In the Matter of the Estate of Olson

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23-P-210 Appeals Court

IN THE MATTER OF THE ESTATE OF JEAN OLSON.

No. 23-P-210.

Plymouth. November 1, 2023. - March 21, 2024.

Present: Wolohojian, Neyman, & Shin, JJ.

Uniform Probate Code. Conservator. Will, Execution, Validity,
Extrinsic evidence. Error, Harmless. Statute,
Construction. Practice, Civil, Attorney's fees.

Petition filed in the Plymouth Division of the Probate and
Family Court Department on July 9, 2019.

The case was heard by Edward F. Donnelly, Jr., J., on a
motion for summary judgment.

Brian K. Lee for David D. Parker, Jr.
Matthew H. Beaulieu for Anthony Lewandowski.
John A. Gianino, for Paul L. Grzesik, was present but did
not argue.

SHIN, J. The former conservator (conservator) of the

decedent, Jean Olson, filed a petition to probate a document

offered as Olson's will. The document, titled "Last Will and

Testament of Jean Olson," was prepared by the conservator in
2

consultation with Olson several months before her death,

attested to by two witnesses, and notarized. It was signed not

by Olson herself, however, but by the conservator in his name,

acting under the apparent, but mistaken, belief that he had the

power to execute a will on Olson's behalf.

Olson's nephew, Anthony Lewandowski, objected to the

conservator's petition and moved for summary judgment, arguing

that the document was not a valid will under G. L. c. 190B,

§ 2-502 (a), which requires that wills be signed by the testator

or by someone else in the testator's name.1 The conservator

responded that § 2-502 (a) contains an exception that allows the

use of extrinsic evidence to prove that a testator intended an

unsigned document to be her will. A Probate and Family Court

judge agreed with Lewandowski and dismissed the petition.

We conclude that in the specific circumstances of this case

-- where a separate statute (the conservatorship statute) allows

conservators with court authorization to execute wills on behalf

of other persons, and the conservator here acted on the belief

that he had such authorization -- the language creating the

exception to § 2-502 (a) is best construed to permit the use of

extrinsic evidence to establish that the unsigned document is a

1 Olson's nephew, Paul L. Grzesik, also filed an objection
in the Probate and Family Court and joins in the brief filed by
Lewandowski in this appeal.
3

valid will. A contrary reading would risk allowing a good faith

mistake of the conservator, a person specifically appointed by

the court to manage Olson's estate, to override Olson's

testamentary intent. As we do not believe this would be

consistent with the statutory purposes, we vacate the dismissal

of the petition and remand for further proceedings.2

Background. 1. Statutory framework. We begin with an

overview of the relevant statutes to provide context for the

issues raised by the appeal.

In 2009 the Legislature enacted G. L. c. 190B, § 2-502, as

part of the Massachusetts Uniform Probate Code (MUPC). See

St. 2008, c. 521, § 9. Section 2-502 states in full:

"[Execution of Wills.]

"(a) Except as provided in subsection (b) and in sections
2-506 and 2-513,[3] a will shall be:

"(1) in writing;

"(2) signed by the testator or in the testator's name by
some other individual in the testator's conscious presence
and by the testator's direction; and

2 We note that the conservator filed the notice of appeal
before the decree was docketed. Because the objectors do not
raise the issue and we see no prejudice, we reach the merits on
appeal. See Liberty Mut. Fire Ins. Co. v. Casey, 91 Mass. App.
Ct. 243, 244 n.2 (2017).

3 These sections concern, respectively, choice of law if a
will is executed or a testator at the time of death is domiciled
outside Massachusetts, and the admissibility of separate
writings to dispose of items of tangible personal property.
Neither is pertinent to this case.
4

"(3) signed by at least 2 individuals, each of whom
witnessed either the signing of the will as described in
paragraph (2) or the testator's acknowledgment of that
signature or acknowledgment of the will.

"(b) Intent that the document constitute the testator's
will can be established by extrinsic evidence." (Emphases
added.)

As we will discuss, this case turns on the meaning of § 2-502's

opening clause, "[e]xcept as provided in subsection (b)."

Section 2-502 is modeled after the corresponding section of

the Uniform Probate Code (UPC)4 but differs in certain respects,

including that it omits the UPC provision authorizing

holographic wills (subsection [b] of UPC § 2-502). For

comparison we set out the full text of UPC § 2-502 in the

margin.5 Also, the MUPC does not contain a provision comparable

4 "The Uniform Probate Code is published by the Uniform Law
Commission (also known as the National Conference of
Commissioners on Uniform State Laws), a State-supported,
national organization that proposes uniform codes for State
legislatures to encourage uniformity and clarity in important
areas of State law." American Family Life Assur. Co. of
Columbus v. Parker, 488 Mass. 801, 804 n.5 (2022).

