WENDY ERIKSON v. BRUCE ERIKSON & Others.

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-1189

WENDY ERIKSON

vs.

BRUCE ERIKSON & others. 1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendants appeal from a judgment of a judge of the

Land Court that concluded that one of the defendants, Bruce

Erikson, had unduly influenced his mother, Doris Erikson, and

therefore voided a deed by which Doris granted a parcel of real

property in Danvers (the subject property) to the other

defendants, Danielle Erikson and Eva Erikson. 2 The defendants

argue that the trial judge erred in concluding that Bruce unduly

influenced Doris in executing the deed. We disagree and

therefore affirm.

1 Danielle K. Erikson and Eva Erikson.

2Because so many of the parties share a last name, after
the first mention of each party, we use first names to identify
them.
Facts. 1. Wendy Erikson and the subject property. The

judge found the following facts. Doris and her husband, Herman

Erikson, had three children: Wendy Erikson, Bruce Erikson, and

Gayle O'Connell. Around August 1985, Doris and Herman acquired

the subject property. They told the seller that this property

was "exactly what [they wanted] for [their] daughter, Wendy."

Doris told Wendy that they purchased this property to be her

inheritance. Although her parents never put the subject

property in her name because they were concerned about the

implications for the property if Wendy were to marry in the

future, Wendy has lived at the property since approximately

1985, the year her parents purchased it. Wendy and her parents

agreed that Wendy was responsible for the property's upkeep,

utilities, insurance, and taxes, and Wendy made major repairs

and improvements to the property during the years she resided at

the property. In 2004, Wendy suffered a motorcycle accident,

and became paraplegic.

2. Doris's condition. After Herman's death in 1993, Doris

began calling Wendy, Gayle, and the Danvers police department,

telling them that people were coming into her home and that

things were missing. Wendy and Gayle eventually met with a

psychologist from the police department to discuss Doris's

behavior and ways to cope with it.

2
In 2003, Doris conveyed a condominium unit to Noah Erikson,

one of Bruce's children. Doris executed two separate deeds

purporting to convey the same property to Noah, and after the

conveyance, Doris and Noah disputed whether this conveyance was

a gift or Noah owed Doris money for the property. The judge in

this case, which does not involve that conveyance, concluded

that Doris did not fully comprehend the consequences of signing

those deeds.

Doris moved in with Bruce and his family in 2005. Around

this time, Doris also struggled with mobility issues.

3. Bruce, Doris, and the subject property. Bruce worked

as a registered investment advisor for several years. Bruce's

company began to struggle in 2001 and eventually closed around

2008. As a result, Bruce struggled financially at this time, so

much so that he sought a reduction in his alimony payments to

his previous spouse in 2003.

Doris had invested with one of Bruce's investment

companies, and around the time she lived with Bruce and his

family, Doris also wrote checks for substantial sums to Bruce

and members of his family. While she lived with Bruce and his

family, on November 21, 2006, Doris executed a deed, which

purported to convey the subject property in which Wendy lived to

Bruce's twin minor daughters, Danielle and Eva, retaining a life

estate for Doris. Doris was eighty-one years old at the time,

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while Danielle and Eva were six years old. Wendy was never

informed of this deed during Doris's lifetime. The deed was

recorded the day it was executed. Subsequently, in 2007, Bruce

asked his son Robb, who was thirty-seven years old, if he would

agree to have the house Wendy lived in put in his name.

4. Subsequent events. In 2007 or 2008, Doris moved into

Turtle Woods, a community that had staff to assist residents as

needed. Doris later moved to a nursing home. The staff at the

nursing home told Wendy that Doris continued to suffer from

anxiety and paranoia throughout her time there. Doris passed

away on May 21, 2020. She died intestate, so her estate would

have gone to her descendants per capita at each generation. See

G. L. c. 190B, § 2-103.

Wendy first learned of the 2006 deed purporting to convey

the house she lived in to Danielle and Eva after Doris's death.

On September 15, 2020, Wendy filed the underlying complaint

seeking to have the 2006 deed voided on grounds including undue

influence, naming Bruce, Danielle, and Eva as defendants. The

ensuing trial took place over Zoom.

