A Cain and Abel Story

Bob Stetson:     In July 2011, Antoine Haddad, an immigrant from Lebanon and father of three sons, executed an estate plan to benefit his son, Marcel, to the exclusion of his sons, Joseph and Alain.  Marcel was Antoine’s primary caregiver and, unlike his other two sons, Marcel was not married and did not have children.  In Antoine’s eyes, Joseph and Alain would be taken care of after he was gone because of their families; this estate plan was Antoine’s way of taking care of his son, Marcel.  Antoine died six years later in 2017.

Ordinarily, the estate planning documents would control and few questions would be asked about the execution of the plan.  However, Antoine died of Alzheimer’s disease and he actually started to experience cognitive decline before he executed his estate plan in 2011.    The excluded sons, Joseph and Alain, brought a challenge in Superior Court to invalidate the estate plans based primarily on an incapacity theory; in other words, that Antoine lacked the mental ability to knowingly prepare his estate plan as a matter of law. 

Following a bench trial, a Massachusetts Superior Court judge determined that Antoine indeed lacked the requisite mental capacity to execute his estate plans and invalidated the estate plans that favored Marcel.

This is a tale as old as time.  A brotherly squabble reminiscent of Cain v. Abel.  Here, Cain vanquished the favored son Abel at trial.  But was Able resurrected on Appeal?  This is Haddad v. Haddad. 

Welcome to “Legal Judg(e)ments” where we tackle litigation and trial strategy by analyzing and talking about real legal cases.  I’m Bob Stetson – a Boston-based trial lawyer at Bernkopf Goodman. 

Today we’re examining a real-life Cain v. Abel case: Haddad v. Haddad.

With me today is Jordan Shapiro, a litigator and trial lawyer and author of the extremely popular Massachusetts Practice two-part volume on Creditor’s Rights.  Jordan represented the Abel in this story on appeal, Marcel Haddad.  Welcome, Jordan.  Thanks for joining. 

Jordan Shapiro: I’m glad to be here. Thanks for the invitation.

Bob:      So, let’s start at the end – let’s start with the appeals court decision entered in January of this year.  Almost four years to the day after Antoine, the patriarch of the family, died, the Massachusetts Appeals Court reversed the trial court’s decision and reinstated the 2011 estate plans in favor of your client, Marcel Haddad.  The basic principle underlying the decision was the idea that progressive cognitive decline is insufficient in and of itself to prove testamentary incapacity – in other words, to invalidate the estate plan.  But, you were the appellant here; you were fighting an uphill battle here trying to undo a trial verdict and get that result.  So, Jordan, what did you see in this case that the trial judge missed?

Jordan: Oh, well, a lot of issues we had that we raised on the appeal of the appeals court latched on to one of the issues that was the main focus of this case. That I think is why this case is such an important decision that we haven’t had something like this before. And that was that at the time of the execution of the estate planning documents is the key to a decision as to whether or not there is capacity of an individual to sign a legal document by his lawyer. And so, unfortunately for the other side at the trial, they never asked their very, very astute, and capable doctor what was the condition of my client, excuse me, of the decedent. What was the mental capacity of the decedent at the time the wills and the estate planning documents were being signed? And as a result of that fatal flaw, I was able to get the appeals court to agree with our position and reverse the lower court. 

Bob:      Let’s nail down on that a bit. This doctor that you mentioned, he’s identified in the decision as Dr. Chervin. Dr. Chervin was a treating physician of Antoine, but only after the estate plans were executed.  But during the litigation, he sort of doubled as an expert, and at least from what I could tell in the decision, he attempted to opine that Antoine lacked the mental capacity in 2011. How did you address Dr.Chervin’s seemingly damaging testimony and ultimately overcome that on appeal?