5 The full text of section 2-502 follows:

"(a) Except as otherwise provided in subsection (b) and in
Sections 2-503, 2-506, and 2-513, a will must be:

"(1) in writing;

"(2) signed by the testator or in the testator's name by
some other individual in the testator's conscious presence
and by the testator's direction; and
5

to UPC § 2-503, known as the harmless error provision. In

jurisdictions where it has been adopted, § 2-503 allows a court

to treat a document or writing as a valid will, even if "not

executed in compliance with Section 2-502," "if the proponent of

the document or writing establishes by clear and convincing

evidence that the decedent intended the document or writing to

constitute . . . the decedent's will." Uniform Probate Code

§ 2-503 (2006). See, e.g., Estate of Ehrlich, 427 N.J. Super.

64, 70-71 (2012). The purpose of § 2-503 is "to retain the

intent-serving benefits of Section 2-502 formality without

inflicting intent-defeating outcomes in cases of harmless

error." Uniform Probate Code § 2-503 comment (2006).

Article V, Part 4, of the MUPC governs conservatorships.

With respect to "a person who is disabled for reasons other than

"(3) signed by at least two individuals, each of whom
signed within a reasonable time after he [or she] witnessed
either the signing of the will as described in paragraph
(2) or the testator's acknowledgment of that signature or
acknowledgment of the will.

"(b) A will that does not comply with subsection (a) is
valid as a holographic will, whether or not witnessed, if
the signature and material portions of the document are in
the testator's handwriting.

"(c) Intent that the document constitute the testator's
will can be established by extrinsic evidence, including,
for holographic wills, portions of the document that are
not in the testator's handwriting."

Uniform Probate Code § 2-502 (2006).
6

minority," a court may appoint a conservator in certain

situations, including where "the person is unable to manage

property and business affairs effectively because of a

clinically diagnosed impairment in the ability to receive and

evaluate information or make or communicate decisions, even with

the use of appropriate technological assistance" and "the person

has property that will be wasted or dissipated unless management

is provided." G. L. c. 190B, § 5-401 (c). After service of

notice, "the court in which the petition [for appointment of a

conservator] is filed has . . . exclusive jurisdiction to

determine how the estate of the protected person . . . shall be

managed, expended, or distributed to or for the use of the

protected person, the protected person's dependents, or other

claimants," until the conservatorship proceeding is terminated.

G. L. c. 190B, § 5-402 (2).

The powers of a conservator are listed in G. L. c. 190B,

§§ 5-423 and 5-424. While there are many, the listed powers do

not include the power to make a will. Rather, under G. L.

c. 190B, § 5-407 (d) (7), it is the court that has the power to

"make, amend, or revoke the protected person's will." But as

provided by G. L. c. 190B, § 5-425, "the court may confer on a

conservator at the time of appointment or later . . . any power

that the court itself could exercise under section[] . . .

5-407 (d)." In that event, when "approving a conservator's
7

exercise of the powers listed in [§ 5-407 (d)]," the court

"shall consider primarily the decision that the protected person

would have made if not disabled, to the extent that the decision

can be ascertained." G. L. c. 190B, § 5-407 (e).

2. Facts. In December 2015 an elder-services agency filed

a petition in the Probate and Family Court requesting

appointment of a conservator for Olson. On July 17, 2017, a

judge found after a hearing that a basis existed for a

conservatorship and issued a decree and order appointing the

conservator and giving him "all the powers and duties authorized

to a conservator for a protected person under G. L. [c.] 190B[,]

§ 5[,] Part IV, exclusive of those powers requiring specific

court authorization."6 On September 6, 2017, the judge issued a

further order that was incorporated into the decree. As

relevant here, the order directed that "[a] financial and an

estate plan be established for Jean Olson, with the assistance

of the [c]onservator . . . and other expert financial/estate

planners."

