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14-P-579 Appeals Court

IN THE MATTER OF THE ESTATE OF CHARLES P. GALATIS.

No. 14-P-579.

Middlesex. April 14, 2015. - September 9, 2015.

Present: Berry, Milkey, & Massing, JJ.

Will, Testamentary capacity.

Petition for probate of will filed in the Middlesex 

Division of the Probate and Family Court Department on June 12, 

2000. 

The case was heard by Maureen H. Monks, J.

Dimitrios Ioannidis for town of Skiathos.

William M. Driscoll for Syriano Kyparissou Kontos & others.

MILKEY, J. On January 15, 2000, Charles P. Galatis, then 

seventy-six years old, was admitted to Massachusetts General 

Hospital (MGH). Once admitted, he was diagnosed with stage IV 

lung cancer, and over the ensuing weeks he suffered a rapid 
2

overall decline in his physical and mental condition. Galatis 

remained hospitalized,1 and he died on February 25, 2000.

On February 9, 2000, Galatis executed a document purporting 

to be his will. The executor named in the will formally 

presented it for probate, joined by the will's principal 

beneficiary, the town of Skiathos, Greece.2 Two of the 

decedent's cousins contested the will. After a ten-day trial, a 

Probate and Family Court judge declined to allow the will, 

because she found that Galatis lacked testamentary capacity on

February 9. Because that finding is amply supported by record 

evidence, we affirm.

Background. The judge made 559 factual findings that 

totaled seventy-one pages. We summarize those findings, almost 

all of which are unchallenged, and highlight the facts still in 

dispute. See Rempelakis v. Russell, 65 Mass. App. Ct. 557, 559 

(2006).

1 On February 2, 2000, Galatis was transferred from MGH to 

Spaulding Rehabilitation Hospital (Spaulding). On February 6, 

he was readmitted to MGH after developing renal failure and a 

urinary tract infection.

2 The decedent was born in Skiathos in 1923. He was an only 

child and had no children, and his wife of thirty-three years 

died from lung cancer in 1995 or 1996. He was survived by his 

cousins, George Kyparissos, Charalambos Kyparissos, and Athena 

Perisiadou. During the pendency of the probate of Galatis's 

estate, Charalambos Kyparissos died and his heirs-at-law were 

substituted for him.

 
3

1. Galatis's background medical conditions. By the time 

Galatis was admitted to MGH, he already suffered from a long 

list of medical problems including diabetes, hyperkalemia

(excess potassium in the blood), and major depression. For such 

problems, Galatis was taking twelve different prescribed 

medications, including the antidepressant Elavil, and two 

different narcotics for pain relief. The symptoms of anxiety 

and depression worsened following his diagnosis with metastatic 

lung cancer. He therefore was prescribed a second 

antidepressant, and the dosages for both antidepressants 

subsequently were increased. His painkillers also were 

aggressively increased, and he was placed on a self-administered 

morphine drip beginning on February 8.

2. The February 1 document. When he entered MGH, Galatis 

apparently had no existing will. At some point during his 

initial hospitalization, he asked a friend, Steven Damaskos, to 

record his thoughts regarding the disposition of his property. 

Damaskos wrote down individual names that Galatis provided to

him, followed by specific amounts of money they were to receive. 

Damaskos then transcribed the information onto a will template 

form he found through an Internet search, and Galatis signed the 

resulting document on February 1, 2000. As discussed below, 

although the February 1 document was admitted in evidence at the 
4

trial on the February 9 will, it was not itself offered for 

probate prior to the conclusion of that trial.

3. Differences between the February 1 document and the 

February 9 will. An attorney brought in by Damaskos to prepare 

a proper will for Galatis was given the February 1 document as a 

starting point. The end product was the will executed by 

Galatis on February 9, 2000. The estate plan delineated in that 

will is similar in most material respects to that contained in 

the earlier document. Both documents provided for the creation 

of a charitable trust administered by a foundation in Skiathos, 

the corpus of which would consist of Galatis's real estate 

assets in Greece. Unsurprisingly, the later document drafted by 

the attorney generally is a more developed product than the 

earlier one produced by Damaskos, and many of the differences 

could best be described as refinements or minor modifications to 

the earlier plan. For example, the February 9 will provided for 

the disposition of certain personal property not enumerated in 

the February 1 document. However, the February 9 will also 

included some curious additions and omissions. The will 

included one beneficiary who -- according to uncontradicted 

testimony -- apparently does not exist, and the residuary clause 

included in the February 1 document was omitted (even though --
5

again, according to uncontradicted testimony -- the will did not 

otherwise dispose of all of Galatis's estate).3

4. The events of February 8, 2000. Sometime in the late 

afternoon of February 8, 2000 (the day before the will signing), 

Galatis was administered a dose of Ativan for his anxiety 

symptoms. Apparently as a result of an adverse reaction to the 

Ativan, Galatis became somnolent and developed a facial droop. 

