HOWARD POSNER v. ANNA HILTON & Another.

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

23-P-1471

HOWARD POSNER 1

vs.

ANNA HILTON & another. 2

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

This appeal arises from a dispute over the validity of the

beneficiary designations listed on the life insurance policy,

the transfer on death (TOD) account, and the individual

retirement account (IRA) of the late Paul Hilton (decedent).

The decedent's long-term romantic partner, the plaintiff,

Marianne Hilliard, filed a complaint for declaratory judgment,

1During the pendency of this appeal, the plaintiff,
Marianne Hilliard, died. Pursuant to Mass. R. A. P. 30 (a), as
appearing in 481 Mass. 1661 (2019), Howard Posner was
substituted for the plaintiff in his capacity as executor of the
plaintiff's estate.

2James Hilton. Life Insurance Company of North America
(LINA) (labeled as "Cigna Healthcare Inc.") and Fidelity
Brokerage Services LLC (Fidelity) were also named as defendants
in the plaintiff's complaint. The parties later stipulated to
the dismissal of LINA and Fidelity as defendants.
seeking disbursement of those accounts to her as the named

beneficiary. The decedent's children, defendants James Hilton

and Anna Hilton, contested disbursement of the accounts, arguing

that the beneficiary designations were invalid. Summary

judgment entered for the plaintiff, and the defendants appealed.

We affirm.

Background. Viewed in the light most favorable to the

defendants, the nonmoving parties, see McManus v. McManus, 87

Mass. App. Ct. 864, 867 (2015), the summary judgment record

establishes the following material facts. At the time of the

decedent's death in August 2021, he held a life insurance policy

through Life Insurance Company of North America (LINA), a TOD

account through Fidelity Brokerage Services LLC (Fidelity), and

an IRA through Fidelity. The plaintiff was designated as the

beneficiary of the LINA account, effective July 7, 2017. On

January 17, 2019, at 9:54 A.M., the plaintiff was again

designated as the beneficiary of the LINA account through an

electronic transaction. The defendants proffered evidence,

obtained from the decedent's Google account history, that on

January 17 at 9:21 A.M., the decedent had used Google Maps to

search for directions to his workplace from the vicinity of his

home, which, according to defendant James Hilton's affidavit,

was approximately a forty-five minute drive.

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On August 20, 2019, at approximately 7:50 P.M., an

electronic update to the two Fidelity accounts designated the

plaintiff as the one hundred percent beneficiary. No

beneficiary had been listed on the Fidelity accounts until these

changes were made, and no contingent beneficiaries were ever

named. The defendants produced additional evidence from the

decedent's Google account history showing that on August 20 at

6:44 P.M., he had searched for directions from his workplace to

his home. At 7:23 P.M., he received a call on his cell phone

that lasted eight minutes and nine seconds. At 8:26 P.M. and

three subsequent times that evening, he used an application on

his phone called StreamLabs.

Acting on the plaintiff's motion for summary judgment, the

judge concluded that the defendants had not presented evidence

of the decedent's incapacity. As to the defendant's allegation

that the plaintiff fraudulently made the beneficiary

designations herself without the decedent's consent, the judge

concluded that "the gulf between what the documents show and

what [d]efendants must prove is simply too large to create a

material issue of fact."

Discussion. 1. Motions to compel. The defendants argue

that they were prejudiced by the denial of multiple motions to

compel discovery because they were denied access to items that

were critical to proving the plaintiff's fraud. Specifically,

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they argue that the plaintiff failed to produce hard drives and

other tangible electronic storage devices in response to the

defendants' request for production of documents.