The summary judgment record contains two affidavits from

the conservator describing the following steps he took pursuant

to the September 6, 2017 order. Unable to locate a will or

6 The same day, the elder-services agency filed a petition
for appointment of a guardian for Olson, alleging that she was
an incapacitated person. In February 2018 the judge appointed
the conservator to also act as Olson's guardian.
8

other document expressing Olson's testamentary wishes, the

conservator hired an attorney "to determine whether a Petition

for Estate Plan and/or appointment of a Guardian ad Litem

('GAL') was required." This attorney, "[a]fter investigation,

including consultation with the Judicial Case Manager,"

confirmed that the decree as modified by the September 6, 2017

order "expanded [the conservator's] authority to create an

estate plan and that a GAL was not required because [Olson] was

represented by independent legal counsel, Doris Muirhead." The

conservator then hired a second attorney, Alyssa Asack, to draft

an estate plan for Olson and met with Olson multiple times

throughout 2018 to discuss how she wanted to divide her estate.

At one such meeting, which was also attended by Asack and

Muirhead, Olson expressed that she wanted to make major bequests

to Boston Children's Hospital and the Masonic Lodge in Brockton

because of services that those organizations had provided to her

and her family. Once Asack memorialized those wishes in a draft

will, the conservator met with Olson for approximately 1.7 hours

on October 17, 2018, to discuss the draft, including

specifically the provisions that would distribute thirty-three

percent shares of Olson's estate to each of Boston Children's

Hospital and the Masonic Lodge in Brockton. After discussion

Olson decided to reduce those amounts to twenty-five percent
9

shares, while again "express[ing] great pride and enthusiasm for

what each organization had done to benefit her and her family."

On October 23, 2018, the conservator executed the document

at issue (2018 document). Titled "Last Will and Testament of

Jean Olson," the 2018 document begins: "I, JEAN OLSON, by my

court-appointed Conservator, . . . acting pursuant to the

authority granted to him in the Conservatorship Decree dated

September 6, 2017, . . . declare that this is my Last Will and

Testament, hereby revoking all prior Wills and Codicils." Under

the distribution provisions, Olson's estate would be devised as

follows: twenty-five percent to Boston Children's Hospital,

twenty-five percent to the Paul Revere Lodge A.F. and A.M. (the

Masonic Lodge in Brockton), eleven percent to each of her four

nephews, and three percent to each of her two nieces-in-law.

The conservator signed the 2018 document, which was witnessed

and notarized, in his own name as Olson's conservator.

Olson died, it appears unexpectedly, on May 6, 2019,

terminating the conservatorship. See G. L. c. 190B, § 5-429 (d)

("A conservatorship terminates upon the death of the protected

person"). Two months later, the conservator filed the

underlying petition to probate the 2018 document as Olson's

will. Lewandowski and another of Olson's nephews (together,

objectors) filed appearances and objections. See note 1, supra.

Lewandowski thereafter moved for summary judgment, arguing that
10

the powers granted to the conservator by the conservatorship

decree did not include the power to make a will for Olson.7

While conceding he did not have such power, the conservator

countered that the 2018 document was still a valid will because

the conservatorship decree preserved Olson's right to make her

own will.

In light of the conservator's concession, Lewandowski then

argued that the 2018 document was not a valid will under G. L.

c. 190B, § 2-502 (a), because it was neither signed by Olson nor

signed in her name by someone else in her conscious presence and

at her direction. In response the conservator sought to rely on

the "[e]xcept as provided in subsection (b)" clause of

§ 2-502 (a), claiming he could prove with extrinsic evidence

that Olson intended the 2018 document to be her will. He

submitted the two affidavits described above in support, as well

as an affidavit signed by Lewandowski. Although the

circumstances of its execution are unclear, Lewandowski averred

in the affidavit that Olson "often spoke of the great gratitude

and appreciation she felt towards Boston[] Children's Hospital"

and "discussed her and her late husband's long involvement with

the Masonic Lodge in Brockton." Lewandowski further averred

7 Lewandowski's motion also claimed that Olson had
previously executed a will in 2006. It appears that the
objectors filed a copy of the 2006 will in the trial court, but
it is not included in the record appendix.
11

that, based on his conversations with Olson, "it is [his]

opinion that the Will as presented for allowance represents her

wishes."

After a hearing a judge (who was not the judge in the

conservatorship proceeding) issued a thoughtful written decision

granting summary judgment for the objectors. The judge

concluded that the "[e]xcept as provided in subsection (b)"

clause did not allow extrinsic evidence to be used to override

the signature requirement of § 2-502 (a), and so the 2018

document could not be submitted to probate. A decree entered

accordingly, dismissing the petition.

Discussion. We review a judge's decision granting summary

judgment de novo. See American Family Life Assur. Co. of

Columbus v. Parker, 488 Mass. 801, 804 (2022). Summary judgment

is appropriate if no material fact is in dispute and the moving

party is entitled to judgment as a matter of law. See id.

