
the will itself is unambiguous,
569
00:29:59.970 --> 00:30:03.180
you agree that the judge can't do that.
570
00:30:03.180 --> 00:30:05.910
I think within the, if you-
Let me start first,
571
00:30:05.910 --> 00:30:08.460
you agree that the judge can't do that
572
00:30:08.460 --> 00:30:11.010
if the will is unambiguous.
573
00:30:11.010 --> 00:30:13.770
In the vacuum of an unambiguous will,
574
00:30:13.770 --> 00:30:16.680
and a judge considering evidence on what that will says,
575
00:30:16.680 --> 00:30:19.440
yes, but outside that vacuum
576
00:30:19.440 --> 00:30:21.660
is a motion for summary judgment,
577
00:30:21.660 --> 00:30:23.370
where my sister is presenting
578
00:30:23.370 --> 00:30:26.700
what she says are genuine issues of material fact.
579
00:30:26.700 --> 00:30:28.080
Sure.
Those genuine issues
580
00:30:28.080 --> 00:30:30.690
of material fact, some of them arise
581
00:30:30.690 --> 00:30:34.350
out of the deposition testimony of the attorney.
582
00:30:34.350 --> 00:30:38.640
But the basis for summary judgment was not on that.
583
00:30:38.640 --> 00:30:43.640
It was based on that the will itself was unambiguous.
584
00:30:44.160 --> 00:30:47.340
That's, I agree with that.
Okay.
585
00:30:47.340 --> 00:30:49.230
And in terms of what you are defining
586
00:30:49.230 --> 00:30:50.580
as extrinsic evidence
587
00:30:50.580 --> 00:30:52.620
and her consideration of extrinsic evidence,
588
00:30:52.620 --> 00:30:55.590
it's within the context of a summary judgment,
589
00:30:55.590 --> 00:30:57.570
an opposing summary judgment.
590
00:30:57.570 --> 00:31:00.060
She needs to address those in the opinion.
591
00:31:00.060 --> 00:31:04.180
She can't just wipe away what my sister's arguments were
592
00:31:04.180 --> 00:31:08.430
and the facts that she raised and claimed were genuine,
593
00:31:08.430 --> 00:31:10.020
represented genuine issues of material fact.
594
00:31:10.020 --> 00:31:11.550
Let me try it this way.
595
00:31:11.550 --> 00:31:13.749
Can we or can we not consider
596
00:31:13.749 --> 00:31:16.233
what Floren said Heather knew?
597
00:31:17.160 --> 00:31:19.230
Well, you're hearing this de novo,
598
00:31:19.230 --> 00:31:21.280
because it was a summary judgment motion.
599
00:31:22.230 --> 00:31:25.530
And within that context,
600
00:31:25.530 --> 00:31:27.960
you can look at the four corners of this document
601
00:31:27.960 --> 00:31:32.190
and you can find that there is a sufficient contrary intent
602
00:31:32.190 --> 00:31:37.190
based on the plain language of "if she survives me"
603
00:31:37.410 --> 00:31:40.950
and the differentiation of the gifts.
604
00:31:40.950 --> 00:31:42.907
The judge I clerked for used to always say
605
00:31:42.907 --> 00:31:44.587
"We didn't get an answer to the question.
606
00:31:44.587 --> 00:31:46.380
"This isn't 'Meet the Press.'"
607
00:31:46.380 --> 00:31:51.380
So can we consider Floren's testimony or no?
608
00:31:51.660 --> 00:31:54.240
Well, the judge found the will unambiguous.
609
00:31:54.240 --> 00:31:56.850
But you said we can look at this de novo?
610
00:31:56.850 --> 00:31:58.494
Well, you're reviewing,
611
00:31:58.494 --> 00:31:59.460
but you're reviewing-
Well, I mean, you know,
612
00:31:59.460 --> 00:32:00.750
so summary judgment, right?
613
00:32:00.750 --> 00:32:02.493
We have material,
614
00:32:03.480 --> 00:32:06.510
no material disputed facts, right?
615
00:32:06.510 --> 00:32:08.100
That's the standard, right?
Right.
616
00:32:08.100 --> 00:32:11.940
And, you as a matter of law, get a judgment.
617
00:32:11.940 --> 00:32:16.920
And that would only be possible if we agree
618
00:32:16.920 --> 00:32:20.700
that the will itself is unambiguous, right?
619
00:32:20.700 --> 00:32:23.820
We couldn't consider Floren's testimony,
620
00:32:23.820 --> 00:32:26.400
because it is disputed.
621
00:32:26.400 --> 00:32:30.810
There were memory issues that he encountered, right?
622
00:32:30.810 --> 00:32:32.910
That is a disputed fact.
623
00:32:32.910 --> 00:32:36.480
So if we have to go to Floren to determine the intent
624
00:32:36.480 --> 00:32:39.840
of the testator, you lose,
625
00:32:39.840 --> 00:32:41.010
because we have to view it
626
00:32:41.010 --> 00:32:44.190
in the light most favorable to the non-movement.
627
00:32:44.190 --> 00:32:46.427
And as I just said, this court,
628
00:32:46.427 --> 00:32:49.650
based on a de novo review of the undisputed facts,
629
00:32:49.650 --> 00:32:51.330
looking at this will,
630
00:32:51.330 --> 00:32:52.890
within the four corners of the document,
631
00:32:52.890 --> 00:32:57.580
can conclude that there is a sufficient contrary intent
632
00:32:58.530 --> 00:33:00.540
for the application of the-
633
00:33:00.540 --> 00:33:02.703
Where does that sufficient come from?
634
00:33:04.140 --> 00:33:06.573
It's a sufficient contrary intent that,
635
00:33:07.770 --> 00:33:11.017
well, first of all, the plain language of
636
00:33:11.017 --> 00:33:13.200
"if she survives me."
But that's not the standard.
637
00:33:13.200 --> 00:33:15.520
It has to be unambiguously
638
00:33:16.410 --> 00:33:19.470
a contrary intent to not allow
639
00:33:19.470 --> 00:33:21.450
the anti-lapse statute to apply.
640
00:33:21.450 --> 00:33:23.100
It's a conditioned gift.
Yeah.
641
00:33:23.100 --> 00:33:24.180
Okay?
642
00:33:24.180 --> 00:33:25.793
If she survives-
Oh, I know the facts.
643
00:33:25.793 --> 00:33:26.640
I just, it's-
Okay.
644
00:33:26.640 --> 00:33:28.020
The sufficiency of the evidence
645
00:33:28.020 --> 00:33:30.020
is not the standard on summary judgment.
646
00:33:32.760 --> 00:33:37.760
Judge Ulwick found the will to be unambiguous,
647
00:33:38.100 --> 00:33:39.060
relied on the language.
648
00:33:39.060 --> 00:33:40.770
She didn't even mention the per stirpes language,
649
00:33:40.770 --> 00:33:42.690
which I think is critical,
650
00:33:42.690 --> 00:33:44.400
because there is a distinction
651
00:33:44.400 --> 00:33:47.013
between the two types of gifts.