In contesting the validity of the beneficiary designations,

the defendants sought to depose the plaintiff and served

interrogatories and requests for production of documents. The

documents requested included communications, mail, forms,

telephone records, and statements. The defendants subsequently

filed a motion to compel, in which, among other things, they

"demanded" that "documents/hard drives be produced." The judge

appointed a special discovery master and set a date for the

close of discovery. The special master denied the defendants'

motion to compel production of hard drives, stating, "There were

no requests of any kind seeking hard drives. Plaintiff is not

required to turn over the same." After the close of discovery,

the defendants filed two more motions to compel, which the judge

denied except to permit the defendants' deposition of the

plaintiff to go forward. The plaintiff's deposition took place,

but the defendants' counsel suspended the proceeding and filed

another motion to compel the production of computer-related

materials. After a hearing at which the discovery master was

brought before the court, the judge denied the motion.

"In general, we uphold discovery rulings unless the

appellant can demonstrate an abuse of discretion that resulted

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in prejudicial error" (quotation and citation omitted).

Commissioner of Revenue v. Comcast Corp., 453 Mass. 293, 302

(2009). We do not reverse for abuse of discretion unless the

judge made "a clear error of judgment in weighing the factors

relevant to the decision, such that the decision falls outside

the range of reasonable alternatives" (quotation and citation

omitted). L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).

The defendants argue that it was error not to compel the

plaintiff to produce her computer hard drives because hard

drives were subsumed in their request for "documents," which

they defined by reference to Mass. R. Civ. P. 34 (a), as

amended, 474 Mass. 1402 (2016), that is, "any designated

documents or electronically stored information -- including

writings, drawings, graphs, charts, photographs, sound

recordings, images and other data or data compilations -- stored

in any medium from which information can be obtained."

Mass. R. Civ. P. 34 (a) (1) (A). As it appears that this issue

was not raised or argued to the special master or the judge, the

defendants may not argue it for the first time on appeal. See

Carey v. New England Organ Bank, 446 Mass. 270, 285 (2006). In

any event, the argument is unavailing. While parties have the

general obligation to make a diligent search for reasonably

accessible, electronically stored information, cf.

Mass. R. Civ. P. 26 (f), 466 Mass. 1404 (2013), a request for

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such documents does not require producing the medium on which

they are stored. Nor does the definition of "document" in rule

34 (a) (1) (A) encompass tangible items such as hard drives.

Rather, the very next sentence of rule 34 allows parties to

request "any designated tangible things." Mass. R. Civ. P.

34 (a) (1) (B). The inclusion of "tangible things" in a

separate subpart of the rule implies a distinction between

"tangible things" and "documents." See Plymouth Retirement Bd.

v. Contributory Retirement Appeal Bd., 483 Mass. 600, 604 (2019)

(express language of statute "demonstrates that the Legislature

constructed the latter provision to work together with the

former").

The defendants fare no better by arguing that because they

were unable to obtain the plaintiff's electronic storage

devices, the plaintiff obstructed "the appropriate management of

an estate by the heirs at law" or that the plaintiff's actions

amounted to spoliation of evidence. These arguments too were

waived by the defendants' failure to raise them at the trial

court level, and are likewise unavailing. To the extent the

plaintiff's actions obstructed the management of the estate,

that claim is irrelevant to the issues presented in the

plaintiff's complaint for declaratory relief with respect to the

LINA and Fidelity accounts. Nor have the defendants shown that

the plaintiff "negligently or intentionally lost or destroyed

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evidence known to be relevant" to the case. Keene v. Brigham &

Women's Hosp., Inc., 439 Mass. 223, 234 (2003). The defendants

presented no evidence that hard drives or other tangible

electronic storage items were lost or destroyed. To the

contrary, they concede in their brief that the plaintiff had the

requested items in her possession.

Moreover, the defendants have not demonstrated prejudice

from the denial of their motions to compel. Other than the

conclusory statement that "electronic activities and computer

kept logs are of paramount importance to the theory of the

defendants," they do not explain what evidence they expected to

obtain from the hard drives or how it would be relevant to their

case. The defendants have not demonstrated that, in denying

their motions to compel, the special master erred or committed

clear error. See Imbrie v. Imbrie, 102 Mass. App. Ct. 557, 569

(2023) ("Under [Mass. R. Dom. Rel. P.] 53, we review a master's

findings for clear error, while reviewing conclusions of law de

novo"). Nor have they demonstrated that the judge failed to

consider the relevant factors or that her conclusions were

outside the range of reasonable alternatives. See L.L., 470

Mass. at 185 n.27.