He exhibited slurred speech, drowsiness, and inability to pay 

attention, and he required constant stimulation to generate 

answers to questions. After it was observed that his arms were 

flopping, he was diagnosed with asterixis, which is indicative 

of central nervous system impairment. These symptoms also led 

to Galatis being diagnosed with the underlying brain condition 

encephalopathy.

5. The extent of Galatis's temporary recovery. On the 

evening of February 8, Galatis was given a drug to try to 

reverse the effects of the Ativan. Both sides agree that the 

administration of this drug (the antidote) had some beneficial 

effects. They differ sharply, however, on the import of the 

3 Additionally, although both documents provided that 

Skiathos would be the beneficiary of a trust funded by Galatis's

real estate holdings there, the February 9 will added that his 

home in Skiathos be converted into a museum and never be sold. 

At the same time, the February 9 will -- unlike the February 1 

document -- would grant the executor a power of sale of real 

property, thus obviating the need for him or her to seek court 

approval before selling the Skiathos house. See Samra v. Yuan, 

40 Mass. App. Ct. 934, 935-936 (1996).

 
6

Ativan episode with regard to Galatis's mental state when he 

signed the will the following day. The will proponents sought 

to portray the administration of the antidote as allowing 

Galatis to make a dramatic recovery through which he regained 

sufficient capacity to execute the will. The will contestants 

asserted that while the reaction to the Ativan may have 

exacerbated Galatis's mental condition on February 8, he by that 

time was already suffering from encephalopathy, which was 

impairing his cognitive and motor functions.

6. The will contestant witnesses. The will contestants 

supported their case with expert opinion testimony from Dr. Marc 

Whaley, a forensic psychiatrist. Dr. Whaley testified from his 

review of the medical records that Galatis had exhibited 

symptoms of encephalopathy (albeit less severe) in the days 

prior to the Ativan reaction.4 He also opined that even though 

Galatis may have shown some improvement through the 

administration of the antidote, the underlying encephalopathy 

would not have abated. According to him, a person with 

encephalopathy suffers from a loss of ability to communicate, 

remain oriented, think logically, solve problems, and remember 

information.

4 Dr. Whaley testified that the encephalopathy was likely 

caused by a combination of factors, including the effect of the 

interactions of the numerous drugs he was taking and electrolyte 

imbalance from his infection, as well as multiple derangement 

due to renal failure.

 
7

The will contestants also called Dr. John Stoeckle, the 

attending physician who directed Galatis's care at MGH. Dr. 

Stoeckle was particularly well-suited to offer an opinion 

regarding Galatis's mental capacity because he had served as 

Galatis's primary care physician for the last fifteen years of 

his life. In addition, Dr. Stoeckle had examined Galatis 

throughout his hospitalization, including multiple times each 

day on February 6 through 10. Consistent with the testimony of 

Dr. Whaley, Dr. Stoeckle opined that Galatis suffered from 

encephalopathy and that as of February 9, this condition 

impaired his ability to think clearly, orient himself, speak and 

communicate, think logically, solve problems, and remember 

information.

7. The contemporaneous hospital records. The hospital 

records from February 9 (the day Galatis signed the will) 

provided some fodder for each side. A nurse's progress note 

from 6:00 A.M. on February 9 indicates that Galatis had suffered 

from the effects of Ativan throughout the night and continued to 

be "weak" and "confused [as] to place." One of the treating

physicians stated in a note from the early afternoon that 

Galatis had "recovered from last night's events" and "seem[ed]

back to baseline." However, a nurse's note indicated that as of 

1:00 P.M., although Galatis was oriented to himself, his 

whereabouts, and the time, he complained of "general confusion." 
8

In addition, a social worker who met with Galatis at 2:00 P.M.