Jordan: Well, Dr. Chervin’s testimony was somewhat uncertain as to what the extent of Antoine’s mental capacity was in 2011, and what he testified to and what the courts wrote in the decision was the Chervin was able to say that he was mentally declining and that he had a few days of confusion, of delusion, of failing memory. But he was unable to say the extent to which it disables him from being able to understand the nature of the will, the extent of the will, what the purpose of the will was. And that issue was not dealt with by the doctor as of the June and July 11, 2011 period that was so important for the focus of the court. At least the appeals court thought that was the critical time period that we had to know what was his exact mental capacity at that time. And because Dr. Chervin had no opinion about that, because he said, as the court found, the key to this decision is that someone may be perfectly lucid on one moment and totally without any capacity at all, another moment. And so that’s one of the important lines. I can actually probably open that line from the court’s decision. They said, “it is the moment of execution that counts, despite periods of confusion, delusion, and incapacity, the test data can have capacity to execute these documents.”  Again, that was an issue about the language of these files. But that that’s the key factor, is it’s the moment of execution. And so what lawyers do when I have some suggestions if you’re asking me about what I think lawyers should do and can do to avoid the problems of, unfortunately, the attorney, Karen Sahney, did not do a great job. As you saw the decision, the appeals court agreed with the lower court judges that his opinions should be discounted.

Bob:      So I do want to get to the practice pointer, but for the listeners, I just want to give a sense of what Dr. Chervin did testify to. As I mentioned before, he was the treating physician of Antoine, although not at the time of the execution, as you pointed out. He diagnosed Antoine with dementia. He had records medical records that dated back to around the time period of the execution. He had presumably all sorts of facts and testimony that evidence Antoine’s cognitive decline before 2011 when he executed the estate plans.

And interestingly, he had an MRI from 2011 that showed some evidence of physical changes in Antoine’s brain before he executed the will. And so why, and maybe this feeds into the practice point that you are about to make, but why was that insufficient to support or at least provide some evidence of incapacity under these circumstances?

Jordan: Well, those notes and records that you examined from 2010 /11, again, were not as a result of his personal examination. So he’s inferring and deducing from those records what was his appearance of the decline of his mental capacity. What was really helpful to us was the nurse’s notes that were on those records that showed that he didn’t need to have anybody interpreting for him, that he understood what was going on. He understood his medical treatment in 2010, and he understood the 2011. He was able to contact family and communicate with them. And they understood him, and he understood them and, he was performing. He was going to work every day himself, taking the train without anybody helping him. And so all of those factors led us to have some doubt about whether Dr. Chervin’s inferences were as good as the nurse’s notes, who actually said, “We talked to him every day in the hospital, and he’s a pretty smart guy.”

Bob:      So it was it was the direct testimony or the direct evidence, I should say, the actual evidence coming from the nurses that really was just overwhelming supportive of capacity as opposed to Dr. Chervin testimony, which was much after the fact.

Jordan: I think that’s I think that’s true that the, again, family testified about 2010/11, they saw signs of forgetfulness. They saw signs that he would make mistakes, that he couldn’t identify what day of the week it was on one day, and he couldn’t tell what time it is on another day.

Generally, he was functioning as an independent person who showed that he was able to care for himself. It was able to communicate well in Arabic language. And interesting that part of the case is I don’t see too many cases in the in my research that deal with someone who can’t talk English to the lawyer who is doing the estate plan, so that to me was kind of scary.

But the court made the specific finding that a person who can’t talk the language of the lawyer can still have capacity to understand, especially with the lawyer says they had discussions with him on the day that he signed the will. Again, the lawyer had lots of flaws in his testimony.

And I do want to make sure that we do tell your listeners about my suggestions because I have another case right now in which I have to deal with knowing that there was going there was going to be a will contest, and there is one, and it’s pending, and we already had a hearing on it before a judge. There’s lots that lawyers can do that; unfortunately, Attorney Clarasany didn’t do that. He could have and should have done that. I love to tell people my suggestions are what a lawyer, what a good lawyer does to avoid this whole problem. Because if he was prepared and had good notes and records of the meetings of the events with a client, this case could have been a slam dunk for those who knew that at the moment of execution is the critical time.

Bob:      There are so many different things to talk about within this case. And as I had mentioned before the interview, I’ve already this… this decision came down in January, and I have already cited it four possibly five times. But why don’t we just jump right into those practice pointers? They are fresh on your mind. 

