Joanne M. Curran, Michael G. Curran, M.D., and Cathleen A. Curran
Building Fund of the United Church of Ludlow, VT, Black River Academy Museum, Ludlow Garden Club, et al.
On Appeal from Superior Court, Windsor Unit, Civil Division Theresa S. DiMauro, J.
John T. Sartore and Stephen J. Soule of Paul Frank Collins P.C., Burlington, for Plaintiffs-Appellants.
Peter F. Langrock, James W. Swift and Michele B. Patton of Langrock Sperry & Wool, LLP, Middlebury, and Andrew C. Boxer and Robert D. Mabey of Ellis Boxer & Blake, Springfield, for Defendants- Appellees /Cross-Appellants.
PRESENT: Reiber, C.J., Dooley, Skoglund and Burgess, JJ., and Zimmerman, Supr. J. (Ret.), Specially Assigned.
¶ 1. Plaintiffs appeal from a judgment based on a jury verdict finding that the testator Phyllis Agan possessed the capacity and free will to execute a trust, leaving sizable bequests to defendants, various nonprofit organizations in the Town of Ludlow, Vermont. Defendants cross-appeal, claiming that the trial court erred in denying their requests for attorney’s fees and prejudgment interest. We affirm.
¶ 2. The background to this dispute may be summarized as follows. Additional material facts will be set forth in the discussion section. For over sixty years, the testator lived with her husband William (“Bill”) Agan in the Town of Ludlow, where both were active in a variety of community organizations and activities. After Bill died, the testator placed her assets into the Phyllis G. Agan Trust in 1993. The original trust beneficiaries were the testator’s brother Michael, sisters Joanne and Patricia, and Joanne’s children (the testator’s niece and nephew) Michael and Cathleen Curran. In 1996, the testator amended the trust to reduce the bequest to Michael Curran, with whom she had a falling out, and to add bequests to three local community organizations: the Building Fund of the United Church of Ludlow, the Black River Academy Museum of Ludlow, and the Black River Valley Senior Center of Ludlow. A third trust amendment in May 2004 deleted Michael Curran as a beneficiary. Additional trust amendments in December 2004, February 2005, and May 2005 variously altered the trustee, successor trustee, and trust account.
¶ 3. Relatives and others who dealt with the testator during the period from 2004 to 2005 observed personality changes and signs of confusion. Her primary care physician diagnosed dementia or organic brain syndrome in June 2004, observed evidence of “ sundowning ” or nighttime confusion in November 2004, and prescribed several medications in 2005 to help arrest the effects of dementia. In December 2004, the testator turned to her longtime friend and neighbor Bob Kirkbride for assistance in helping her pay her bills. In May 2005, the testator contacted an attorney whom she had known for many years, Martin Nitka, to draft a number of additional changes to her trust.
¶ 4. Less than a week after the testator contacted attorney Nitka, the testator’s sister Patricia filed an involuntary guardianship petition supported in part by a letter from her physician, drafted in December 2004, stating that the testator had “some dementia” which could affect her decisionmaking and recommending the appointment of a guardian. The testator, in response, filed a petition to appoint Kirkbride as a voluntary guardian. An evaluation by a court- appointed psychiatrist found that the testator had mild senile dementia but that “overall she show[ ed ] no sign of inability to assist in making decisions about her life, ” had a “fair knowledge of her current business dealings and her financial value, ” and readily agreed on the need for a guardian to provide some help but wished to have a say in who was chosen. Following a hearing in August 2005, Patricia withdrew her petition and the probate court granted the testator’s petition, finding that she understood the nature and consequences of the requested voluntary guardianship.
¶ 5. The testator’s interest in amending the trust remained, and to that end she met with Kirkbride each morning for a period of about a week in August 2005 to discuss proposed changes. Kirkbride recalled that the testator asked him for suggestions for charities to include in the trust as beneficiaries, which he provided; that she included most but not all of the suggestions in a list later provided to attorney Nitka; that she initially planned to exclude her sister Patricia and nephew Michael from the trust but that he tried to persuade her not to do so because they were “family;” and that it was the testator who made the final decisions as to the beneficiaries to include in the amended trust and the amounts they were to receive.
¶ 6. Attorney Nitka recalled that he met with the testator several times to discuss the proposed changes to the trust. It appeared to him that the testator understood who her relatives were, what her assets were, and the choices she was making in amending the trust. He saw nothing to indicate that anyone was influencing the testator’s decisions.
¶ 7. The testator signed the resulting seventh trust amendment in November 2005. Aside from the three local organizations named earlier, the beneficiaries included a number of additional nonprofit organizations in the Town of Ludlow, including the Ludlow Garden Club, the Ludlow Rotary, the Ludlow American Legion Auxiliary, and Black River Good Neighbor Services. The charitable bequests ranged from $100, 000 to $150, 000. The testator’s sister Joanne received fifteen percent of the estate, her nephew Michael received a bequest of $50, 000, and her niece Cathleen received the testator’s home, furnishings, jewelry and other personal property, and was named as the residuary beneficiary.
¶ 8. The testator died in May 2008. The estate at the time was worth in excess of eight million dollars. In April 2009, three members of the testator’s family named as beneficiaries under the seventh amended trust, the testator’s sister Joanne Curran, nephew Michael Curran, and niece Cathleen Curran (plaintiffs), filed a complaint for declaratory relief in superior court naming as defendants the nonprofit organizations receiving bequests under the trust. Plaintiffs sought a declaration that the testator lacked the capacity to execute the seventh trust amendment, and that the amendment was the product of undue influence and was invalid as a result.
¶ 9. An eight-day jury trial was held in February 2012. In addition to the evidence summarized above, plaintiffs called two mental health experts who offered a “retrospective” diagnosis of the testator as suffering from moderate Alzheimer’s disease, a cognitive disability which, in their view, would have undermined her testamentary capacity and rendered her susceptible to undue influence. At the close of plaintiffs’ case, the court found sufficient evidence of “suspicious circumstances” to shift the burden of proof to defendants to show by a preponderance of the evidence that the seventh trust amendment was not the product of undue influence. See Landmark Trust (USA), Inc. v. Goodhue, 172 Vt. 515, 524, 782 A.2d 1219, 1228 (2001) (“Undue influence occurs when the [donor] no longer exercises free will, tainting the resulting transactions.” (quotation omitted)); In re Raedel, 152 Vt. 478, 481, 568 A.2d 331, 333 (1989) (holding that burden of proof “shifts to the proponent of the will” when court finds that the “circumstances connected with the execution of the will are such as the law regards with suspicion” (quotation omitted)). The court relied on the evidence, summarized above, of the testator’s “mental deterioration [during the] period preceding the amendment and thus her susceptibility to undue influence, ” her inability ...