on February 9 noted that he was "[d]ifficult to interview 

because of mental status changes," and a nursing note at 7:00 

P.M. stated that, although Galatis's condition had improved from 

the previous day, he continued to be "sleepy" and "confused" at 

times. Assessing Galatis's mental state when the will was 

signed on February 9 against the backdrop of the medical records 

was made particularly challenging by the fact that no testimony 

or other evidence established at what time that day the signing 

actually took place.5

8. The will proponents' witnesses. The will proponents 

offered the testimony of the attorney who drafted the February 9 

will. Although she attended the will signing, she had no 

personal recollection of when it was signed, nor could she 

produce any contemporaneous notes of the event. She did testify 

that, in her opinion, Galatis was of "sound mind" at the time he 

signed the will, but the judge discounted such testimony due to 

the fact that she lacked any records of ever meeting with 

Galatis alone at any point prior to the will execution, her 

"defensive demeanor" while testifying, and the fact that her 

5 On appeal, the will proponents argue that it can be 

inferred that the will was likely signed sometime between 2:30 

P.M. and 7:00 P.M. A note recorded by Dr. Stoeckle indicates 

that Galatis was to receive radiation therapy at 2:30 P.M., and 

a nurse's note from 7:00 P.M. says, "Friends here all day. 

[Galatis] [d]oes not want to be left alone. Family members 

going over [patient's] legal paper [and] will today."

 
9

claim to have met alone with Galatis was contradicted by that of

Damaskos (Galatis's friend and the author of the February 1 

document). In fact, the judge sharply criticized the lawyer for 

failing to inquire at all, at any point prior to the will 

execution, as to Galatis's mental status or medical diagnosis.

The will proponents also presented the testimony of the two 

nurses who attested to the will signing. One had no personal 

recollection of the will signing whatsoever, and she testified 

only that her general practice was not to witness a will unless

the testator was of sound mind. The other attesting nurse 

recalled that Galatis seemed "alert" at the time of the will 

signing.6

 In addition, the proponents presented the testimony of 

Dr. Ernie Paul Barrette, a physician who treated Galatis at MGH. 

Although Dr. Barrette expressed his opinion that Galatis had 

testamentary capacity on February 9, such testimony was undercut 

by several factors: even though Dr. Barrette was testifying 

only as a treating physician, not as an expert on testamentary 

capacity, he had no personal recollection of treating Galatis, 

and in any event he stopped treating Galatis on February 2.7

6 Dr. Whaley and Dr. Stoeckle both explained in their 

testimony that the term "alert" is a medical term of art meaning 

only that a patient is conscious and aware of his surroundings, 

and that the term does not refer to a patient's mental capacity.

7 The judge did not abuse her discretion in ruling that Dr. 

Barrette did not qualify as an expert on testamentary capacity. 

Nor did the judge abuse her discretion in precluding the will 

 
10

There was also testimony from several friends and family 

members, many of whom visited Galatis while he was hospitalized. 

Of the individuals who came to the hospital, only two were 

present at some point on the day of the will signing, Damaskos 

and Demetrios Skopas. Damaskos, although not a blood relative 

of Galatis, considered him to be like an uncle. Damaskos 

visited Galatis at the hospital three or four times a week, and 

testified in general terms that he found Galatis to be "clear 

minded" and "able to communicate." Damaskos was not present at 

the will signing itself. Skopas, ninety-one years of age at the 

time of trial, was a fixture at Galatis's bedside, spending 

every evening at the hospital and staying overnight 

approximately fifteen times. He testified that "he had no 

difficulty communicating with" Galatis until the day of his 

death. However, Skopas also testified that he remained in 

Galatis's hospital room during the will signing, and this 

proponents from calling a different witness as an expert based 

on discovery violations. As the will proponents accurately 

point out, even though Dr. Barrette was never qualified as an 

expert on this, he did -- in response to a question asked on 

cross-examination -- state his opinion on Galatis's mental 

capacity on February 9 based on his review of the medical 

records. However, the admission of such opinion evidence of 

course does not mean that the judge was required to credit it.

 
11

testimony revealed that he may have had some concern about 

Galatis's physical and mental condition.8

Discussion. 1. Galatis's testamentary capacity on 

February 9, 2000. As noted, the will proponents formally 

presented the February 9 will for probate, and thus the trial 

focused on whether Galatis had testamentary capacity on the date 

that will was executed.9

 Whether a testator had testamentary 

capacity is a question of fact. Duchesneau v. Jaskoviak, 360 

Mass. 730, 733 (1972). On appeal, "[i]t is our obligation to 

review the evidence and reach a decision in accordance with our 

own reasoning and understanding, giving due weight to the 

findings of the trial judge, which we will not reverse unless 

they are plainly wrong." Paine v. Sullivan, 79 Mass. App. Ct.