At trial, during a sidebar in the middle of Bruce's

testimony, Bruce asked a person off-screen, "What's the answer

to the question?" and reviewed documents. When asked whether he

had reviewed documents or conversed with anyone during the

sidebar, Bruce lied, stating that he had only asked for a glass

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of water. Danielle also interacted with someone off-screen

during her testimony and answered misleadingly when asked about

the interaction. Based on Bruce's and Danielle's conduct while

testifying, the trial judge credited only the portions of

Bruce's and Danielle's testimony favorable to the defendants

that were corroborated by another source.

The trial judge concluded that Bruce exercised undue

influence over Doris and voided the 2006 deed. This appeal

followed.

Discussion. 1. Preliminary matters. Before we address

the merits of this appeal, we must resolve three initial issues.

a. Statute of limitations. First, the defendants argue on

appeal that the trial court erred in concluding that Wendy's

claims were not barred by the statute of limitations. The

three-year statute of limitations set out in G. L. c. 260, § 2A,

applies to undue influence claims. Howe v. Palmer, 80 Mass.

App. Ct. 736, 742 (2011). Under the discovery rule, though, the

statute of limitations does not start to run until "the

plaintiff discovers, or reasonably should have discovered, 'that

[she] has been harmed or may have been harmed by the

defendant[s'] conduct.'" Koe v. Mercer, 450 Mass. 97, 101

(2007), quoting Bowen v. Eli Lilly & Co., 408 Mass. 204, 205

(1990).

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Here, the defendants raised the statute of limitations in a

motion for summary judgment, arguing that Wendy may not take

advantage of the discovery rule because her failure to conduct a

title search or hire an attorney to help her discern when her

cause of action accrued did not render her claim unknowable.

The trial judge denied the motion for summary judgment on this

issue, concluding that the discovery rule applied, but reserving

for trial the factual question of when Wendy discovered that the

subject property had been conveyed to Danielle and Eva.

Preliminarily, although Wendy argues otherwise, we can and will

review the trial judge's legal determination that the discovery

rule applies. See Waxman v. Waxman, 84 Mass. App. Ct. 314, 321-

322 (2013), citing Bacon v. Federal Kemper Life Assur. Co., 400

Mass. 850, 851 n.3 (1987) (noting that though generally "a party

cannot appeal from the denial of summary judgment on a claim or

defense after a trial on the merits of that claim or defense,"

but concluding that denial of summary judgment was reviewable

where, at trial, the pertinent issue -- here applicability of

the discovery rule -- was treated "as resolved and located

beyond the scope of triable issues").

The defendants rely in part on Friedman v. Jablonski, 371

Mass. 482, 486 (1976), in arguing that Wendy cannot take

advantage of the discovery rule because she failed to conduct a

title search or hire an attorney to help her discern when her

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cause of action accrued. This case, however, is a far cry from

Friedman, which involved alleged misrepresentations during the

sale of a parcel of land, and the plaintiffs "could reasonably

have known" of the alleged misrepresentations by the time they

accepted a deed to the land by checking the registry of deeds.

Friedman, 371 Mass. at 486. Here, however, "there was no event,

much less one comparable to the purchase of real estate in

Friedman, that should have prompted the plaintiff to check the

records at the registry of deeds." Pruner v. Clerk of Superior

Court, 382 Mass. 309, 312 n.7 (1981). Wendy, therefore, did not

forfeit the benefits of the discovery rule by failing to do so.

Given that the discovery rule applies, the statute of

limitations for Wendy's undue influence claim began to run when

she discovered or reasonably should have discovered that she had

been harmed by the defendants' conduct. See Koe, 450 Mass. at

101. At trial, the defendants argued that Wendy reasonably

should have known that the subject property had been conveyed to

Danielle and Eva more than three years prior to her filing this

action because she should have applied to the town for permits

for various home improvement projects. The Danvers building

commissioner testified that only the homeowner or a licensed

contractor can apply for these permits. The defendants argued

that, had Wendy applied for these permits as she was supposed

to, she would have had to discuss the projects and the ownership

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of the property with Doris and would have learned that Doris had

conveyed the property to Danielle and Eva.