Jordan: They are, and there is a lot a lawyer can do. And so, to me, the first thing that the lawyer needs to do is to decide whether or not it’s likely to have a contest. I don’t do it in every case, but you should be able to decide if there is one family member who’s receiving all the assets and all the other family members are going to be removed, as had happened in this particular case, forever, and wants to stay divided everything equally between all children. But as he was failing then, my client was the sole, as you indicated in your opening remarks; he was the primary caretaker.

But the important thing for me is to do what I did in my last case.  At the time of the execution of the documents by me with two witnesses, I tape-recorded the pre-signing of the documents interview. That’s the first thing. I had a tape recorder of the recordings so no one could deny that this witness was competent, understood what was going on, and was able to execute a will.

So the tape recording to me is a good thing. Now, I’m aware that some lawyers will spend the money and actually have a video recording done of the entire execution of a will. I think that’s great for the gazillionaire. But for the ordinary person on the street, I think the tape recording is very good. That’s part one. Before you do the tape recording, you have to do some research.

And the research that I did was to see what other lawyers had asked people who are executing wills to show that they had mental capacity: your name, your address, the names of your children, what do you own, how much is in your bank, what are your general assets, why are you choosing one person rather than another? A lot of questions that I had. I had about 20 minutes of questions that I had learned from doing research that you have to ask a person to show about mental capacity: what day it is, who’s the president of the United States, a whole bunch of those questions. What time is it? All those things to show the person on the stand and said, I thought an important part of this case that I’m waiting for a decision on was that the… that the witness verbalized why she was cutting out two of her children, one of whom was in jail, that hadn’t communicated with her until near her death.

And the other one, I had visited her recently, and my client had to get a restraining order to keep that child away. And so, we have a very strong case. But I do think the other thing is to have witnesses that spend a little time during the execution, that’s also recorded, where she’s talking to the witnesses a little bit. So the witness has got the sense to be able to testify as to what the client’s capacity appeared to be, that she understood what was going on, that she knew what her assets were. She knew who her family is she knew what was going on around her, and she had good reasons to leave that particular asset.

Interestingly, in this particular case, she cut out her children and left all of her assets to a tenant in her house. So that’s going to be a case that I’m sure you’re going to read about someday. But you do have to do that. And the practical issue from this case, I think, is really important is that the trial lawyer, in this case, was named Steve Kramer of Lexington, did a great job trying this case.

The only appearance of omission was that he didn’t serve expert interrogatories. That’s really important in these cases – to serve expert interrogatories. But he did a good job because the rule 30B says that at the pre-trial conference, you have to disclose who your experts are, and it’s almost like expert interrogatories. The other side didn’t do that. Actually talking to Attorney Kramer, he said he was “ambushed” by the other lawyers coming up two weeks in advance of giving them expert answers or interrogative, so he didn’t have a chance to prepare. Those are my practical suggestions that I think you really have to prepare so that everything can be preserved for the court. Again, unfortunately, Attorney Carasoni had a way of expressing things that I think, and again, you didn’t see the transcript of his testimony, but he said, “I think I did that” and “Really, I’m not sure who was present while the documents, while the estate planning documents were being signed.” He didn’t know who was there. I mean, he had the documents or witness notarized. He had trusts that were not witnessed or notarized. So, I mean and so having careful notes, he didn’t appear to have careful notes. Even though I was told that at the deposition, he was great at the trial, the judge just totally set aside his testimony, didn’t give it any credibility. And again, he didn’t do anything to do a permanent record of the execution; although he could have anticipated the execution, he could have anticipated the will contest in this case. And I think that’s for the lawyers to be aware of that you have to be reasonably alert to a probable will contest and take extra steps.

Bob:      I do want to come back… so one of the reasons that this attorney’s testimony was discredited by the Superior Court judge and that finding was in the decision on appeal, was this issue that the attorney testified that he spoke to Antoine in English and that Antoine understood everything. But as you pointed out, Antoine only spoke Arabic, and he didn’t understand English, and he required extensive translation.

Jordan: That’s not exactly correct. He didn’t only speak Arabic, he spoke Arabic only to his family, but he was able to communicate in English at work, where we worked every day doing jewelry work in a Boston location. And he was able to communicate with the nurses. That was in evidence. And he was able to communicate in such a way that the attorney felt he understood what was going on. And that’s why I think the words and the decision that indicated that the court felt that even though it’s not the primary language of the client, if you are able to communicate reasonably well, then the capacity is going to be sustained.

