United States Court of Appeals For the First Circuit

No. 20-1942

MERRILL LYNCH, PIERCE, FENNER & SMITH, INC.,

Plaintiff, Appellee,

v.

KATHERINE FLANDERS-BORDEN,

Defendant, Appellant,

WILLIAM J. SHERRY; DAVID E. FLANDERS; KARYN S. BEEDY; BRETT L. PETERSON,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

[Hon. George A. O'Toole, Jr., U.S. District Judge]

Before

Lynch and Kayatta, Circuit Judges, and Laplante,* District Judge.

Scott E. Adams for appellant. Nellie E. Hestin, with whom McGuireWoods LLP was on brief, for appellee Merrill Lynch, Pierce, Fenner & Smith, Inc. Hilary S. Schultz, with whom Shultz Law, LLP was on brief, for appellees William J. Sherry, David E. Flanders, Karyn S. Beedy, and Brett L. Peterson.

* Of the District of New Hampshire, sitting by designation. August 26, 2021 KAYATTA, Circuit Judge. This appeal concerns the

validity of a Transfer on Death Agreement ("TOD Agreement")

executed by Alton L. Flanders, III. The TOD Agreement relates to

an account containing a subset of Flanders's assets for which

Merrill Lynch, Pierce, Fenner & Smith, Inc. ("Merrill Lynch") acts

as custodian. If valid, the TOD Agreement avoids probate of an

at-death transfer of the account assets to five designated

beneficiaries, as follows: 20% to Flanders's daughter Katherine

Flanders-Borden ("Borden"), 20% to Flanders's brother David

Flanders ("David"), and 40%, 10%, and 10%, respectively, to three

of Flanders's friends -- William Sherry, Karyn Beedy, and Brett

Peterson. After Flanders died intestate, David, Sherry, Beedy,

and Peterson (the "consenting beneficiaries") consented to the

distribution of the account assets per the terms of the TOD

Agreement. Borden, however, claimed that Flanders lacked the

mental capacity to enter into the TOD Agreement and that all of

the assets distributed by the agreement should therefore revert to

his estate, of which she is the sole executor and heir.

To resolve the dispute about how the TOD Agreement assets

should be distributed, Merrill Lynch commenced this interpleader

action, joining Borden and the four consenting beneficiaries as

interpleader defendants. Without opposition from any party,

Merrill Lynch moved for and obtained a discharge of any and all

liability arising from the dispute. The district court

- 3 - subsequently granted summary judgment to the consenting

beneficiaries, holding that no reasonable jury could find on the

summary judgment record that Borden had met her burden of showing

Flanders lacked capacity at the time he entered into the TOD

Agreement. After the district court denied Borden's motion for

reconsideration, she timely filed this appeal. For the following

reasons, we affirm.

I.

Borden presents three claims of error on appeal:

(1) Flanders's estate should have been joined in this action;

(2) the district court applied the wrong state's law in deciding

the motion for summary judgment; and (3) the district court erred

in granting summary judgment to the consenting beneficiaries.1 We

consider each claim in turn, supplying background facts as

necessary along the way.

A.

We begin with Borden's contention that Flanders's estate

is a required party under Rule 19 of the Federal Rules of Civil

Procedure and that remand is therefore required to allow the

joinder of the estate. We normally review Rule 19(a)

determinations for abuse of discretion. See Picciotto v. Cont'l

Cas. Co.,

(1st Cir. 2008). Here, however, the

1 At oral argument, Borden expressly waived the challenge made in her opening brief to Merrill Lynch's discharge.

- 4 - issue of whether the estate is a required party was never raised

below, and so there is no determination to review. Appellees

therefore urge us to consider this claim waived.

It hardly bears repeating that as a general matter,

"arguments not raised in the district court cannot be raised for

the first time on appeal." Sierra Club v. Wagner,

(1st Cir. 2009). Application of that general principle, however,

is not necessarily straightforward in the context of Rule 19, see

generally 7 Charles Alan Wright & Arthur R. Miller, Federal

Practice and Procedure § 1609 (3d ed. 2021), and it appears that

our circuit has not yet decided whether a claim that a required

party has not been joined is waived by failing to raise it in the

district court. We need not resolve the issue of waiver, however,

because even assuming Borden's Rule 19 argument was not waived in

the district court, it is clear that Flanders's estate is not a

required party.

