This section contains the nature of the case and procedural background.

Heather died. She was forty-eight years old. Heather was single and had been in a long-term relationship with her partner, Donald Etchison; Gibney (P) was her neighbor and friend of many years. P was Heather's primary health care proxy. Heather did not have children. She was predeceased by her parents but survived by her brother, John. Heather had executed a will. Heather devised cash assets held in “Baird accounts and U.S. Trust accounts” to her mother, Ethel Wyman, “if she survives me.” At the time of the will's execution, Wyman was eighty-five years old. In addition, Heather devised cash assets held in “Fidelity accounts” to John, the only other living member of her immediate family. His devise was also conditioned “if he survives me.” The will specified the meaning of “surviv[ing]” the decedent, providing: “Requirement of Survival. No beneficiary shall be considered to have survived me and to be entitled to any of my estate unless such beneficiary survives me for at least NINETY (90) days.” Heather left all her tangible personal property and her real property to Etchison. Etchison's devises were “per stirpes.” Heather named P the devisee of the residuary estate, which was “per stirpes.” The attorney who drafted the will could not recollect many of the details of his conversations with Heather. He testified that because he knew that Wyman was elderly, he had explained to Heather that if Wyman predeceased her, the Baird and U.S. Trust account assets would lapse to the residuary estate and be distributed to P, the devisee of the residuary estate. The attorney could not recall which Massachusetts statutes, if any, he had consulted in connection with his advice to Heather. P was appointed the personal representative of the estate. Counsel for the estate informed John that, because Wyman did not survive Heather, the devise to Wyman lapsed, and that the U.S. Trust accounts would fall to the residuary estate. John challenged this interpretation of the will, contending that the anti-lapse statute required that the failed devise fall to him. P filed a complaint, seeking a declaration that the words “if she survives me” evinced the decedent's intent to avoid application of the anti-lapse statute. P was given summary judgment. D appealed.

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