Here, whether the objectors are entitled to summary

judgment hinges on a question of law -- the scope of the

"[e]xcept as provided in subsection (b)" clause of G. L.

c. 190B, § 2-502 (a). The conservator construes this language

to create a blanket exception to the execution requirements of

subsection (a), allowing any document to be submitted to probate

if the proponent can prove with extrinsic evidence that the

document is the testator's intended will. Any other
12

interpretation, the conservator says, would render the

"[e]xcept" clause a nullity. Conversely, the objectors contend

that the conservator's interpretation would render

subsection (a) a nullity. While conceding that the "[e]xcept"

clause must be given meaning, the objectors urge us to limit it

to "circumstances where the four corners of a properly executed

will are insufficient" to establish testamentary intent (such as

where a document is mislabeled or unlabeled), or where "there is

some statutory basis for looking beyond the four corners of the

document."

Our goal in interpreting any statute is to effectuate the

intent of the Legislature. See Wolfe v. Gormally, 440 Mass.

699, 704 (2004). "Ordinarily, if the language of a statute is

plain and unambiguous it is conclusive as to legislative

intent." Sterilite Corp. v. Continental Cas. Co., 397 Mass.

837, 839 (1986). Because the Legislature is presumed to act

reasonably, however, "[w]e will not adopt a literal construction

of a statute" if it would lead to illogical results. Attorney

Gen. v. School Comm. of Essex, 387 Mass. 326, 336 (1982).

We do not agree with the conservator that the "[e]xcept as

provided in subsection (b)" language is unambiguous and must be

construed to permit, without limitation, the use of extrinsic

evidence to prove that an unsigned or unwitnessed document is a

will. Under the conservator's reading, any writing imaginable,
13

such as scribbles on a cocktail napkin, could theoretically be

probated as a will. This would essentially nullify the

requirements of § 2-502 (a) that wills "shall be" witnessed and

signed. We decline to adopt such a reading as it would violate

the basic tenet of statutory construction that "no word in a

statute should be considered superfluous." International Org.

of Masters, Mates & Pilots, Atl. & Gulf Maritime Region, AFL-CIO

v. Woods Hole, Martha's Vineyard & Nantucket S.S. Auth., 392

Mass. 811, 813 (1984). See Champigny v. Commonwealth, 422 Mass.

249, 251 (1996) (court will not interpret statute in manner that

would result in "legislative effort" having "no practical

effect").

The conservator's reading is also contrary to at least two

of the five enumerated purposes of the MUPC: "to simplify and

clarify the law concerning the affairs of decedents," and "to

promote a speedy and efficient system for liquidating the estate

of the decedent and making distribution to the decedent's

successors." G. L. c. 190B, § 1-102 (b). Construing the

"[e]xcept as provided in subsection (b)" clause to supplant

entirely the signature and attestation requirements of

§ 2-502 (a) would lead to increased litigation and delays in

settling estates and create the risk of fraud and undue

influence over the vulnerable and elderly. We do not believe

that this would be consistent with legislative intent. See
14

Wolfe, 440 Mass. at 704, quoting Saccone v. State Ethics Comm'n,

395 Mass. 326, 334 (1985) ("if a court concludes that 'the

general meaning and object of the statute should be found

inconsistent with the literal import of any particular clause or

section, such clause or section must, if possible, be construed

according to the spirit of the act'"). The Legislature's

decision not to adopt either the UPC provision authorizing

holographic wills or the UPC harmless error provision supports

our conclusion, as these omissions suggest that the Legislature

intended for the execution requirements of § 2-502 (a) to apply

more strictly in Massachusetts.

That said, under the tenet that no word in a statute is to

be considered superfluous, we must presume that the Legislature

intended for the "[e]xcept as provided in subsection (b)" clause

to have some meaning. Granted, it may be that the clause is a

product of legislative oversight, as indicated by comparing

§ 2-502 with the corresponding provision of the UPC. While

similar language appears in UPC § 2-502 (a), subsection (b) in

the UPC is the provision authorizing holographic wills. The

"[e]xcept" clause makes sense in this statutory structure -- a

will must be signed and witnessed, except that under

subsection (b) a will that is not witnessed is still valid as a

holographic will if the signature and material portions are in

the testator's handwriting. The provision concerning extrinsic
15

evidence, which is subsection (c) of UPC § 2-502, likewise makes

sense, as it is not structured as an exception to the execution

requirements of subsection (a). Rather, as explained in the

comment, it permits the use of extrinsic evidence to prove

"testamentary intent." Uniform Probate Code § 2-502 comment

(2006). See Restatement (Third) of Property: Wills and Other

Donative Transfers § 3.1 comment g (1999) ("To be a will, the

document must be executed by the decedent with testamentary

intent, i.e., the decedent must intend the document to be a will

or to become operative at the decedent's death. . . . In the

absence of a clear expression of testamentary intent in the

document, testamentary intent can be inferred from the document

or established by extrinsic evidence").