811, 811-812 (2011), quoting from Palmer v. Palmer, 23 Mass.

App. Ct. 245, 249-250 (1986). Although there is a presumption 

that the testator had testamentary capacity, once the 

contestants produce "some evidence of lack of testamentary 

capacity, the presumption of [capacity] loses effect" and the 

8 During the signing, Skopas asked Galatis to write his 

signature more clearly, to which Galatis responded, "Leave me 

alone." After the signing, according to Skopas, Galatis asked 

him, "I did everything right, right?" Skopas also testified 

that Galatis seemed "upset" and that "his hand was shaking."

9 The will contestants also alleged undue influence. The 

judge rejected that claim and the correctness of her findings 

and rulings on that point are not before us.

 
12

burden shifts to the proponents to prove by a preponderance of 

the evidence that the testator was able 

"to understand and carry in mind, in a general way, the 

nature and situation of his property and his relations to 

those persons who would naturally have some claim to his 

remembrance[,] . . . freedom from delusion which is the 

effect of disease or weakness and which might influence the 

disposition of his property[,] [a]nd . . . ability at the 

time of execution . . . to comprehend the nature of the act 

of making a will." 

Palmer v. Palmer, 23 Mass. App. Ct. at 250, quoting from Goddard

v. Dupree, 322 Mass. 247, 250 (1948).

We agree with the trial judge that the evidence of 

incapacity summarized above was sufficient to shift the burden 

of proof to the will proponents, and we discern no clear error 

in the judge's finding that they failed to carry that burden. 

There is no merit to the proponents' contention that the trial 

judge's finding of incapacity was based on evidence of only 

"general illness and depression." To the contrary, both Dr. 

Stoeckle (Galatis's long-term physician) and Dr. Whaley 

specifically testified that Galatis's diagnosed encephalopathy 

and myriad medications prevented him from being able to read or 

understand the provisions of a will on February 9, 2000. That 

view also found support in other evidence, such as the 

contemporaneous hospital records and the marked deterioration in 

the legibility of Galatis's signature on the will (indicative of 

significantly impaired motor function associated with 
13

encephalopathy). To be sure, there was some evidence to support 

the will proponents' position that Galatis had regained

testamentary capacity on February 9 (at whatever time that day 

he executed the will), but it was the judge's role as fact 

finder to assess all the evidence and to resolve any conflicts.10 

The record reveals that she carried out her fact-finding duties 

with uncommon care and comprehensiveness. In sum, the judge's 

finding that Galatis lacked testamentary capacity to execute the 

February 9 will enjoys ample support in the trial evidence.

2. Status of the February 1 document. Finally, we are 

called upon to address a procedural loose end regarding the 

10 The proponents suggest that the judge was required to 

reject Dr. Stoekle's testimony regarding his patient's mental 

capacity because, in response to a question on cross-examination 

about whether he understood the term "testamentary capacity," 

Dr. Stoeckle said, "I think I do not because I don't think I've 

ever had anyone ask me to do it and I don't remember discussing 

it with any colleague or lawyer or anybody." The force of this 

admission, however, is greatly diminished when it is viewed in 

the context of the rest of Dr. Stoeckle's testimony. 

Immediately after acknowledging his lack of familiarity with the 

legal term "testamentary capacity," Dr. Stoeckle clarified that 

he understood the concept "in a conceptual way, but not in a[n]

operational way." On redirect, Dr. Stoeckle again clarified 

that, irrespective of the legal terminology, it was his view 

that Galatis suffered from "mental impairment and incapacity in 

comprehending, appreciating, understanding the nature, 

significance and consequences of the contents and execution of a 

will . . . ." In any event, the judge specifically limited Dr. 

Stoeckle's testimony to his opinion as Galatis's treating 

physician. Accordingly, in her findings of fact, the trial 

judge only considered Dr. Stoeckle's opinion with respect to the 

degree of Galatis's mental and cognitive impairment; she relied 

on the testimony of Dr. Whaley as to whether or not Galatis met 

"the necessary criteria for possessing testamentary capacity."

