English Language Proficiency: An Underexplored Appellate Basis to Invalidate an Estate Plan

Issue May/June 2021 June 2021 By Hon. George F. Phelan
Probate Law Section Review
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Hon. George F. Phelan

There is a long-standing presumption in Massachusetts that when a testator signs a will, he/she knows its contents. Richardson v. Richards, 226 Mass. 240 (1917). The presumption is rebuttable. Dobija v. Hopey, 353 Mass. 600 (1968). But there is no Massachusetts case explaining the required standard of proof to overcome the presumption. Barounis v. Barounis and another, 87 Mass. App. Ct. 667 (2015) discussed preponderance of the evidence in other states but also talked about “clear” or “satisfactory” evidence without ever stating whether clear evidence should be the new standard or is a standard. The standard of proof becomes significant when wrestling with issues of English language proficiency in the execution of wills and trusts. According to the Massachusetts Trial Court Office of Language Access (formerly Office of Court Interpreter Services), in-court interpreter services are offered in more than 60 languages (or 113, according to another page on the website) and produced 90,730 interpreter events in FY 2012 (latest data posted to website). Given the influx of immigration, imported cultures and languages to Massachusetts and around the country, language proficient to understand the will’s contents remains a fertile basis for will contests, yet it has rarely been invoked in our appellate decisions.

Haddad & Another v. Haddad, Individually and as Trustee, 99 Mass. App. Ct. 59 (2021) was a Superior Court lawsuit involving three brothers fighting over their father’s estate. Allegations made were fraud, deceit, conversion, unjust enrichment, lack of testamentary capacity in executing the will, and undue influence. In addition to invalidating the will, the plaintiffs also sought an accounting and declaration of a constructive trust. The only theories presented at trial were lack of testamentary capacity and undue influence. The only issue raised on appeal was testamentary capacity. However, there was significant evidence that warranted another basis to invalidate the will: lack of knowledge of its contents where a testator primarily dealt with life in a language other than English.

The testator/father was an immigrant to the United States some 39 years before his death in 2017. He had three sons, two of them were the plaintiffs and the third was the defendant in the case. The defendant/son was single, had always lived in the family home and claimed that he became the testator’s primary caretaker. The testator’s primary and daily language was Arabic, and his English was limited. But he had proficiency to permit him to function to the degree needed for his daily activities and his work as a watch repairman. He needed the translation of his sons for more complicated matters like medical appointments and legal issues.

In 2004, the testator and his three sons together went to an attorney to establish the testator’s estate plan that included a will and a trust to hold the house. Under both instruments, the testator was the sole beneficiary during his lifetime, and other provisions called for the three sons to be equal beneficiaries under both the trust and the will when the testator died. The testator’s health declined after brain surgery in 2010. The defendant/son continued to be the testator’s primary caretaker.

The testator had begun a long, slow health decline. Four months before July 2011, he had surgery on his hip and leg, became more confused and his English at that point was minimal. Hospital notes from March 2011 indicated no evidence of a dementing process, although he performed poorly on a mini mental status examination.

On June 14, 2011, the defendant/son took the testator to meet a lawyer arranged for by the testator’s brother-in-law. The two plaintiff sons were not told. The brother-in-law as well as the defendant/son translated for the testator and the lawyer. The essence of the meeting with the lawyer was to make the defendant/son the sole beneficiary of the testator’s estate plan (a will and an amended trust) as well as personal representative under the will and trustee of the trust. A power of attorney and health care proxy were also discussed, with the defendant/son as agent.

On July 12, 2011, the defendant/son (without the testator’s brother-in-law) transported the testator to the attorney’s office. The attorney asked a series of questions in English and claimed to be satisfied that the testator had the requisite mental state. The will, trust amendment, power of attorney and health care proxy were executed.

Two years later, the primary care physician noted that the testator was having memory issues. On June 14, 2013, nearly two years post-execution, a consulting neurologist concluded that the testator had “profound dementia” and pointed to the results of an EEG showing severely reduced brain transmission. The neurologist was later permitted at trial to interpret brain scans and testify about the testator’s mental health in 2010 and 2011 before the instruments were executed. However, at that time, the neurologist was not the physician treating the testator. The testator died in 2017 at the age of 88.

The Appeals Court emphasized that it was only the date and moment of execution that mattered with respect to capacity. Thus, even hallucinations and delirium weeks before execution of the will are not enough to rebut the presumption of capacity. There was no evidence about capacity on the day of execution, and thus, the presumption of capacity was not rebutted and the plaintiffs did not carry their burden of proof.

The Appeals Court made multiple references to “testamentary” capacity as the applicable standard of proof yet did not differentiate whether a different capacity standard applied to the execution of the trust amendment, power of attorney and health care proxy. Black’s Law Dictionary equates “testamentary” only to instruments disposing of property. Given that the trust in this case appeared to already hold title to the decedent’s house even before the trust amendment was executed, it is curious why the court referred to only one capacity standard as covering the entire “estate plan.” It was unclear from the opinion whether there was other valuable probate property that passed through the will, a material fact given that the trust already owned the decedent’s house.

Now, the language issue: the Appeals Court aptly pointed out that the attorney who drafted the instruments and handled the execution ceremony did not speak the testator’s language, and the defendant/son was not an independent translator. But lack of knowing a will’s contents due to language deficiency does not bear on testamentary capacity, which was the only issue pursued on appeal. The issue of lack of English proficiency was at least viable and may have been the stronger theory of the case to invalidate the will on grounds of improper execution due to lack of knowledge of the will contents.

