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In re Estate of Ross

Supreme Court of Rhode Island

February 1, 2016

In re Estate of William B. Ross.

Kent County Superior Court (KP 01-9) Supreme Court

For Plaintiffs: William G. Savastano, Esq. Edward J. Mulligan, Esq.

For Defendants: Paul J. Votta, Jr., Esq. Jennifer A. Niedzinski, Esq.

Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.



This case is before the Court on appeal by the children of William B. Ross: namely, William B. Ross, Jr., [1] Glen E. Ross, and James C. Ross (collectively, plaintiffs). In appealing the probate of their father's estate, they challenge the fifth and final accounting of the decedent's guardian and sister, Nancy D. Howard.[2] Lois E. Sanford, another sister of the decedent, was also named a defendant to the probate appeal because she was the co-executrix of William's estate along with Howard. Before this Court, the plaintiffs assert that the trial judge erred in her assessment of the law and the evidence, and they advance several arguments that Howard breached her fiduciary duty, failed to correct a conflict of interest, and violated G.L. 1956 § 33-17-1 and G.L. 1956 § 33-18-27 in failing to obtain approval for the fifth and final accounting of decedent's estate. This case came before the Supreme Court on November 3, 2015, pursuant to an order directing the parties to appear and show cause why the issues raised in this appeal should not summarily be decided. We conclude that cause has not been shown and that the appeal may be decided at this time. For the reasons set forth in this opinion, we affirm the judgment of the Superior Court in all respects.

1 Facts and Travel

In 1958 William B. Ross, decedent, was a member of the United States Army stationed in Greece, where he lived with his wife, Emily Ross, and their three young sons, James, William, Jr., and Glen.[3] At some time during that year, William suffered a massive cerebral hemorrhage; he subsequently underwent two brain surgeries, including a frontal lobectomy, and he was eventually transferred to a facility in Brockton, Massachusetts. As a result of the brain trauma and surgeries, William experienced a substantial loss to his short-term memory. In 1959, his wife was appointed as the guardian of his person and estate. While he resided at the facility in Brockton, his doctors determined that William was incompetent and severely mentally impaired, with a prognosis that there was a reasonable likelihood that he would remain severely impaired and would not regain the ability to function in society in a reasonable manner.

William's sons testified that, during his stay at the facility, they visited their father in Brockton approximately once each month, but that William was unable to engage in any sort of conversation with them and that he did not even recognize them. Around 1965, however, William experienced a remarkable improvement in his functionality. James testified that he remembered visiting the Brockton facility one day when suddenly his father recognized them all, knew they were coming to visit, and was conversing with them. William was reevaluated by the Department of Veterans Affairs (VA), which determined that William was functioning at a sufficient level to be released to live with his parents.

In 1964 Emily resigned as William's guardian, and, around that same time, the couple divorced. Soon after, Citizens Trust Company was appointed guardian of the decedent's estate and attorney Jeremiah Jeremiah[4] was appointed as the guardian of his person; the decedent was rated as 100 percent disabled by the VA. However, in 1971, William was again evaluated by the VA and determined by Dr. Robert Hyde to be competent. Both Citizens and Jeremiah were discharged as William's guardians.

Between 1971 and 1992, William maintained his competency designation and remained without a guardian. Between 1980 and 1991, William purchased several annuities and opened a number of investment accounts, designating various beneficiaries among his three sons, the plaintiffs, and his two sisters, defendants Nancy Howard and Lois Sanford. William also executed a Last Will and Testament. Until the mid-1980s, William's parents had been providing for his welfare and assisting him with financial investments, but, around 1985, Howard testified, her father suffered an abdominal aneurism and about a year or two later her mother was stricken with a heart attack. At that time, Howard, in an unofficial capacity, stepped in to care both for her parents and her brother.