Bob:      Let’s talk about that a little bit. It was an interesting note in the decision that the ability to understand and comprehend the document in a certain language did not go to the incapacity issue, which was the only substantive issue addressed on appeal. But, it could potentially go to whether or not the testator understood the nature of the documents and comprehended the documents.

How does that factor into these practice pointers that you just mentioned and just in estate planning going forward? What are your thoughts there?

Jordan: Well, again, I’ve been a lawyer since 1966, and so I’ve been doing lots of these estate plans that every once in a while I’ll have someone come in and they get the lawyer’s judgment is important, and I will actually have the will written in their language and in English, and I will execute it to legal documents, one in their language and one in mine and I’ll have an interpreter. And again, the value of the recording is priceless in those cases. I’ve never had a contest involving somebody who did not speak English well enough that I felt I could understand and trust that the will would be upheld in the contest.

But again, the lawyers do have to think about the options that actually bring in somebody to interpret it, to rewrite the entire document. Right now, I’m working with a Brazilian group doing their bylaws, and they’re doing them in English and then in Spanish and Portuguese, whichever that’s doing. And so that’s the secret to succeeding with these things is I suggest that a careful lawyer, which expects a contest, might want to give a lot of thought to translating the language of the client.

Bob:      And there again, I just as you were saying, the practice pointer, about doing a recording. I just have to imagine that having a recording would address the translation issue. If somebody appeared to understand if there was a translation, if they were able to articulate during that recording that they understood the nature of the assets, the nature of the bequest, et cetera and so forth, that that would be incredible, definitive evidence of incapacity, of comprehension of the documents.

The one point that I wanted to make as you were talking that I was thinking about is everybody’s got these handy little phones these days. You can you can buy a little tripod, and I think for a very inexpensive amount, you probably could actually get to get an audio and a visual of the entire will process, an a estate process. I just think that is just unbelievable advice and really, really could resolve probably nine out of ten, maybe more, will contests which are based on undue influence incapacity, comprehension issues – all of the things that you saw in Haddad.

Jordan: In this case, even though the appeals court couldn’t deal with the judge’s decision, that is, it is published on Westlaw, the judge’s, the lower court decision was kind of interesting because, at the trial, they also dealt with the undue influence. And it was very important that the judge realized that a parent who is relying upon one child as a caretaker is not doing something that demonstrates that there was undue influence when the parent leaves all their assets to the latest caretaker. It doesn’t mean that that individual did something to cause the parent to choose that child rather than the others. And in this case, it’s interesting because my client, Marcel, did not own his own home. That’s what the big deal was in this case, was that there was a piece of property that was worth a lot of money that Marcel inherited as compared to the other two. And another suggestion that I want to make of the lawyers, every once in a while, I will have a client who will tell me I’m going to leave out my other children. And the reason I’m leaving them out is because they are very wealthy. And so I say, all right, well, I’m going to put into the will that I’m leaving this other children out, not because I do not love them, but because they have sufficient assets that they don’t need any more money. And that is sometimes a peaceful bringing about so that the families aren’t fighting and at each other’s throats to say, “you tricked him because he didn’t love me anymore and he loved all of you because you were forcing him to be dependent upon you and you made him leave all the assets to you rather than to me.”

And that was something that I think is helpful to put into estate planning documents as to why to write it right into the document, why you are leaving out the other children. That wasn’t done either in this case, and it might have helped. I don’t know that it would, but it would certainly give those children some peace to know that the parent was not leaving them out.

I had a situation where when I was very young.  A very wealthy child was left out, and he just was so upset that the father didn’t leave a piece of him for this child to enjoy. And that was very upsetting that he didn’t know why he was left out. He thought the father didn’t love him. Like, what have, you know, want to leave something to be remembered by. And so that’s what I learned very early along, to always put into the estate planning documents some reasons why you are choosing one over the other. And that sometimes helps to avoid problems

Bob:      Just another terrific piece of advice. I mean, so many of these will contests come down to emotion.