 
14

February 1, 2000, document. Neither will proponent petitioned 

to have that document probated as Galatis's will in the event 

the February 9 will were disallowed. Hence the trial judge 

ruled that whether the February 1 document could be considered a 

valid will was not before her.11 Nevertheless, she specifically 

found that the contestants to the February 9 will did not submit 

sufficient evidence to overcome the presumption that Galatis had 

capacity on February 1, 2000, thus raising the possibility that 

the document that he signed that day could qualify as his will. 

The will proponents argue that the judge erred in not ruling 

whether the February 1 document constituted a valid will. Their 

argument rests on the premise that a particular procedural step 

that one of them took sufficed to present the February 1 

document for probate. Assessing the validity of that premise 

requires additional background detail.

The record shows that, early in the litigation, the 

proponents of the February 9 will had some confusion about what 

11 The governing statute was repealed and replaced during 

the pendency of these proceedings (something that neither side 

addresses). However, both statutes require the proponent of a 

will to file a petition for probate. See G. L. c. 192, § 1, as 

in effect prior to St. 2008, c. 521, § 12 (requirements for

filing of petition for probate); Marco v. Green, 415 Mass. 732, 

738 (1993) (interpreting G. L. c. 192, § 1, as "requiring" the 

filing of a petition); G. L. c. 190B, § 3-402(a)(1), inserted by 

St. 2008, c. 521, § 9 (Massachusetts Uniform Probate Code)

(requiring that petition for formal probate of will be filed 

requesting order "in relation to a particular instrument" 

[emphasis added]).

 
15

they should do with the February 1 document. On May 21, 2007, 

Skiathos filed a "Motion for Instructions" concerning that 

issue. In its motion, Skiathos expressed its lack of clarity as 

follows:

"It is unclear to the parties whether the Court would like 

a copy of the February 1, 2000 Will filed with this matter, 

if the Court would like a petition filed for the February 

1, 2000 Will or whether the Court would want a Motion to 

Allow this Will in the Alternative filed in this matter."

A close reading of this awkwardly phrased sentence reveals that 

Skiathos was seeking guidance on two distinct issues: first, 

whether it should file a formal petition to have the February 1 

document presented for probate, and second, whether it could 

file a copy of that document in lieu of the original because the 

original could not be located. A judge different from the trial 

judge endorsed the motion as "allowed," together with a notation 

that read, "[A]s no original exists, filing will not be 

required." In other words, the judge expressly addressed only 

the issue regarding the missing original, not what procedure 

Skiathos should use if it wanted to present the February 1 

document for probate.

We acknowledge that the motion judge's response to the 

motion for instructions may not have alleviated Skiathos's

confusion about what procedure it should have followed if it had 

wanted to present the February 1 document for probate. However, 

precisely because of that remaining uncertainty, it was 
16

incumbent on the proponents to seek further clarification from 

the court. See Coyne Industrial Laundry of Schenectady, Inc.

v. Gould, 359 Mass. 269, 275-276 (1971). Neither the will 

proponents nor the executor did so. In any event, the judge's 

incomplete response to the awkwardly phrased motion did not 

relieve the will proponents of their obligation to follow proper 

procedures. See Ferriter v. Borthwick, 346 Mass. 391, 393 

(1963) ("In situations where there is more than one will it is 

within the power of the judge to require petitions to be filed 

to probate each will and to hear them together"). Because the 

February 1 document was not presented for probate,12 the trial 

judge correctly concluded that whether it should have been 

allowed as Galatis's will was not properly before her.13

Judgment affirmed.

12 Our review of the Probate and Family Court docket reveals 

that on November 15, 2013, after judgment entered disallowing 

the February 9 will, a petition was filed to probate the

February 1 document. The fate of that petition, which 

apparently was filed by Damaskos, is not before us.

13 We deny the contestants' request for double costs, 

damages, and interest pursuant to Mass.R.A.P. 25, as appearing 

in 376 Mass. 949 (1979).

 
BERRY, J. (dissenting). I dissent because I do not think

that the trial evidence was sufficient to prove that Charles P. 

Galatis lacked the requisite testamentary capacity at the time 

he executed his will on February 9, 2000. Contrary to the 

majority, I look to material evidentiary points at trial, which

I think establish testamentary capacity.

The first trial evidentiary point of reference to which I 

look as proof of testimony capacity: during the afternoon of 

February 9, 2000, the day that Galatis signed the will, he 

manifested measurable periods of stability, lucidity, and 

awareness reflecting testamentary capacity to execute the will. 