2. Summary judgment. "The standard of review of a grant

of summary judgment is whether, viewing the evidence in the

light most favorable to the nonmoving party, all material facts

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have been established and the moving party is entitled to a

judgment as a matter of law." Augat, Inc. v. Liberty Mut. Ins.

Co., 410 Mass. 117, 120 (1991). "Where the opposing party will

have the burden of proof at trial, the moving party must

demonstrate, by reference to materials properly in the summary

judgment record, unmet by countervailing materials, 'that the

party opposing the motion has no reasonable expectation of

proving an essential element of that party's case.'" Carey, 446

Mass. at 278, quoting Kourouvacilis v. General Motors Corp., 410

Mass. 706, 716 (1991).

The plaintiff made such a demonstration here. Had this

case gone to trial, the defendants would have borne the burden

of proving that the designations were fraudulently made by the

plaintiff. 3 See Cleary v. Cleary, 427 Mass. 286, 290 (1998) ("In

general, a party challenging a will or other document on the

ground that it was procured through fraud or undue influence

bears the burden of proving the allegation by a preponderance of

the evidence"). To demonstrate that the defendants had no

reasonable expectation of proving those claims, the plaintiff

submitted evidence from LINA and Fidelity that the beneficiary

designations were valid on their face at the time of the

3 On appeal, the defendants do not raise any argument
regarding incapacity; accordingly, we need not reach the issue.
See Cubberley v. Commerce Ins. Co., 495 Mass. 289, 292 n.6
(2025).

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decedent's death. E-mail messages between LINA and the

decedent's employer and a beneficiary designation report

confirmed that the plaintiff was listed as the beneficiary of

the life insurance policy effective July 7, 2017, and that the

designation was updated in the company's new benefits system in

January 2019. LINA further confirmed that, after a review of

the policy in January 2022, neither defendant was entitled to

any benefits because they were not listed as beneficiaries. We

agree with the judge that the evidence that the decedent did not

make the beneficiary designation himself is speculative and

conclusory.

To the extent the decedent's Google Maps search suggests a

remote possibility that the plaintiff, rather than the decedent,

updated the designation in 2019, such evidence does not negate

the 2017 designation, nor does it tend to show that the

plaintiff was acting without the decedent's consent, let alone

with an intent to defraud. Similarly, the Fidelity records

showed that the plaintiff was added as the one hundred percent

beneficiary on or about August 20, 2019, and no contingent

beneficiaries were ever named. The defendants' evidence of the

decedent's Google account activity does not create a triable

issue of fact on the defendants' claim of fraud with respect to

the Fidelity accounts.

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The defendants also allege that LINA's and Fidelity's

failure to present evidence that their online security measures

and electronic signature requirements complied with State and

Federal requirements created a genuine issue of material fact as

to whether the decedent could have made the beneficiary

designations. Like many of the defendants' arguments, this

argument is being raised for the first time on appeal and is

waived. See Carey, 446 Mass. at 285. Moreover, nothing in the

record supports the defendants' claim that either company was

out of compliance, and the burden was on the defendants, not

LINA or Fidelity, to provide such proof. See Kourouvacilis, 410

Mass. at 716. And, in any event, the defendants agreed to

dismiss both LINA and Fidelity as defendants from this case.

We agree with the judge that "there simply is insufficient

credible evidence to support any material fact that would

overcome the presumption that the decedent designated [the

plaintiff] as the beneficiary of the proceeds from his life

insurance policy and his retirement accounts." Summary judgment

for the plaintiff was proper. 4

Judgment affirmed.

4 The plaintiff seeks appellate attorney's fees on the
ground that the defendants' arguments are frivolous. We
disagree and decline to award attorney's fees.

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By the Court (Massing,
Englander & D'Angelo, JJ. 5),

Clerk

Entered: June 16, 2025.

5 The panelists are listed in order of seniority.

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