Jordan: I got to tell you one other thing for lawyers that I think one of the most profitable kinds of cases are these cases.  Because when you have family infighting or the other kind of cases as neighbors fighting with each other, they will fight to the death to prove they’re right. And they don’t care how much it costs them. They will go to the ends of the earth, go bankrupt, and broke to pay their lawyer’s fee to teach the other side a lesson. And that is an awful thing that is hard to deal with. But for the lawyer, it’s a great source of income.

Bob:      Thank you again. Just an important case, and I really appreciated you taking the time to provide those practice pointers. I think that could result in a monumental shift and really help estate planners avoid these types of will contests going forward. Now, I do want to shift gears because we have a bonus here today for our listeners. Jordan, as you might imagine, has been quite active in his litigation practice and in particular in his appellate practice and has another very important appeals case that he wanted to discuss briefly on the show. The case is Hartog Baer & Hand v. Clarke. It’s a law firm versus Clarke.

This is an appeals court decision that came down in April this year in which the appeals court essentially held that the Homestead Act does not protect a residence from the levy of an execution on a judgment so long as the party seeking to collect on its judgment formally and I’m putting air quotes on this, “suspends the collection process at the time.” That’s known as a levy and suspension. I believe you addressed it in and your creditor’s rights volumes. Jordan, can you give us your perspective on this case?

Jordan: Well, I applied for a further appellate review to the Supreme Court because I think that the appeals court is mistaken. We’ve taken that position in our books for the last ten years, and we think we were right. But what the court focused on was not the language of the statute, which is troublesome to us and what is really the primary basis of the appeal, but the court focused upon was the of the neglect of the creditor to try to take possession of the home that’s protected by a homestead. And so, the court had no problem with allowing the creditor to levy on a judgment.  Again, the Homestead Act specifically includes the word “attachment,” is exempt from the ability of a creditor to put a lien by means of an attachment.

And so, in this particular case, the attorney before judgment attempted to get an attachment, and it was denied. It was appealed when the denial of the when the attachment motion to attach was denied by the superior court. The attorney appealed to the single justice who confirmed the lower court that the attachment protected this property that did not have half a million dollars in equity. That’s the floor is a property has less than a half a million equity. The creditor is not supposed to be able to put a lien on it. That will impair the ability of the debtor to be able to refinance his house or sell his house. And even there’s a protection in the homestead law that deals with if he were to sell the house, you would have to buy another house or invest that money in another house within a year. But that’s really not the issue in this case.

The issue in the case is the judges in the appeals court believe that as long as the creditor doesn’t try to do anything to interfere with possession of the property by the owner, that it was OK. And they wanted to be sure that in the event that down the road, the property went up and valued over a half a million dollars, and the creditor wasn’t aware that the creditor had a secured interest in the property based upon the judgment that could then be followed through in the event that the real estate again increased in value to more than half a million dollars, they didn’t want the force the creditor, why you ask very eloquently ask the appeals court that how does he know when the properties are worth more than half a million? He should be able to put a lien on the property today. And what we thought that the whole purpose of the Homestead Act was to avoid the debtor having aggravation and problems and getting rid of a creditor when the obvious value of the property doesn’t have half a million in equity. And that was something that, again, he didn’t want to have to sit back and wait until the house gets to be more than a half a million dollars.  He was looking to, as the court said, fix his priority if the equity exceeds half a million and in the hopes the lien is removed.

That’s the last words of the judgment. And what we say is the court ignores, even though the word attachment is in there, the words execution is also in the exemption. And everybody seems to ignore that. In saying that, “no, you can’t attach.” And what bothers me is if this is carried to an extreme, then why not allow the creditors to attach? Everybody’s house is protected by a homestead as long as they are trying to take possession the with the use and occupancy of the property.

It’s really an awful decision.  Again, for creditors, it’s a great decision.  But it’s an awful decision.  In my own private practice now, a lot of the creditors used to just sit on their attachments and wait until the property gets sold at some point or wait until… but now what they’re doing is they’re levying and suspending. They’re getting judgments levying and suspending.

And so what I’ve done over my lifetime is, a creditors who did get attachments when there’s a homestead. I probably removed a dozen in the last two or three years of attachments that were placed on people’s property, didn’t have equity. And I have the forms in my life how to do that in the event somebody was get rid of an attachment on somebody’s house. And frequently, all the creditors did was they just wanted to get an attachment to the property.

