In the Matter of the Estate of Ralph Parker Christie.

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

22-P-741

IN THE MATTER OF THE ESTATE OF RALPH PARKER CHRISTIE.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Ralph Parker Christie (decedent) died on December 2, 2017,

shortly after his ninetieth birthday. His last will and

testament dated January 30, 2017 (will or 2017 will), named

Christopher J. Chetwynd, whom the decedent had known for three

years prior to the execution of the will, as the primary

beneficiary and nominated Chetwynd as personal representative of

the estate. Chetwynd filed a petition for formal probate of the

will and appointment as personal representative in the Probate

and Family Court; the decedent's niece, Donna J. Madore (Donna), 1

objected that the will was the product of undue influence. 2

After a trial, a judge found that Chetwynd had exercised undue

1Because Donna and David Madore share a surname, we use
their first names.

2The probate judge allowed the Salvation Army's motion to
intervene prior to trial. The Salvation Army joins Donna's
brief in this appeal.
influence over the decedent. 3 Chetwynd now appeals from the

decree denying his petition for formal probate of the will,

arguing that the judge improperly shifted the burden of proof to

Chetwynd and the evidence was insufficient to support the

finding of undue influence. We affirm.

Background. The judge found the following facts. 4

1. Decedent's relationship with Donna and Chetwynd. The

decedent spent a significant amount of time with Donna and her

husband, David Madore (David), during his lifetime. From 1990

to 2014, the decedent traveled to Washington each summer to see

the Madores and typically stayed with them for four to six

weeks. Those annual visits ceased after 2014 as the decedent's

health began to decline, but the decedent remained in touch with

the Madores by telephone a few times per month.

By fall of 2014, the decedent was suffering from dementia,

confusion, poor judgment, decreased comprehension, impulsivity,

and memory deficits. His physical health began to decline the

following year. He used a walker as his strength, balance, and

endurance decreased.

3 Donna also objected based on lack of capacity. The trial
judge found that the decedent had testamentary capacity at the
time that the will was executed, and the parties make no
argument about that finding.

4 To the extent some of the facts contained herein were
disputed at trial, we conclude that these facts were supported
by the record based on our own independent review.

2
It was around this time that the decedent met Chetwynd. In

January 2014, the decedent brought his car in for service at the

car care center where Chetwynd worked. The decedent was eighty-

six years old and lived by himself in an apartment in Quincy.

As the decedent sought further repairs for his car, he formed a

relationship with Chetwynd. Chetwynd and the decedent had

several shared interests, including baseball, cars, and history,

as well as their mutual involvement in the Free Masons. As

their friendship formed and until his death in 2017, the

decedent spent holidays and birthdays with Chetwynd and

Chetwynd's family, including his two children, and attended

other events with them.

Shortly after they met, Chetwynd advised the decedent that

he should replace his car and brought him to the car dealership

where Chetwynd had previously worked. The decedent purchased

two vehicles from that dealership over the course of a few

months in 2014. Not long after the decedent purchased the first

vehicle, a 2010 Chrysler Sebring, he was involved in a car

accident that caused the total loss of the vehicle. The

decedent's driver's license was suspended as a result of the

accident; however, the decedent purchased a brand new fire

engine red Dodge Challenger with a V6 engine (Challenger). The

decedent ultimately was unsuccessful in getting his license

3
reinstated, and the dealership refused to let him return the

Challenger.

Because the decedent did not have a license, he relied on

Chetwynd for transportation, including to the grocery store and

medical appointments, beginning in the summer of 2014. Less

than a year later, in the spring of 2015, Chetwynd was involved

in a car accident in his own vehicle while driving the decedent

to an appointment. After the accident, Chetwynd and the

decedent executed an agreement that the decedent would transfer

title of the Challenger to Chetwynd with the option to rescind

the "gift" at any time. The decedent remained financially

responsible for all expenses related to the vehicle under the

agreement and he paid all expenses for the Challenger, including

car payments, insurance, taxes, maintenance, and repairs, until

his death. In exchange, Chetwynd agreed to provide rides to the

decedent, but also was permitted to use the Challenger for his

own personal and professional use. The car agreement was

drafted at Chetwynd's request by Eileen Lawlor, an attorney with

whom he was acquainted; Lawlor did not review the agreement with

the decedent before it was executed. Shortly after the

agreement was executed, Chetwynd also began assisting the

decedent in writing checks, including to pay for installation of

a spoiler on the Challenger. Although Chetwynd had been in

4
contact with the Madores about the decedent at this point,

Chetwynd did not give them a copy of the car agreement.