As the objectors suggest, it is possible that the

Legislature, after deciding not to adopt the UPC provision

authorizing holographic wills, neglected to remove the "[e]xcept

as provided in subsection (b)" language from subsection (a).

But if that is the case, it is for the Legislature to amend the

statute. Our role, where "a statute contains seemingly

conflicting language," is to "interpret . . . [it], if possible,

so as to make it an effectual piece of legislation in harmony

with common sense and sound reason" (quotations and citation

omitted). Wolfe, 440 Mass. at 704. We must also consider the
16

language in light of the "statute's purpose and history"

(citation omitted). Id.

With these considerations in mind, we conclude that, in the

particular circumstances of this case and in view of the

interplay between § 2-502 and the conservatorship statute, it is

appropriate to turn to extrinsic evidence to determine whether

Olson intended the 2018 document to be her will. The objectors

concede that a document that deviates from the requirements of

§ 2-502 (a) may still be a valid will if a different statute

authorizes it. One such statute is G. L. c. 190B,

§ 5-407 (d) (7), which, as mentioned, allows a conservator with

court authorization to make a will on behalf of a person under

conservatorship. The court would then engage in a substituted

judgment inquiry to determine whether the will comports with

"the decision that the protected person would have made if not

disabled, to the extent that the decision can be ascertained."

G. L. c. 190B, § 5-407 (e).

Although the decree here did not authorize the conservator

to make a will, were Olson still living, the court could have

later conferred that power on the conservator and approved the

2018 document as Olson's will after a substituted judgment

hearing. See G. L. c. 190B, § 5-425 (court may confer

§ 5-407 [d] powers on conservator "at the time of appointment or

later"). The objectors conceded as much at oral argument. In
17

this situation, where a substituted judgment hearing cannot be

held because Olson's death terminated the conservatorship, we

think it aligns with the purposes of the MUPC and "common sense

and sound reason" for the court to consider extrinsic evidence

to determine whether the 2018 document comports with Olson's

testamentary intent. Wolfe, 440 Mass. at 704, quoting

Massachusetts Comm'n Against Discrimination v. Liberty Mut. Ins.

Co., 371 Mass. 186, 190 (1976). See G. L. c. 190B, § 1-102 (a)

("This chapter shall be liberally construed and applied to

promote its underlying purposes and policies"). It is

undisputed that the conservator has no direct financial interest

in the probate of the 2018 document and that he acted on a good

faith, albeit erroneous, belief that he had the authority to

execute a will for Olson. Allowing a conservator's good faith

mistake to potentially defeat a decedent's testamentary wishes

would contravene the MUPC's purpose "to discover and make

effective the intent of a decedent in distribution of the

decedent's property" without materially serving the other

enumerated purposes. G. L. c. 190B, § 1-102 (b) (2). See

Zimmerling v. Affinity Fin. Corp., 86 Mass. App. Ct. 136, 142-

143 (2014) (declining to construe provision of Uniform

Commercial Code in manner that would be contrary to one of

enumerated purposes).
18

Accordingly, we conclude that the 2018 document may be

submitted to probate if the conservator is able to prove with

extrinsic evidence that Olson intended it to be her will. We

express no view on the underlying factual question of Olson's

intent. We agree with the objectors that that question is not

properly before us as the conservator did not cross-move for

summary judgment on the ground that no issue of material fact is

in dispute.

The conservator has requested recovery of his appellate

attorney's fees to be paid from the estate. We allow the

request under the authority of G. L. c. 190B, § 3-720, and G. L.

c. 215, § 45.8 Within fourteen days of the date of this opinion,

the conservator may file an application for fees, and the

objectors may have fourteen days to respond. See Fabre v.

Walton, 441 Mass. 9, 10-11 (2004).

Conclusion. The decree is vacated, and the matter is

remanded for further proceedings consistent with this opinion.

So ordered.

8 The objectors' request for appellate attorney's fees is
denied.