Specifically, during the afternoon of February 9, the trial 

evidence -- including contemporaneous medical records --

demonstrated that Galatis was lucid and aware of his 

surroundings. This lucidity is clear evidence (especially when 

coupled with the testimony of the witnesses to the will, see 

discussion, infra), that Galatis knew what he was doing in 

bequesting his estate. He knew the objects of his bounty, 

primarily a Greek educational charitable trust on the island of 

Skiathos (which would be the main beneficiary of his real estate 

in Greece), but also eleven other individual beneficiaries who 

received monetary bequests. Specifically, as more fully 

detailed in part 1, infra, according to the medical records, by 

1 P.M. and 2 P.M. on February 9, Galatis had recovered from an 
2

adverse reaction to a drug (Ativan) which had been given to him 

the day before. In his recovery from the adverse drug reaction,

by February 9 in the afternoon and into early evening, Galatis 

was back at "baseline" and had regained lucidity. For example 

on February 9, at 1:00 P.M., Galatis is described in the medical 

records as "A+O x 3" -- i.e., oriented to person, place, and 

time. Similarly, at 2:00 P.M. the medical records describe 

Galatis as "recovered from last night's events" and "back to 

baseline." At 7:00 P.M. Galatis is described as "clearly better 

than yesterday," when the Ativan was administered. These 

measurable periods of clarity during the afternoon of February 

9, when added to the testimony of the witnesses to the will, 

reflect a sufficient intervening period of testamentary 

capacity. "Acting during a lucid interval can be a basis for 

executing a will." Farnum v. Silvano, 27 Mass. App. Ct. 536, 

538 (1989). See O'Rourke v. Hunter, 446 Mass. 814, 827 (2006) 

("[T]he contestants offer no evidence that she lacked 

testamentary capacity during the . . . discussions with her 

attorney or . . . when she executed her will").

The second trial evidentiary point of reference to which I 

look as proof of testamentary capacity: the testimony of the 

witnesses to the will, including the attorney who drafted the 

will and two nurses who served as attesting witnesses, all 

confirmed that Galatis was alert, responsive, of sound mind, and 
3

knew he was executing a will. In addition, other friends 

visiting Galatis on February 9 testified that Galatis was alert 

and aware when they saw him.

The third trial evidentiary point of reference to which I 

look as proof of testamentary capacity: there is an almost 

complete congruence between the contested February 9 will and a 

first will signed by Galatis on February 1. That February 1

will was drafted by a nonlawyer friend at Galatis's request, and 

it is undisputed that Galatis was of sound mind with 

testamentary capacity on February 1. It was Galatis who 

requested that an attorney draft the February 9 will to replace 

the nonlawyer's draft. As noted, the February 9 will is wholly 

consistent with Galatis's prior February 1 will bequests, 

including the creation of the Greek educational charitable 

trust, and is consistent dollar by dollar in the eleven other 

individual bequests totaling approximately $90,000.

Given the foregoing, I am not persuaded the contestants met 

the burden of proving that Galatis lacked testimony capacity. 

To the contrary, I read the trial evidence as supporting, by a 

preponderance of the evidence, that Galatis had the requisite 

testamentary capacity to execute his will on February 9. "It is 

well established that to determine testamentary capacity, [t]he 

critical question is whether the testator was of sound mind at 

the time the will was executed." Estate of Rosen, 86 Mass. App. 
4

Ct. 793, 798 (2014), quoting from O'Rourke v. Hunter, supra. 

"At the time of executing a will, the testat[or] must be free 

from delusion and understand the purpose of the will, the nature 

of [his] property, and the persons who could claim 

it." O'Rourke v. Hunter, supra at 826-827. Cf. Daly v. Hussey, 

275 Mass. 28, 29 (1931).

There is no dispute that the will was signed during the day 

on February 9 and, as referenced above, that Galatis was of 

sound mind, alert, and responsive during a major afternoon 

segment on that day. Indeed, the majority acknowledges that 

"[a]ssessing Galatis's mental state when the will was signed on 

February 9 against the backdrop of the medical records was made 

particularly challenging by the fact that no testimony or other 

evidence established at what time that day the signing actually 

took place." Ante at . But even though the precise time of 

signature is not provable, to accept the majority's position 

would be to accept the proposition that Galatis was not of sound 

mind to execute his will at any time on February 9. That is not 

so.

I turn to more details concerning the three points of the 

trial evidence which, I believe, show testamentary capacity.