2. Healthcare proxy and power of attorney. In 2015, on

advice from an elder services agency, the Madores and Chetwynd

discussed whether the decedent would agree to put in place a

power of attorney and healthcare proxy. If the decedent agreed,

Donna offered to make an appointment with the same attorney who

represented the decedent in connection with his driver's

license, and to travel to Massachusetts to attend the meeting.

The decedent in fact already had executed both documents in

2011, and named Attorney Mark A. Leahy as his agent and attorney

in fact as well as his healthcare proxy. Attorney Leahy had

represented the decedent since at least 2002.

Notwithstanding the prior healthcare proxy, Chetwynd

printed a form from the Internet and filled it out listing

himself as the decedent's healthcare proxy. The decedent then

signed the form (HCP). Chetwynd did not give the Madores a copy

of the HCP, but they were aware of the HCP after the fact.

On Chetwynd's own initiative in January 2016, he contacted

Attorney Rebecca McWilliams, whom he had known for several years

through work on political campaigns, to prepare estate planning

documents for the decedent. Before McWilliams spoke with the

decedent, she drafted and sent to Chetwynd a power of attorney.

The following month, Chetwynd took the decedent to McWilliams's

5
office where the decedent executed a so-called "springing"

durable power of attorney (2016 POA) that appointed Chetwynd as

his attorney in fact contingent on first obtaining a written

statement from a licensed physician indicating that the decedent

was incapable of "attending effectively to [his] financial

affairs by reason of mental or physical disability." At the

time, the decedent told McWilliams that he did not have a power

of attorney, despite his previous appointment of Attorney Leahy.

Chetwynd did not tell the Madores about the 2016 POA and they

learned of it only days before trial.

During Attorney McWilliams's meeting with the decedent, she

offered to assist the decedent with his investments and the

decedent agreed. McWilliams was licensed to sell life insurance

and mutual fund-based investments, and also worked as an

independent contractor with Primerica. In March 2016, she took

the decedent to the registry of motor vehicles to obtain an

identification card and then to his various financial

institutions to close his accounts. The decedent consolidated

and transferred his funds, totaling around $450,000, to a

Primerica account. The decedent maintained a checking account

and Chetwynd continued to write checks from that account which

the decedent signed, including one for $5,695, which was a loan

from the decedent to Chetwynd's boss. Chetwynd served as a

6
guarantor on the loan, but it eventually was repaid in full by

his boss.

3. Will and subsequent POA. In early January 2017, the

decedent was admitted to the hospital and diagnosed with

pneumonia and congestive heart failure. The decedent later was

transferred to the Bostonian Rehab & Nursing Center (Bostonian),

at Chetwynd's request because his sister worked there. Chetwynd

frequently visited the decedent at the Bostonian. Chetwynd also

used the decedent's debit card during this time to make

purchases for both himself and the decedent.

While the decedent was at the Bostonian, Chetwynd told

Attorney McWilliams that the decedent wanted to put Chetwynd in

his will. McWilliams then met with the decedent alone and went

over changes that the decedent wanted to make to his will. At

the time, the decedent had a will that he had executed in 2012

(2012 will). Chetwynd retrieved the 2012 will from the

decedent's apartment and provided a copy to McWilliams. The

2012 will nominated Attorney Leahy as personal representative of

the estate. The 2012 will devised one-half of the decedent's

estate to his church, the Quincy Community United Methodist

Church of Wollaston (church), one-quarter to the decedent's

7
former spouse (who had since passed away), one-eighth to the

Salvation Army, and one-eighth to the Madores. 5

On January 30, 2017, the decedent executed the will at

issue in his room at the Bostonian and in the presence of two

witnesses and Attorney McWilliams. The will devised $1,000 to

the church and the decedent's currency collection, vehicles, and

real estate, if any, to Chetwynd. After those distributions,

one-quarter of the remainder of the estate was left to the

Madores and three-quarters to Chetwynd. The will also appointed

Chetwynd as personal representative of the estate. On the same

day, the decedent executed another springing durable power of

attorney (2017 POA) that was identical to the 2016 POA.