The trial judge implicitly rejected this argument, finding

that Wendy first learned of the deed conveying the subject

property to Danielle and Eva shortly after Doris's death. We

see no clear error in the judge's rejection of the argument

that, because she should have applied for certain town permits,

Wendy should have known about the conveyance more than three

years before she filed this action. Further, the trial judge's

finding that Wendy did not learn of the deed conveying the

subject property to Danielle and Eva until after her mother's

death is supported by Wendy's testimony. While the defendants

point to testimony that Gayle told Wendy more than three years

prior to her filing that the house would go to Danielle and Eva

when Doris died, the judge need not have credited that

testimony. It thus was not clear error for the trial judge to

credit Wendy's testimony and find that she did not know about

the deed until after Doris's death and that this lack of

knowledge was objectively reasonable. See Koe, 450 Mass. at

101. See also Edinburg v. Edinburg, 22 Mass. App. Ct. 199, 203

(1986) ("Where there are two permissible views of the evidence,

the factfinder's choice between them cannot be clearly

erroneous" [citation omitted]). The statute of limitations

began to run after May 21, 2020, the date of Doris's death, so

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Wendy's claim, brought on September 15, 2020, was not time

barred.

b. Hearsay. Next, the defendants argue that the trial

court erred in admitting hearsay statements of Doris and Herman

regarding their reason for purchasing the subject property,

their representations to Wendy about the property's ownership,

their statements about arrangements with Wendy regarding

reimbursement of the carrying costs of the property, and "any

related conversations." Under G. L. c. 233, § 65, in civil

cases, statements made by deceased declarants are admissible

despite the rule against hearsay "if the court finds that [the

statements were] made in good faith and upon the personal

knowledge of the declarant." There is no suggestion here that

the statements were not made in good faith, but the defendants

argue that this exception does not cover statements of opinion.

Whether or not that is true, the statements of their reasons for

purchasing the property, their intention that Wendy reside

there, and their arrangement with Wendy were not statements of

opinion, and all fall within this statutory hearsay exception.

See American Family Life Ins. Co. of Columbus v. Parker, 488

Mass. 801, 803, 811 & n.11 (2022) (ex-wife's testimony that

deceased ex-husband had intended for proceeds of his life

insurance policy to support her and their sons admissible under

§ 65).

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c. Parol evidence. The defendants also argue that these

statements were admitted in violation of the parol evidence

rule. The parol evidence rule "bars the introduction of prior

or contemporaneous written or oral agreements that contradict,

vary, or broaden" a written contract that the parties intended

to be a statement of their complete agreement (citation

omitted). Winchester Gables, Inc. v. Host Marriott Corp., 70

Mass. App. Ct. 585, 591 (2007). Here, however, we are not

interpreting a written agreement; instead, we are determining

whether the circumstances surrounding a deed show that it was

procured through undue influence. As such, the parol evidence

rule does not apply.

2. The merits. Having addressed these initial matters, we

turn to the merits. A deed may be invalidated if it was

procured by undue influence. Howe, 80 Mass. App. Ct. at 740.

"Any species of coercion, whether physical, mental or moral,

which subverts the sound judgment and genuine desire of the

individual, is enough to constitute undue influence." Neill v.

Brackett, 234 Mass. 367, 369 (1920). "A claim of undue

influence is comprised of four elements: '(1) an unnatural

disposition has been made (2) by a person susceptible to undue

influence to the advantage of someone (3) with an opportunity to

exercise undue influence and (4) who in fact has used that

opportunity to procure the contested disposition through

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improper means.'" Matter of the Estate of Sharis, 83 Mass. App.

Ct. 839, 842 (2013), quoting O'Rourke v. Hunter, 446 Mass. 814,

828 (2006).

We review a trial judge's findings, including findings that

the elements of undue influence have been met, for clear error.