In 1992 William was again determined to be incompetent by the VA, and his sister, Howard, was appointed by the VA to be his "legal custodian." As legal custodian, Howard had control of William's finances, investments, and estate. In 1994, at the suggestion of the VA, she petitioned the probate court to appoint her as William's guardian. The petition was granted, and, pursuant to that appointment, she was required to file yearly accountings of all William's investments. William died on May 31, 1999.[5]

Howard testified that she initially was appointed to be William's legal custodian at the request of the VA, due to the growing size of his estate. Howard prepared an accounting of her brother's assets at the time of her appointment. At that time, the estate was valued at approximately $416, 000. Each year after that, Howard prepared a yearly inventory of her brother's investments and accounts, providing a total accounting of his estate to both the VA and the East Greenwich Probate Court. The fifth and final accounting was submitted in 1999, shortly after William passed away, at which point the estate contained approximately $920, 000. William's three sons filed an objection to the final accounting in the probate court, but on December 21, 2000, the probate judge entered a consent order allowing the guardian's accounting without prejudice to the contestants' right to appeal to the Superior Court.

Plaintiffs filed a notice of probate appeal in Kent County Superior Court on January 5, 2001, listing as reasons for appeal that the guardian, Howard, had violated her fiduciary duty to the decedent, had committed fraud, and had a conflict of interest in making the determination of what assets to include in the decedent's estate.

A nonjury trial was held before a trial justice in the Kent County Superior Court. William's three sons and two sisters each testified at the trial. The parties also presented the testimony of Thomas F. Flynn, the Ross family's financial advisor, and Dr. Andrew Rosenzweig, a geriatric psychiatrist. The deposition of another psychiatrist, Dr. William B. Land, was admitted as a full exhibit by agreement of the parties.

William, Jr. testified that, from the time his father moved in with his grandparents, his father's condition was improved but he remained confused, experienced memory loss, and acted like a person with Alzheimer's disease and "as if he was the best disciplined eight-year-old boy." He testified that he got along very well with his aunts, but he explained that, prior to 1994, he had no knowledge of his father's assets or whether he had any interest in those assets, nor that his father had been under a guardianship at any point.

James, William's oldest son, testified that he clearly remembered visiting his father in Brockton and the day that his father's condition drastically transformed. However, he said that his father never returned to be the man he had been before his brain injury; an intelligent, athletic, gifted man who spoke three languages, and had been an honor student. James said that his father retained some of his language abilities but otherwise was unable to remember daily events. James said that he had lived with his father and grandparents on at least two occasions, for at least a year following his high school graduation in 1969 and again around 1990 for a year or more.

James also testified that, at some point in the 1980s, he was approached by his aunts, his grandmother, and his father about his father's assets. He said that they showed him a document that listed his father's assets, such as stocks that he owned. The document also laid out who the stocks were "being appropriated to" among himself, his brothers, and his aunts. He said they explained that his father's worth had reached a point where they felt that investing his money would result in a better return. He testified that his family "meant for me to be proud, and I was, that my father had acquired this much monies and that it was being invested and that he was looking towards, well, not only his own future but that he was making preparations for my future and my brothers' futures." According to James' testimony, the accounts totaled approximately $180, 000, and he was told that they were set up so that he and his brothers would each receive 30 percent of his father's assets and each of his aunts would receive 5 percent. He recalled being asked if it bothered him that his aunts were receiving some money and he explained his feelings at the time as follows:

"I always felt that * * * they were there when we were children, especially on a much more permanent basis or on a basis where they saw him and met his needs if he had any, and I'm sure they too, like, they were saddened by how his condition had deteriorated * * * but, of course, they were always kind, they showed him much love, and it was evident to me as a child and later as an adult, I never saw their affection or their loyalty, let's say, to their brother decline, it never did, I mean, and I always felt that they had his best interest at heart, and I trusted them completely."

He additionally testified that, when he returned to live with his father and grandparents, his father's condition was the same; he could not converse about current events but he had a routine that he followed every day. For approximately ten years, his father had a job at E.A. Adams Jewelry Company, to which he would take the bus.

James said that, while he was living with his father and grandparents from 1990 to 1991, it came to his attention that his father was paying for a private life insurance policy. Because his father had served in the military, James believed that the VA should be paying for the policy as part of his father's disability benefits. During the course of getting the VA to take over the policy, James, with the permission of his father, grandmother, and Howard, also changed the beneficiary form to include Glen's two children, William's grandchildren. James also learned that his father had been seeing several private physicians and dentists and believed that he should have been obtaining that care for free through the VA. James also discovered at that time that his father had been found to be competent at some earlier time, much to ...

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