Chetwynd brought the decedent's checkbook to the Bostonian that

day; the decedent did not fill out but did sign the check for

McWilliams's services. McWilliams provided Chetwynd with

electronic copies of the will and the 2017 POA, but Chetwynd did

not tell the Madores that the decedent had executed a new will

at that time.

5 The decedent also executed two earlier wills, in 2011 and
2012, that also nominated Attorney Leahy as executor. The 2011
will devised all of the decedent's property to the Quincy
Memorial Church of Wollaston. The prior 2012 will included the
same bequests as the subsequent 2012 will except that the
bequest to the church was limited to use for maintenance, care,
repair, and improvement of its building and grounds.

8
4. Decedent's care. The decedent was discharged from the

Bostonian in February 2017, and required twenty-four hour care.

This care was provided by Chetwynd, his sister, 6 his girlfriend,

and healthcare aides from an agency. The caregivers were paid

using the decedent's funds, with Chetwynd's sister and

girlfriend, who had no recent home healthcare experience,

receiving the same hourly rate as the healthcare aides.

Chetwynd was not paid for providing care but needed a place to

stay and lived with the decedent without paying rent or

contributing to utilities for a period of time. 7 During this

time, Chetwynd used the decedent's debit card to purchase

furniture for the apartment. 8 Chetwynd also used his authority

under the POAs to replace a rug in the decedent's apartment,

even though he never received a written certification from a

doctor that the decedent was incapable of attending to his

finances.

6 A different sister than the one who worked at the
Bostonian.

7 Chetwynd was going through a divorce at the time and had
moved out of his marital home.

8 Chetwynd also installed video cameras in the decedent's
apartment. At one point, Chetwynd confronted an employee of the
apartment complex after learning from video footage that she had
asked the decedent whether he ever was repaid for the loan to
Chetwynd's boss.

9
Chetwynd eventually moved out of the decedent's apartment

and into an apartment owned by a friend. The decedent's health

continued to decline and he again was admitted to the hospital

followed by another stay at the Bostonian. The decedent

returned to his apartment, where he began to receive hospice

care in addition to twenty-four hour care. Chetwynd did not

inform the Madores that the decedent was receiving hospice care.

Thereafter, while the decedent was receiving hospice care,

Chetwynd set up online transfers between the decedent's

investment account and the decedent's checking account in order

to pay for the decedent's expenses. Chetwynd also requested

that Attorney McWilliams prepare a personal loan agreement for

him to borrow money from the decedent to establish a new

automotive business. McWilliams never reviewed that agreement

with the decedent, but the decedent and Chetwynd executed the

loan agreement in August 2017. Pursuant to the loan agreement,

Chetwynd borrowed $40,000 from the decedent; the note became

payable on January 1, 2019, and bore an interest rate of less

than one percent. Chetwynd never repaid the decedent or his

estate for that loan.

While in hospice care, the decedent moved into Chetwynd's

apartment from late September 2017 until his death that

December. After the decedent moved in, Chetwynd's landlord (and

10
friend) increased the monthly rent from $800 to $2,000. 9

Chetwynd paid that monthly rent with checks from the decedent's

checking account that Chetwynd signed as "POA."

A month before the decedent passed away, the Madores asked

Chetwynd about the decedent's expenses and estate plan.

Chetwynd informed David that the decedent had changed his estate

plan and stated that David was "in the will." Chetwynd did not

tell the Madores that Chetwynd was the primary beneficiary of

the will or that he recently had borrowed $40,000 from the

decedent. During this conversation, David learned that the

decedent's cost of care was $4,000 per month. This information

concerned David because the decedent always had been frugal and

David previously understood that the decedent was receiving care

at no cost.

5. Present action. The decedent passed away on December

2, 2017. The following month, Chetwynd filed a petition for

formal probate of the 2017 will. Donna filed a notice of

appearance and objection supported by an affidavit. A seven-day

trial ensued. At the beginning of the sixth day of trial, the

judge announced her finding that Chetwynd bore the burden of

proving that the will was not the product of undue influence

because Chetwynd was in a fiduciary relationship with the

9 Chetwynd was unemployed at the time because the car care
center recently had closed.

11
decedent at the time the will was executed. After the trial,

the judge issued detailed findings of fact and conclusions of

law. The judge explained that the 2016 POA created a fiduciary

relationship such that Chetwynd bore the burden of proof, and

ultimately found that the will was the product of undue

influence. A decree entered denying Chetwynd's petition for

formal probate of the will. This appeal followed.