See Hernon v. Hernon, 74 Mass. App. Ct. 492, 497-499 (2009),

citing Matter of the Estate of Moretti, 69 Mass. App. Ct. 642,

650-651 (2007). "A finding is clearly erroneous . . . when

there is no evidence to support it, or when, 'although there is

evidence to support it, the reviewing court on the entire

evidence is left with the definite and firm conviction that a

mistake has been made.'" Michelon v. Deschler, 96 Mass. App.

Ct. 815, 816 (2020), quoting Care & Protection of Olga, 57 Mass.

App. Ct. 821, 824 (2003).

Here, neither the trial judge's finding that the deed was

procured through undue influence, nor his subsidiary findings,

were clearly erroneous. To begin with, the trial judge did not

err in finding that Bruce had a confidential relationship with

Doris. "'[W]here a confidential relationship exists it

generally takes less to establish undue influence on the part of

beneficiaries' than in the ordinary case" where no such

relationship exists. Cleary v. Cleary, 427 Mass. 286, 290 n.2

(1998), quoting Tetrault v. Mahoney, Hawkes & Golding, 425 Mass.

456, 465 (1997). While both parties bring up issues related to

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fiduciary relationships and their impact on the undue influence

analysis, confidential and fiduciary relationships are two

distinct types of relationships with different legal

implications. See Heinrich v. Silvernail, 23 Mass. App. Ct.

218, 225 n.8 (1986). Where a fiduciary relationship exists, if

the fiduciary benefits from a transaction with their principal,

the burden of proof shifts to the fiduciary to show that they

did not unduly influence the grantor; where a confidential

relationship exists, it is one factor that supports a finding of

undue influence. Cf. Cleary, supra at 290, 292-293 & n.2.

Close relationships that lack "the degree of reliance that

usually lie[s] at the core of recognized fiduciary

relationships" may still amount to confidential relationships.

Heinrich, supra. For example, in Heinrich, a confidential

relationship existed between a social worker and her client

where the two became close friends, the social worker visited

the client almost daily, and the social worker helped the client

with his banking and his bills. Id. at 219-220, 225.

Given that Doris had invested with one of Bruce's

investment companies and that she lived with Bruce at the time

of the deed's execution, there was adequate support for the

judge's finding that Bruce similarly had a confidential

relationship with Doris. Thus, it took "less to establish" that

Bruce unduly influenced Doris than in a case where no such

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relationship existed (citation omitted). Cleary, 427 Mass. at

290 n.2.

a. First element. As to the first element of undue

influence, the trial judge found that the disposition in the

deed was unnatural because it was highly unusual to convey real

estate to six year old children and to retain a life estate in

property one does not intend to occupy. In the absence of any

evidence suggesting some tax-related or other reason for this

arrangement, we see no error in this finding.

b. Second element. As to the second element, age,

cognitive impairment, and dependence on others are all factors

relevant to one's susceptibility to undue influence. See Neill,

234 Mass. at 369-370; B.W. v. J.W., 67 Mass. App. Ct. 295, 299-

300 (2006). Here, Doris was eighty-one years old when she

signed the 2006 deed. Along with her age, the trial judge

credited Wendy's testimony about Doris's many encounters with

the Danvers police and her "unfounded" fears of people breaking

into her home and taking her things. Based on this, the trial

judge found that "Doris showed signs of paranoia and anxiety

. . . from at least 1995 until she died in 2020." Further, the

judge noted that there was evidence in the record that, on

another occasion, Doris had executed deeds without fully

understanding the consequences or surrounding circumstances. As

described above, Doris had previously executed two deeds

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conveying the same single condominium to one of Bruce's sons,

and there was a disagreement between Doris and Bruce's son as to

whether this was a gift. Given all the circumstances, the trial

judge did not err in concluding that Doris, at times, suffered

from confusion about what was happening around her. The judge's

conclusion that her confusion, coupled with her age, made her

susceptible to undue influence was supported by the evidence and

not clearly in error.

The defendants take issue with the fact that there was no

expert medical testimony, medical records, or testimony from a

witness to the conveyance supporting the finding of

susceptibility. The case that the defendants rely on in arguing

that one of these types of evidence was required deals with

testamentary capacity, not susceptibility to undue influence.