And so nobody, nobody forces… there is an unfair debt collection practice that I also cover, the Fair Debt Collection Practices Act. And even though we tried to get the attorney general and others to impose an unfair debt collection practice, when an attorney attaches property that’s protected by a homestead, that isn’t true yet. So plenty of lawyers can get away with attaching property that debtors sometimes don’t pay any attention to until they either want to sell or refinance it. And they wake up one day, and they say, “oh, my goodness, I got an attachment on the property.” And what they do is they realize they don’t have equity in half a million. They call me up or some other lawyer knows who’s on one of these. I’m very active in the bankruptcy bar. And so, they’ll call me up, or somebody who’s active in the bankruptcy bar, and they’ll move to get rid of the attachment. And every time that’s been allowed, I haven’t lost one of those.  I’ve had probably a dozen of them in the last couple of years. And it’s just a good thing.

But this surprise decision is something that I really, I’m having trouble accepting. And that’s why hopefully, the Supreme Court will tell us that they’re going to take it up. It is a case of first impression, and that’s one of the bases. It is a case that’s emotional. It’s a case that’s wide reaching and a case that has wide effect on the world of creditors and debtors’ rights.

Bob:      There’s just so much to unpack in this decision. Kind of like the Haddad decision. But, you know, you mentioned the text, the language of the homestead statute. And it was interesting; the decision didn’t really focus so much on the text of the statute, as you pointed out.

Jordan: Exactly

Bob:      It really relied more, the court, the appeals court relied more on both the purpose, as you alluded to, they sort of said, well, hey, look, you know, the purpose of this thing is to present to prevent dispossession of the homestead by families that are protected by this act. But I also read sort of that this was a practical decision. And what the appeals court said was, “Well, look, if we don’t put, if we don’t allow creditors to at least levy these executions, even if the equity might not exceed five hundred thousand dollars, well, then what happens when the equity does exceed five hundred thousand dollars? Could another creditor then jump in front of that creditor who has a valid judgment, sort of like, what are we supposed to do here? And that’s, unfortunately, exactly what I think was the thinking of the appeals court. They were dealing with common sense of being practical rather than dealing with what I think is the common sense is first read the law. See what it says.

Interpret the law as it requires your common sense to interpret it rather than dealing with the emotion of a credit or of being deprived of this opportunity to seize a person’s home, whether it could be seized for nonpayment of debt. Rather than doing that, they just bypass the words in the homestead statute that says you can’t do an execution on judgment either.

As you look at the other words, the attachment is plainly there that they apparently, as I fear, is carrying it to an extreme. There’s no reason why they’re not going to just discount the old homestead law and say we’re not going to put any credibility on that law. We and the court, rather, the legislature, got to decide that the Homestead Act is useless and has no meaning at all because people get attached, they can levy.

And as long as they’re not taking possession, how they’re going to uphold whatever the creditor does. And I thought the court was kind of debtor-oriented. Some of them had some experience doing criminal work, and some of these were those that would understand of the rights of the debtor. But this group obviously focused only on what they thought was their common sense of logical result that they came to, which was let the creditor resolve levy judgments as long as they don’t try to seize.

And if the debtor has a problem in refinancing or trying to go to a mortgage, then it’s up to the debtor to contact the creditor, which is aggravation, unnecessary stress, unnecessary of having to deal with a problem of that past that the legislature tried to avoid for people.  It’s just ludicrous; it’s a very, very sad, bad decision. Again, we’ll live and learn to see what the Supreme Court does.

Bob:      Jordan, that’s all the time we have today. Congratulations on a tremendous tremendous victory, and had at best of luck on Hartog Baer. And thank you so much again for your time today.

Jordan: And thank you for the invitation. It was as a pleasure talking with you. 

Bob:      That’s our show. Check out our show notes for more information on the cases discussed today. Also, if you’re involved in an interesting civil case or know about one that you think would be a good fit for the show, please reach out to me directly at rstetson@bg-llp.com, that’s rstetson@bg-llp.com. Thanks for listening.