In the Matter of the Estate of Edward A. Morgan, Sr.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

25-P-765

IN THE MATTER OF THE ESTATE OF EDWARD A. MORGAN, SR.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After Edward A. Morgan, Sr. (decedent), passed away in

2023, his sister (petitioner) filed a petition to probate his

will. The decedent's daughter and son, Renee J. Whitehead and

Edward A. Morgan, Jr., filed objections with supporting

affidavits,1 which the petitioner moved to strike. A Probate and

Family Court judge allowed the petitioner's motion, finding that

the affidavits contained insufficient allegations to establish

undue influence, fraud, or lack of testamentary capacity. A

decree admitting the will to formal probate entered, and the

objectors appeal. We affirm.

1We will refer to the daughter and son together as
"objectors." We will refer to them individually as "Renee" and
"Edward Jr.," as the parties do in their briefs.
Background. We summarize the factual allegations in the

affidavits, which we take as true for purposes of this appeal.

See O'Rourke v. Hunter, 446 Mass. 814, 818 (2006).

The objectors are the decedent's only children. Their

mother, the decedent's ex-wife, died in 2019. The decedent's

relationship with Edward Jr., "while at times strained, was

along the lines of a typical father and son relationship over

many, many years." "Earlier in the 2000s," they lived in the

same apartment and then in the same building, and "[i]n earlier

years" they would fish, go to church, attend cookouts, wash the

cars, and cut hedges together. As for the decedent's

relationship with Renee, he "often told [her] that he loved

[her], and he was always trying to improve [their] father-

daughter relationship." For example, he wrote posts on Facebook

in March and August 2022 expressing his love for her.

In or around the spring of 2022, the petitioner

"reappeared" in the decedent's life. This occurred "just when"

the decedent had separated from his "companion and 'caretaker'"

after the decedent accused her of stealing and taking advantage

of him. The decedent then "allowed [the petitioner] to start to

handle his affairs and care."

In approximately June 2022, the petitioner "arranged for

the retention of" an attorney (estate attorney) to prepare

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estate planning documents for the decedent. At the petitioner's

request, the estate attorney drafted a will, among other

documents, which granted all of the decedent's real and personal

property to the petitioner. On June 10, 2022, the decedent

signed the will in the presence of the estate attorney and other

witnesses from his law office. The petitioner "appear[ed] to

have also had [the estate attorney] draft a Power of Attorney,"

which gave the petitioner "the authority to manage [the

decedent's] personal and business affairs while he was still

living."

For several years prior to June 10, 2022, the decedent "was

suffering from a degenerative cognitive condition which resulted

in memory loss, irrational, erratic, and 'crazy' behavior, and

other cognitive impairment." This caused the decedent "to be

unable to control his irrational and angry impulses," as

evidenced by posts he made to his Facebook account in 2019 and

spring of 2022 expressing anger at his deceased ex-wife. The

decedent had also "apparently been diagnosed with cancer" at

some point.

The petitioner did not keep the objectors informed about

the decedent's health or affairs and "did not originally tell

[Renee] that, in addition to [the decedent's] dementia, [he] had

been diagnosed with cancer." In August 2023, when the decedent

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asked to see Renee, the petitioner arranged for her and her

husband to visit the decedent in the hospital. The decedent was

happy to see Renee but did not recognize her husband. After the

visit the petitioner asked Renee if she and the decedent had

discussed "the house." Renee found the question "strange" and

replied that "[they] had not and instead had focused on [their]

love and father daughter relationship." Afterward, the

petitioner sent Renee a text stating, "Renee what I told u about

your dad's house, please don't tell him I said this or anyone

ok?"

In September 2023 Renee learned that the decedent was back

in the hospital and expressed frustration to the petitioner that

she continued to hide information about him. Later that month

or in early October 2023, the petitioner told Renee that the

decedent wanted the petitioner "to have the house." When Renee

asked what she meant, the petitioner replied that Renee "should

talk to the estate lawyer."

The decedent died on October 8, 2023. The objectors then

learned from the estate attorney that the decedent had excluded

them from his will. After the objectors retained their own

attorney, the estate attorney explained to their attorney that

the decedent had excluded them because they "had not had any

relationship with [their] father."

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Discussion. In a proceeding to probate a will, a party who

contests the will "shall file a written affidavit of objections

to the proceeding, stating the specific facts and grounds upon

which the objection is based." G. L. c. 190B, § 1-401 (e). If

the affidavit of objections fails to state "specific facts and

grounds" to contest the will, id., "such affidavit of objections

and the appearance of the party filing such affidavit of

objections may be struck on motion after notice at any time

after filing of such affidavit of objections." G. L. c. 190B,

§ 1-401 (f). The purpose of these statutory provisions is "to

help screen out frivolous attacks on wills." Matter of the

Estate of Nevers, 100 Mass. App. Ct. 861, 867 (2022), quoting

O'Rourke, 446 Mass. at 817.

