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
This Opinion is subject to motion for reargument or formal revision before publication. See V.R.A.P. 40
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, ...