See Haddad v. Haddad, 99 Mass. App. Ct. 59, 69 (2021). They

provide no authority for the proposition that such evidence was

required to support the judge's finding with respect to

susceptibility.

The defendants also claim that unrebutted testimony shows

Doris was not susceptible to undue influence. The evidence they

rely on, however, does not compel such a conclusion. Much of

the testimony they point to came from either Bruce or Danielle,

who the trial judge discredited. Although there was some

testimony suggesting Doris retained mental acuity, there was

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also testimony tending to show that she suffered from bouts of

confusion, paranoia, and anxiety. The trial judge was free to

credit the testimony that tended to show that Doris was confused

and susceptible to undue influence, rather than testimony that

might have tended to show she was not. See Wakefield v.

Hegarty, 67 Mass. App. Ct. 772, 774 (2006).

The defendants also argue that the trial court made an

error of law in concluding that the defendants had to provide

evidence that Doris had independent counsel at the signing of

the 2006 deed, or consulted with independent counsel before

signing the deed, and that Doris understood the consequences of

the 2006 deed. They misread the judge's decision. As to

independent counsel, the judge did not require that the

defendants present evidence of this; the judge merely listed

Doris's lack of independent counsel as one of many facts that

showed that Doris was susceptible to undue influence.

Similarly, the trial judge's statement that there was no

evidence Doris understood the consequences of the deed was not a

holding that the defendants had to present some evidence to this

effect. Rather the judge was noting that, in the absence of any

such evidence, he could rely on the other record evidence to

conclude that Doris was susceptible to undue influence at the

time. There was no legal error.

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c. Third element. Next, the trial judge did not err in

finding that Bruce had the opportunity to exercise undue

influence over Doris. The defendants argue that Doris could not

have been as dependent on Bruce and his family as the trial

judge found because she lived independently after living with

them. The fact remains, though, that Doris was living with

Bruce and his family at the time she executed the deed, and at

that time, she struggled with mobility and had reduced

independence. As such, the trial judge's finding that Bruce had

the opportunity to influence Doris was not clear error.

d. Fourth element. Finally, there was no clear error in

the judge's finding that Bruce in fact "used [his] opportunity

to procure the [deed] through improper means," as this was

supported by the record (citation omitted). O'Rourke, 446 Mass.

at 828. Bruce benefitted from this conveyance because it

benefitted his minor children, thereby reducing the financial

burden of supporting them. Further, Bruce believed he could

control the property that was conveyed to his own minor

children; he in fact tried to exercise that control by asking

one of his other children if he would have the property put in

his name. The fact that Bruce's own minor children, and no

other relative of Doris, benefitted from this conveyance,

combined with the confidential relationship between Bruce and

Doris, and the fact that Bruce sought to exercise control of the

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property was enough to support the trial judge's finding that

Bruce did in fact procure the deed's execution by Doris through

improper means. 3

Given all this, the trial judge's conclusion that Bruce

unduly influenced Doris was not clearly erroneous. The judgment

of the Land Court is affirmed. 4

So ordered.

By the Court (Rubin,
Desmond & Singh, JJ. 5),

Clerk

Entered: February 24, 2025.

3 The defendants are correct that it was error for the
judge, on the basis of his conclusion that Bruce lied when he
testified he "had nothing to do with the 2006 deed and had no
knowledge of it," to conclude the opposite. See Kunkel v.
Alger, 10 Mass. App. Ct. 76, 86 (1980) ("mere disbelief of
testimony does not constitute evidence to the contrary.") As
there was abundant evidence and supported findings of subsidiary
fact supporting the finding not only of Bruce's knowledge but of
his exercise of undue influence, this error was harmless.

4 Wendy's request for attorney's fees and costs under
Mass. R. A. P. 25, as appearing in 481 Mass. 1654 (2019), is
denied. See Avery v. Steele, 414 Mass. 450, 455 (1993)
("Unpersuasive arguments do not necessarily render an appeal
frivolous").

5 The panelists are listed in order of seniority.

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