Discussion. "[W]e do not set aside a judge's findings of

fact unless they are plainly wrong . . . or clearly erroneous"

(quotations omitted). Rood v. Newberg, 48 Mass. App. Ct. 185,

190 (1999). "A finding [of fact] is 'clearly erroneous' when

although there is evidence to support it, the reviewing court on

the entire evidence is left with the definite and firm

conviction that a mistake has been committed" (quotation

omitted). Matter of the Estate of Moretti, 69 Mass. App. Ct.

642, 651 (2007).

"In applying this standard, the judge's assessment of the
quality of the testimony is entitled to our considerable
respect because it is the trial judge who, by virtue of
[her] firsthand view of the presentation of evidence, is in
the best position to judge the weight and credibility of
the evidence" (quotation omitted).

Id.

Chetwynd challenges the judge's allocation of the burden of

proof on the issue of undue influence as well as the sufficiency

12
of the evidence supporting the finding of undue influence. We

discuss each in turn.

1. Burden of proof. The party contesting the validity of

a will ordinarily bears the burden of proving undue influence.

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

"However, in cases involving a fiduciary, the fiduciary who

benefits in a transaction with the person for whom he is a

fiduciary bears the burden of establishing that the transaction

did not violate his obligations" (quotation omitted). Matter of

the Estate of Urban, 102 Mass. App. Ct. 284, 290 (2023). A

fiduciary must prove the absence of undue influence only where

he has taken part in the transaction at issue. See id.

"Although some fiduciary relationships, such as that

between guardian and ward, are created by law, others arise from

the nature of the parties' interactions" (quotation omitted).

Germain v. Girard, 72 Mass. App. Ct. 409, 413 (2008). "Where

the fiduciary relationship is not one created by law, the

existence of the relationship ordinarily is a mixed question of

law and fact for which the party asserting the relationship

bears the burden" (quotation omitted). Id.

Chetwynd argues that he was not in a fiduciary relationship

with the decedent because his authority to act under the 2016

and 2017 POAs only was triggered on receipt of written

certification from a physician and no such certification was

13
ever obtained. This argument is belied by the fact that

Chetwynd admitted to exercising authority under the POAs

beginning in March 2017. Although Chetwynd did not exercise

that purported authority until two months after the will was

executed, the judge was free to rely on the fact that Chetwynd

treated the POA as effective without the requisite certification

from a physician when deciding whether Chetwynd was a fiduciary

at the time the will was executed. For this reason, we discern

no error in the judge's finding that Chetwynd was a fiduciary. 10

Moreover, other facts support the conclusion that Chetwynd

was a fiduciary. By January 2017, the decedent had been reliant

on Chetwynd for transportation for two and one-half years,

Chetwynd held title to a new car paid for by the decedent, the

decedent made a loan to Chetwynd's boss, Chetwynd assisted the

decedent in writing checks, Chetwynd had access to and used the

decedent's debit card, Chetwynd had access to the decedent's

apartment and his personal documents like his 2012 will, the

decedent had named Chetwynd as his healthcare proxy, and

Chetwynd made the arrangements for the decedent to execute the

new estate plan with Chetwynd's attorney of choice. See UBS

10Given the facts of this case, we do not pass on the issue
whether a springing power of attorney always creates a fiduciary
relationship at the moment of execution or whether that
relationship arises only after the triggering event specified in
the power of attorney occurs.

14
Fin. Servs., Inc. v. Aliberti, 483 Mass. 396, 406 (2019)

(fiduciary relationship arises where one is dependent on

another's judgment in business affairs or property matters).

See also Germain, 72 Mass. App. Ct. at 413 (fiduciary

relationship existed where son-in-law managed decedent's

household affairs and expenses for part of year, and oversaw

preparation of will due to decedent's failing health). Contrast

Erb v. Lee, 13 Mass. App. Ct. 120, 125 (1982) (mere fact,

without more, that individual was decedent's "friend and

housekeeper" insufficient to "rise to the level of a

fiduciary").