Indeed, the Appeals Court wrote that “we have no doubt that the judge would have discredited (the attorney’s) testimony that he was able to communicate adequately with (the testator) in English on the date of execution.” The Appeals Court noted that there were not a lot of Massachusetts cases on lack of English proficiency, but in this case, no parties raised as an appeal issue the lack of English proficiency, and thus, there was no evidence to rebut the presumption of proper execution. The Appeals Court pointed to a number of cases, most from states other than Massachusetts. 

Barounis v. Barounis and another, 87 Mass. App. Ct. 667 (2015) was another siblings battle involving competing petitions to probate wills executed five months apart (November 2003 and April 2004) by their father. The contest was tried on undue influence, testamentary capacity and not knowing will content theories. Originally, a 1998 will gave only a nominal sum of money to the daughter, with the remainder to the other two siblings equally.

In 2003, the testator-father asked the daughter to find a Greek-speaking attorney because the testator’s command of English was not good; he had a minimal ability to read English, could not write it and spoke only basic conversational English. In a meeting at the Greek-speaking attorney’s office on Nov. 21, 2003, the attorney spent one and a half hours describing the estate plan (50-plus pages), which included a will and trust. The thrust of the estate plan was that the daughter would receive the entire estate. The attorney explained the effects of the estate plan to the testator, who executed the will and a trust. A few months later, one of the other siblings became aware of the 2003 will.

In 2004, the testator’s longtime accountant recommended a meeting to review the testator’s estate plan because of changes to the estate tax laws. At a meeting during which Greek was spoken, they talked of modifying the 1998 estate plan. The accountant recommended an attorney who did not speak Greek. The attorney procured by the accountant did not meet with the testator prior to drafting the 2004 will as well as other estate planning documents. The attorney relied on the accountant during two separate conversations as to the decedent’s purported dispositive wishes. The attorney included an “in terrorem clause,” which had not been discussed with the testator nor the accountant and had not been instructed by the accountant. The estate plan was 70 pages long, yet neither the accountant nor the non-Greek-speaking attorney reviewed a draft with the testator. The attorney sent out a draft (it was unclear to whom) and received back from an unknown person handwritten corrections in the English language.

At the execution ceremony on April 14, 2004, the non-Greek-speaking attorney met the accountant at the testator’s home. The signing ceremony was about 40 minutes in duration and included income tax returns. The 2004 will and estate plan gave the daughter only a nominal sum of money. Despite not having read the 70-page estate plan, the accountant gave the testator an explanation in Greek of the documents but did not explain to the testator what the dispositive provisions were. The testator signed the 2004 estate plan without reading the will, which contained obvious errors, including misspellings of the names of the children. The attorney spoke only in English, and it was translated by the accountant to the testator. The accountant had provided his own interpretation of the testator’s wishes to the attorney. The attorney’s sole source of information was the accountant. The accountant testified that the discussion in Greek between the accountant and the testator was very simple and did not contain any substantive affirmation of dispositive wishes ending up in the will. One of the other siblings paid the accountant, who kept some of the money, while also giving some to the attorney and $100 to one of the witnesses. The Appeals Court, in affirming the trial court disallowance of the will, accepted the trial judge’s finding that the testator did not read English, could not speak it in a sophisticated way, and was unaware of the contents of the 2004 will.

Dobija v. Estella Hopey and others, 353 Mass. 600 (1968) involved a blind, elderly and widowed testator who, despite speaking primarily Polish, understood English extremely well, according to witnesses’ testimony. The testator executed a will in July 1965, 12 days before her death. There were four witnesses, one of whom was the drafting attorney. The attorney who drafted the will restated it in English in the testator’s presence and testified that she understood English extremely well, and that there was no language problem. The other three witnesses corroborated that testimony. One was a former housekeeper who spoke primarily in Polish to the testator. One of the contestants conceded that the testator’s English was fair. The evidence was not sufficient to rebut the presumption that a person signing a written instrument knows its contents.

Probate counsel should be on alert for what might be many future will petitions or trust litigation where the testator’s/settlor’s primary language is not the English in which the instruments were written. This legitimate issue is often overlooked in favor of the more traditional and tactically tempting grounds of undue influence and lack of testamentary capacity. Counsel must also understand that knowledge of will contents is distinct from testamentary capacity

Hon. George F. Phelan served as a trial judge in the Massachusetts Probate and Family Court from January 2010 to September 2020 and currently sits as a recall judge. He was selected to law re-view at New England School of Law and holds an LLM (tax) from Boston University Law School. He is adjunct faculty at University of Massachusetts Law School, teaching probate, trusts, estate tax and Medicaid planning. He has been a panelist at more than 60 CLEs, including at the Boston Bar Association, Massachusetts Bar Association and Massachusetts Continuing Legal Education. His national publications are (co-author) “The United States and Women’s Rights in Iraq: Legacy Interrupted” in the Women Lawyers Journal, Vol. 97 No. 1 (2012) and “Culture and the Immigrant Experience: Navigating Family Court” in the Journal of the American Academy of Matrimonial Lawyers, Vol. 32 No. 1 (2019). He is a retired Army JAG colonel who received two Bronze Stars and served in Iraq with the U.S. Army 82nd Airborne Division. For his work with Iraqi women’s rights and civil society groups, he received in 2009 from Secretary of State Hillary Clinton the State Department’s annual award for empowering women. Phelan was a non-English-speaking immigrant to the United States.