The burden on an objecting party is "somewhat higher than

that required of a litigant filing a complaint." Matter of the

Estate of Nevers, 100 Mass. App. Ct. at 868. Specifically, the

burden is similar to that applicable "in other areas of the law

requiring . . . plaintiff[s] to assert with specificity in their

complaint (or other pleading) allegations which, if proved,

would entitle [them] to prevail" (quotation and citation

omitted). O'Rourke, 446 Mass. at 818. One example is Mass. R.

Civ. P. 9 (b), 365 Mass. 751 (1974), which provides that "[i]n

all averments of fraud, mistake, duress or undue influence, the

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circumstances constituting fraud, mistake, duress or undue

influence shall be stated with particularity." See O'Rourke,

supra at 818 n.5.

Here, the judge concluded that the objectors' affidavits

failed to allege specific facts supporting their claims of undue

influence, fraud, and lack of testamentary capacity. We address

these claims in turn, reviewing the judge's decision de novo.

See Cusack v. Clasby, 94 Mass. App. Ct. 756, 758 (2019). We

consider only the objectors' affidavits in our review. See

Brogan v. Brogan, 59 Mass. App. Ct. 398, 400-401 (2003),

abrogated on other grounds by O'Rourke, 446 Mass. at 820.2

1. Undue influence. "Four considerations are usually

present in a case of undue influence: that an (1) unnatural

disposition has been made (2) by a person susceptible to undue

influence to the advantage of someone (3) with an opportunity to

exercise undue influence and (4) who in fact has used that

opportunity to procure the contested disposition through

improper means" (quotation and citation omitted). O'Rourke, 446

Mass. at 828. Ordinarily, the burden is on the party contesting

2 Because counter affidavits may not be submitted in support
of a motion to strike, see Brogan, 59 Mass. App. Ct. at 400-401,
we have not considered the materials submitted by the petitioner
in her supplemental record appendix. Thus, no action is
required on the objectors' motion to strike the supplemental
appendix.

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the will to prove undue influence, but the burden shifts to the

will's proponent to disprove undue influence if the proponent

was "in a fiduciary relationship with" the decedent,

"benefit[ed] by means of a transaction with" the decedent, and

"actually [took] part in the questioned transaction."

Rempelakis v. Russell, 65 Mass. App. Ct. 557, 563 (2006). See

Matter of the Estate of Urban, 102 Mass. App. Ct. 284, 290

(2023).

The objectors contend that the judge erred here by not

shifting the burden to the petitioner to prove lack of undue

influence. We disagree because the objectors' affidavits

contain insufficient facts to establish that the petitioner was

in a fiduciary relationship with the decedent at the time of the

will's execution. The general allegation that the decedent

"allowed [the petitioner] to start to handle his affairs and

care" does not establish a fiduciary relationship. See Cleary

v. Cleary, 427 Mass. 286, 292-293 (1998) ("family relations do

not suffice to create a fiduciary relationship," and

"[s]imilarly, a nurse, housekeeper, or friend is not usually a

fiduciary"). Unlike in Cleary, id. at 293, on which the

objectors rely, their affidavits do not allege specific facts

showing that the decedent was "dependent on the beneficiary in

financial affairs." And although a power of attorney creates a

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fiduciary relationship, see Rempelakis, 65 Mass. App. Ct. at

564, the affidavits do not allege that the petitioner received a

power of attorney from the decedent before he executed the will.

Furthermore, the affidavits do not contain adequate

allegations to establish that the petitioner actually took part

in the creation of the will. Although the affidavits allege

that the petitioner "arranged for the retention of [a] law firm"

and "asked" the estate attorney to prepare the will, they

contain no allegations that the petitioner participated in the

drafting process or intruded into the attorney-client

relationship between the estate attorney and the decedent. That

the petitioner allegedly "arranged" for the execution of the

will and the attendance of witnesses is insufficient to shift

the burden to her to prove the absence of undue influence. See

Matter of the Estate of Urban, 102 Mass. App. Ct. at 291-292

(burden did not shift to fiduciary where he did not participate

in drafting of will and did not intrude on attorney-client

relationship); Rempelakis, 65 Mass. App. Ct. at 567 (fiduciary's

"presence at the time of execution of the documents and his

arrangement for the attendance of witnesses did not constitute

the kind of participation in the transaction" that would shift

burden to him). Cf. Matter of the Estate of Moretti, 69 Mass.

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App. Ct. 642, 654 (2007) (burden shifted where fiduciary "played

a substantial role in the drafting process").

Because the burden of proof thus remained with the

objectors, they had to allege specific facts in their affidavits

to support their claim of undue influence. They failed to do so

for at least two reasons. First, the affidavits do not contain

allegations sufficient to show an unnatural disposition. "A

testamentary disposition is not 'unnatural' simply because it

favors certain members of the testator's immediate family over

others." Rostanzo v. Rostanzo, 73 Mass. App. Ct. 588, 605

(2009). Indeed, a decedent can "leave his property to a close

friend rather than to a relative" without making an unnatural

disposition. Heinrich v. Silvernail, 23 Mass. App. Ct. 218, 224

(1986). Here, the affidavits are conspicuously void of any

allegation that either of the objectors had a close relationship

with the decedent, or had even seen or spoken to him, in the

time leading up to his execution of the will. That the decedent

left his estate to his sister, who was caring for him, was

therefore not unnatural. See Rempelakis, 65 Mass. App. Ct. at

569; Heinrich, supra.