Chetwynd also took part in the decedent's estate planning

and benefitted from it. Chetwynd was pivotal in the decedent's

execution of the 2017 will -- he selected Attorney McWilliams to

handle the estate plans, told her that the decedent wanted to

add Chetwynd as a beneficiary, provided her with the 2012 will,

and coordinated payment for her services from the decedent's

account. Chetwynd also played an important role in the

decedent's financial affairs and decisions about his property,

including when he was in the hospital and the Bostonian, as

described above. See Matter of the Estate of Moretti, 69 Mass.

App. Ct. at 652 (influence over decedent's decisions regarding

property relevant to determining whether fiduciary took part in

transaction). Finally, there is no doubt that Chetwynd stood to

15
benefit from the execution of the will. The prior will left

nothing to Chetwynd; he was the primary beneficiary under the

new will and stood to inherit more than $250,000. Accordingly,

the judge properly allocated the burden of proof to Chetwynd.

2. Sufficiency. "Undue influence . . . creates a

situation where the victim's own free will is destroyed or

overcome such that what he does, his action, is contrary to his

true desire and free will." Howe v. Palmer, 80 Mass. App. Ct.

736, 740 (2011).

"Four considerations are usually present in a case in which
a supportable finding of undue influence has been made.
These involve showings 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."

Matter of the Estate of Moretti, 69 Mass. App. Ct. at 654–655,

quoting Heinrich v. Silvernail, 23 Mass. App. Ct. 218, 223

(1986). A fiduciary generally can meet the burden of proof by

showing that the principal made the bequest with the advice of

independent counsel. See Matter of the Estate of Urban, 102

Mass. App. Ct. at 291.

a. Independent legal counsel. Chetwynd first argues that

he satisfied his burden of proof because the decedent received

independent legal advice from Attorney McWilliams prior to

executing the will. While the trial judge did not make an

16
explicit finding on the issue, the judge's subsidiary findings

support the conclusion that that McWilliams did not provide

independent legal counsel. See Germain, 72 Mass. App. Ct. at

413 (subsidiary facts established existence of fiduciary duty in

absence of express finding). The judge found that Chetwynd

chose to reach out to his own attorney contacts instead of the

decedent's former estate planning attorney, Attorney Leahy, with

whom the decedent had had a professional relationship since at

least 2002. Notably, the judge also found that Chetwynd

selected McWilliams to provide estate planning advice to the

decedent because "he knew that, due to their pre-existing

relationship, she would not question [Chetwynd's]

representations to her regarding the [d]ecedent's desired estate

plans." See Matter of the Estate of Moretti, 69 Mass. App. Ct.

at 643-644 (to satisfy fiduciary's burden, "the legal

representation provided must be truly independent, with the

lawyer's loyalty flowing to the client testator alone").

Chetwynd was the primary person in communication with

Attorney McWilliams. Indeed, he was the one who notified

McWilliams that the decedent wanted to add Chetwynd as a

beneficiary. Chetwynd and McWilliams also "discussed and agreed

upon" the date that the will would be executed, with Chetwynd

agreeing to bring the decedent's checkbook to the Bostonian to

ensure McWilliams was paid that day. Moreover, despite the fact

17
that McWilliams met with the decedent alone on two occasions

before the will's execution, the will included certain obvious

mistakes that called into question how carefully it was reviewed

with the decedent -- i.e., the decedent's last name was spelled

incorrectly in the first line of the will and his town of

residence was incorrect on the third page. 11

Attorney McWilliams also engaged in other conduct that

supported an inference that she did not have undivided loyalty

to the decedent. She prepared the original POA in 2016 before

she even met with the decedent, set up a financial relationship

with the decedent such that she managed his investments,

prepared an estate plan initially on Chetwynd's request, and

later drafted the personal loan agreement for Chetwynd that she

never reviewed with the decedent. 12 When taken together, this

evidence was sufficient to show that Chetwynd intruded into the

relationship between McWilliams and the decedent, such that he

undermined the independence of the legal representation received

with respect to the will. Contrast Matter of the Estate of

Urban, 102 Mass. App. Ct. at 291.

11The judge did not credit all of McWilliams's trial
testimony and McWilliams kept no notes from her meetings with
the decedent.

12The judge expressly found that the decedent did not
receive independent legal advice prior to executing the
agreement to lend Chetwynd $40,000.