1. The medical evidence. I begin with the contemporaneous 

medical records. At approximately 4:30 P.M. on February 8, 

2000, the day before the will was signed, Galatis was given the 
5

drug Ativan. He had adverse reactions including a facial droop, 

confusion, drowsiness, asterixis, and a temporary diagnosis of 

encephalopathy. But quickly after the adverse reaction, Galatis 

was given flumazenil, an antidote to Ativan. Dr. Barrette 

testified that "Mr. Galatis received his first dose of 

Flumazenil at 6:00 P.M., 90 minutes after the Ativan was given, 

and a second dose one hour later at 7:00 P.M." Another 

physician, Dr. Whaley, confirmed that "because Flumazenil is an 

antidote . . . it can reverse the effects of Ativan." A third 

physician, Dr. Stoeckle, corroborated that flumazenil is an 

antidote to Ativan.

Medical notes reveal that during the early hours of the 

next morning on February 9, Galatis was still not at baseline. 

At approximately 6:00 A.M., a nurse's note states that Galatis 

was "lethargic most of the night . . . Ativan reaction. 

Arousable to voice. . . . [s]till weak but more responsive to 

pain. Alert but confused to place." At 11:00 A.M. Galatis 

still had lingering effects from the Ativan as "[h]is mental 

status is not [at] baseline."

According to the medical records, however, as time passed 

to the afternoon, there was a significant turning point in 

Galatis's condition as he recovered from the adverse effects of 

Ativan, the antidote flumazenil took effect, and Galatis 

returned to "baseline." This is important, because from all 
6

that appears, including the testimony by the attorney and the 

nurses who witnessed the will, there was stabilization noted at 

1:00 P.M. and continuing throughout the afternoon of February 9, 

all of which supports testamentary capacity.

The stabilization is noted in a 1:00 P.M., nurse's note 

stating that "pt stated he 'felt better.' Pt. A+O x 3 [a term 

meaning a patient who is oriented to person, place and time], 

but stated he had 'general confusion.'" This note is 

corroborated by Dr. Stoeckle's note of 1:30 P.M. that Galatis 

was "[a]lert at moment. To radiation Rx at 2:30. Again 

reiterated goals with patient. Ready for transfer AM."

At about 2:00 P.M. on February 9, the medical records 

describe further stabilization and recovery: "pain services 

helped pt learn to use PCA. Pt recovered from last night's 

events . . . . Pt seems back to baseline." Dr. Stoeckle's notes 

from the same time period describe Galatis as "quite alert," and 

"mood up, without complaint of pain!" Lastly, as night 

approached, at 7:00 P.M., a nurse's note states that Galatis was 

"clearly better than yesterday." He "continues to be sleepy and 

at times confused and he is aware of confusion." The note also 

describes that "[f]amily members going over pt legal paper and 

will today."1

1 Given the totality of the trial evidence that Galatis was 

lucid and alert at the time of the will signing, including 

 
7

The majority (as did the trial judge) relies heavily on the 

expert testimony of Dr. Whaley. However, Dr. Whaley was not a 

treating physician but rather a psychiatrist who never examined, 

treated, or even met Galatis. See Union Trust Co. of 

Springfield v. Kittredge, 298 Mass. 515, 516 (1937) (opinions of 

psychiatrists that decedent was of unsound mind were 

insufficient to raise issue of capacity in light of detailed 

evidence from "physician and nurses who actually treated and 

cared for the decedent"); Nichols v. Sullivan, 340 Mass. 783, 

783-784 (1959) ("The expected testimony of psychiatrists who had 

not seen the decedent . . . was of substantially less weight 

than [the proponents' evidence] which would support a finding of 

testamentary capacity"). The majority also cites to Dr. 

Stoeckle's trial testimony that Galatis was mentally impaired 

throughout February 9 and could not understand the nature and 

significance of executing a will. See ante at . But Dr. 

Stoeckle's trial testimony directly conflicts with his 

contemporaneous 1:30 P.M. medical record entry of Galatis's

recovery on February 9 in which Dr. Stoeckle wrote that Galatis 

especially the medical records, it is inferentially reasonable 

to conclude that the will was likely signed in the afternoon. 

This inferential timeline is supported by post 2:00 P.M. medical 

record entries as well as the nurse's note at 7:00 P.M. about 

legal papers and a will signing. The proponents of the will 

also submit there was an afternoon will signing.