Second, the affidavits do not identify any particular

conduct of the petitioner that establishes that she "procure[d]

the contested disposition through improper means" (quotation and

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citation omitted). O'Rourke, 446 Mass. at 828. The objectors'

brief on appeal does not specifically address this element of

their claim. To the extent the objectors rely on their

allegations regarding the petitioner's retention of the estate

attorney to prepare the will, they do not explain why that was

improper where their affidavits contain no allegations that the

petitioner pressured the decedent to execute the will. And to

the extent the objectors argue that the petitioner acted

improperly by excluding them from the decedent's life, their

affidavits fail to allege any specific, wrongful conduct in that

regard. Contrary to the objectors' characterization, their

affidavits do not establish that the petitioner acted as the

decedent's "gatekeeper" by "deciding who had access to see him"

and "when those visits were allowed." The affidavits allege

only that the petitioner did not keep the objectors informed

about the decedent's health and affairs. There are no

allegations that the petitioner isolated the decedent, prevented

him from contacting the objectors, or prevented them from

contacting him. Cf. Matter of the Estate of Moretti, 69 Mass.

App. Ct. at 655-656 (proponent of will used improper means to

procure disposition by isolating decedent from friends and

advisers and injecting himself into decedent's communications

with attorneys). Absent these types of allegations, the

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affidavits do not support the objectors' claims that the

petitioner engaged in improper means by acting as a "gatekeeper"

of the decedent's affairs. See Rempelakis, 65 Mass. App. Ct. at

569.

2. Fraud. For the same reasons, the objectors have failed

to allege sufficient facts to support their claim of fraud.

Although "[f]raud, in the sense of deceit, . . . is a separate

cause of action" from undue influence, where the claim is "that

an individual's free agency has been destroyed, the issue can be

expressed in terms of fraud or undue influence." Tetrault v.

Mahoney, Hawkes & Goldings, 425 Mass. 456, 463 n.7 (1997). In

their brief the objectors characterize their claim as fraud

based on undue influence. Thus, because the objectors failed to

adequately allege undue influence, their claim of fraud likewise

fails. See id. at 464. And to the extent the objectors are

claiming deceit, they fare no better because their affidavits

are void of allegations that the decedent signed the will

because he was "affected by a false representation of fact."

Id. at 463 n.7, quoting Wellman v. Carter, 286 Mass. 237, 253

(1934).

3. Lack of testamentary capacity. "At the time of

executing a will, the [testator] must be free from delusion and

understand the purpose of the will, the nature of [his]

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property, and the persons who could claim it." O'Rourke, 446

Mass. at 826-827. "The critical question is whether the

testator was of sound mind at the time the will was executed"; a

person "may possess testamentary capacity at any given time and

lack it at all other times" (quotation and citations omitted).

Id. at 827.

Here, the affidavits do not adequately allege that the

decedent lacked testamentary capacity at the time of the will's

execution in June 2022. Although the objectors claim that the

decedent was suffering from "a degenerative cognitive

condition," their affidavits do not allege with particularity

that this condition rendered the decedent not of sound mind when

he executed the will. See Wimberly v. Jones, 26 Mass. App. Ct.

944, 946 (1988) (objector's affidavit failed to establish lack

of testamentary capacity where "no specific fact mentioned in

[her] affidavit show[ed] any lack of such capacity"). Again,

the objectors do not allege that they ever saw or spoke to the

decedent in the relevant time period. That the decedent wrote

Facebook posts in 1999 and earlier in 2022 expressing anger at

his ex-wife does not show that he "was delusional, incompetent,

or confused in the days leading up to the making of [the] will."

Haddad v. Haddad, 99 Mass. App. Ct. 59, 70 (2021). Nor does the

decedent's cancer diagnosis establish lack of testamentary

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capacity. See Wimberly, supra ("We have been referred to no

case which holds that the circumstance that a decedent was 'to

undergo a life-endangering operation the next day,' by itself,

constitutes an indication that the decedent thereby was deprived

of soundness of mind"). Finally, the objectors misplace

reliance on the allegations in Renee's affidavit regarding the

decedent's inability to recognize her husband when they visited

the decedent in the hospital. According to the affidavit, this

visit occurred in August 2023, more than one year after the

decedent signed the will, and so does not bear on whether the

decedent had testamentary capacity to make the will.

Decree affirmed.

By the Court (Blake, C.J.,
Shin & Wood, JJ.3),

Clerk

Entered: June 25, 2026.

3 The panelists are listed in order of seniority.

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