18
b. Finding of undue influence. Ample evidence was

presented to support the judge's findings on all four factors of

the undue influence claim. The disposition of the majority of

the estate to a person whom the decedent had known for a few

years was unnatural. Although Chetwynd had helped the decedent

prior to the execution of the will, the decedent had given

Chetwynd sole use of a brand new vehicle at no cost other than

gas expenses in exchange for transportation assistance. The

decedent through his earlier wills had shown a desire to make a

large bequest to his church. The decedent had stopped attending

church regularly by 2017, but he still regarded aspects of his

faith as "important" at the time he was admitted to the

Bostonian. See Matter of the Estate of Moretti, 69 Mass. App.

Ct. at 657 ("sudden and dramatic change" of estate plans in

favor of new acquaintance evidence of unnatural distribution).

Contrast Heinrich, 23 Mass. App. Ct. at 224 (niece not natural

object of uncle's affection where there had been virtually no

communication between them for years).

The decedent also was susceptible to undue influence due to

his reliance on Chetwynd for transportation and his failing

health. The decedent was in his mid- to late eighties, and his

mental and physical health had declined over the three-year

period that he knew Chetwynd. By the time that the decedent

executed the will, he had memory problems and dementia, and

19
recently had been diagnosed with pneumonia and congestive heart

failure. As a result, he had been in the hospital and in the

Bostonian in the month prior. Although the decedent was able to

live alone prior to this hospital admission, he required twenty-

four hour care following his discharge until he passed away.

See Heinrich, 23 Mass. App. Ct. at 223 (decedent susceptible to

undue influence given age, weakened physical condition, and

total dependency on others).

The findings also support the conclusion that Chetwynd had

an opportunity to exercise undue influence over the decedent and

used the opportunity to procure his status as the primary

beneficiary under the will. The judge found, and the record

supports, that Chetwynd "gave [the Madores] carefully curated

updates about the [d]ecedent, sharing health and outing related

updates," without disclosing the financial benefits received by

Chetwynd. The judge also found that Chetwynd carefully

documented his activities with the decedent in photographs, "to

avoid arousing suspicion in the [Madores] and to defeat any

future allegations that [Chetwynd] should not have been the

primary beneficiary." In his communications with the Madores,

Chetwynd did not disclose the $5,000 loan to his boss, the car

agreement that essentially gifted the Challenger to Chetwynd, or

the plans to execute a new will naming Chetwynd as the primary

beneficiary. See Matter of the Estate of Sharis, 83 Mass. App.

20
Ct. 839, 844 (2013) ("aura of secrecy" around estate planning

supported finding of undue influence).

The judge further found that Chetwynd took steps to insert

himself into the decedent's life over the three years prior to

the execution of the will. The decedent came to rely on

Chetwynd for transportation, socialization, and advice. Once

Chetwynd had gained the decedent's trust, Chetwynd contacted his

own acquaintances to draft various agreements and estate

planning documents for Chetwynd's own benefit. This evidence

was sufficient to support the judge's finding of undue

influence.

Chetwynd also argues that the judge's finding must be set

aside because she improperly relied on events occurring after

the execution of the will in her analysis. Of course undue

influence must be operative at the time that the will is

executed even if "an objective observer at the execution could

detect no indication of it." Erb, 13 Mass. App. Ct. at 125.

However, "[n]either direct evidence nor evidence of

appropriation of assets for personal use before death was

required to support an inference of undue influence" (emphasis

added). Matter of the Estate of Sharis, 83 Mass. App. Ct. at

846. That Chetwynd used the decedent's assets for his own

personal gain and that of his friends and family -- including

the $40,000 loan that the decedent made without the benefit of

21
independent legal counsel and that has never been

repaid -- supports the conclusion that undue influence was at

play even in the months before that conduct. See id. at 845-846

(fiduciary preserving assets bequeathed to him after execution

of will and depleting assets bequeathed to others evidence of

undue influence). Even excluding Chetwynd's conduct postdating

the execution of the will, Chetwynd bore the burden of proving

the absence of undue influence and the judge's finding that he

failed to carry that burden was not clear error. 13

Decree entered April 13,
2020, affirmed.

By the Court (Vuono, Milkey &
Hand, JJ. 14),

Assistant Clerk

Entered: May 10, 2024.

13 Donna's request for attorney's fees is denied.

14 The panelists are listed in order of seniority.

22