 
8

was "quite alert," and "mood up, without complaint of pain!"2 

Further, Dr. Stoeckle conceded on cross-examination that he did 

not know what it meant to have, or not have, testamentary 

capacity. And, I note there was a hotly contested trial debate 

whether Dr. Stoeckle's affidavit, which was prepared in

connection with the will contest and which includes a negative 

opinion about testamentary capacity, had been drafted by the 

trial attorney for the contestants notwithstanding the 

conflicting entry by Dr. Stoeckle in the contemporaneous 

February 9 medical records.

2. Witnesses to the will and other witnesses. In addition 

to the medical records which reflect Galatis's lucidity and 

ability to execute a will knowing the Greek charity and other 

beneficiaries, the trial evidence included the eyewitness 

testimony of three attesting witnesses to Galatis's will 

signing. The drafting attorney and the two nurses who witnessed 

the execution of the will on February 9 all testified that 

Galatis was alert, responsive, and of sound mind. Specifically, 

Attorney O'Neil testified that in her opinion, Galatis 

understood the contents of the will at the time it was executed 

2 The majority's reliance on the handwriting in Galatis's 

signature on the February 9 will, as compared to his signature 

on earlier medical consent forms and the February 1, 2000, will, 

is tenuous. Our case law makes clear that a testator's 

signature to a will need not be in any particular form. See 

Chase v. Kittredge, 11 Allen 49, 53 (1865).

 
9

and that Galatis also understood the nature of his bounty, was 

of sound mind at the time he executed his February 9 will, and 

had testamentary capacity. Nurse Maryann Benoit observed 

Galatis to be alert, of sound mind, and seeming to understand 

the act of making a will. Benoit testified that, based on her 

observations, Galatis was aware that he was signing a will, that 

he knew that he was signing a will, that he was aware of who was 

around him when the will was signed, and that he "was alert and 

knew what he was doing." Nurse Jennifer Mathisen testified that 

while she did not have a personal recollection of the will 

signing ceremony, she would not have attested to the signing of 

the will if Galatis were not competent to sign. See Farrell

v. McDonnell, 81 Mass. App. Ct. 725, 727-731 (2012).

The testimony of the attorney and the witnesses to the will 

as to Galatis's lucidity was corroborated by the testimony of 

Galatis's friends, Steven Damaskos and Demetrios Skopas. 

Damaskos testified that "he found Mr. Galatis to be clear minded 

and able to communicate during his visits at the hospital," and 

Skopas testified that he had no difficulty communicating with 

Galatis until the day of his death and that when Galatis 

executed the February 9 will "[h]e had a clear mind."

3. The will consistency. I also consider as support for 

Galatis's testamentary capacity that the will signed February 9, 

which was prepared by an attorney, was a virtual dispositional 
10

match to the first will signed February 1, which was prepared by 

a nonattorney and signed by Galatis eight days before, when it 

is undisputed that Galatis was of sound mind with testimony 

capacity.

Specifically, the February 9 will is materially consistent 

with the principal dispositional wishes of the first February 1, 

2000, will, including the creation and formation of the Greek 

educational charitable trust which was Galatis's principal 

bounty. Both the February 9 will and the February 1 will 

contain consistent provisions providing for Galatis's current 

tenants in one of his real estate holdings in Greece to remain 

there rent free for as long as they lived. Additionally, both 

the February 9 will and the February 1 will are consistent in 

appointing Skopas the executor. Finally, both wills name 

Eugenia Bodenlos, a friend of Galatis's, as the contingent 

executor. The February 9 will only differs in a minor change in 

the makeup of the administrative committee which was to oversee 

the assets of the Greek charitable trust. There were other 

important points of similarity apart from the educational 

foundation. For example, the February 9 will and the February 1 

will both provide for eleven individual monetary bequests, 

naming the exact same eleven beneficiaries.

"Testamentary capacity requires ability on the part of the 

testator to understand and carry in mind, in a general way, the 
11

nature and situation of his property and his relations to those 

persons who would naturally have some claim to his 

remembrance." Goddard v. Dupree, 322 Mass. 247, 250 (1948). 

These beneficiary and dispositional similarities are remarkably 

consistent and reflect that Galatis was able to fully understand 

the provisions of a will on February 9. The will consistencies 

are further evidence that Galatis had the ability to understand 

and appreciate the nature of his property and to execute a will 

knowing the objects of his bounty on February 9.

For all of these reasons I dissent. The trial record I 

conclude by a preponderance of the evidence proves that Galatis 

had testamentary capacity.