Rule 19 is geared toward circumstances "where a lawsuit

is proceeding without a party whose interests are central to the

suit." Bacardi Int'l Ltd. v. V. Suárez & Co.,

(1st

Cir. 2013). Under the rule, such a party must be joined when

feasible. Fed. R. Civ. P. 19(a). When joinder is not possible,

the court must determine whether the action should proceed among

the existing parties or be dismissed. Fed. R. Civ. P. 19(b). We

have emphasized that Rule 19 "calls for courts to make pragmatic,

- 5 - practical judgments that are heavily influenced by the facts of

each case." Bacardi,

; see also Pujol v. Shearson/Am.

Express, Inc.,

(1st Cir. 1989) (Breyer, J.)

(explaining that Rule 19(a) requires courts to "decide whether

considerations of efficiency and fairness, growing out of the

particular circumstances of the case, require that a particular

person be joined as a party").

A person is a "required party" who must be joined under

Rule 19(a) if "in that person's absence, the court cannot accord

complete relief among existing parties" or if

that person claims an interest relating to the subject of the action and is so situated that disposing of the action in the person's absence may:

(i) as a practical matter impair or impede the person's ability to protect the interest; or

(ii) leave an existing party subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations because of the interest.

Fed. R. Civ. P. 19(a)(1)(A)–(B). Flanders's estate satisfies none

of these criteria.

First, even in the estate's absence, the court could

(and did) accord complete relief among the existing

parties: Merrill Lynch, as interpleader plaintiff, was discharged

of liability arising from the interpleader action and the

underlying dispute, and the court determined the rights under the

- 6 - TOD agreement of all five beneficiaries, each of whom was joined

as an interpleader defendant. Aside from baldly asserting that

"[a]bsent joinder of the estate, complete relief cannot be

granted," Borden develops no argument to the contrary.

Second, even assuming the estate can claim an interest

in the outcome of this dispute despite the fact that it is an

outsider to the TOD Agreement, proceeding in the estate's absence

did not "as a practical matter impair or impede" its ability to

protect that interest. Fed. R. Civ. P. 19(a)(1)(B)(i). We have

explained that where the interests of an absent party are aligned

closely enough with the interests of an existing party, and where

the existing party pursues those interests in the course of the

litigation, the absent party is not required under Rule 19. See

Bacardi,

; see also Shearson,

-

36; Fed. Ins. Co. v. Singing River Health Sys.,

(5th Cir. 2017). The interests of the absent and existing parties

need not be "virtually identical." Bacardi,

.

Throughout this dispute, Borden has argued that the TOD

Agreement is voidable on the basis that Flanders lacked capacity

to enter into it. As Borden acknowledges, that is precisely the

position she would expect the estate to take were it too a party,

because the TOD account assets would revert to the estate if the

TOD agreement were voidable. See

; Shearson, 877 F.2d

- 7 - at 135-36. The interests of Borden and the estate are therefore

identical -- or very nearly so.

In her reply brief, Borden makes a belated attempt to

identify interests that the estate could not protect due to its

absence: "unreleased estate tax liens" on the TOD account assets

and an alleged failure on the part of Merrill Lynch to receive an

"estate tax waiver" as required by the TOD Agreement. Borden

failed to raise these arguments in her opening appellate brief,

and she failed to develop the factual foundation for either

argument: She provided no evidence that the estate is subject to

any estate tax liens or, as required by the TOD Agreement, that an

estate tax waiver is required in Massachusetts. We therefore deem

these arguments waived on appeal. See United States v. Casey,

(1st Cir. 2016) (deeming arguments raised for first

time in reply brief waived); United States v. Zannino,

(1st Cir. 1990) ("[W]e see no reason to abandon the settled

appellate rule that issues adverted to in a perfunctory manner,

unaccompanied by some effort at developed argumentation, are

deemed waived.").

It is of no help to Borden that she was joined in her

individual capacity, rather than in her capacity as executor of

the estate. Even as "just" an individual, her only interest in

this lawsuit is in advocating for an outcome that redirects the

assets to the estate and ultimately to her as sole heir. In

- 8 - pragmatic terms, for purposes of this litigation, Borden and the

estate are one: Borden possessed in equal measure every interest

that the estate has in the outcome of this lawsuit, and with no

conflicting interest. Moreover, as an active participant in the

litigation, Borden was aware of the estate's potential interest in

its outcome and was capable, as executor, of asserting that

interest through a motion to intervene. The fact that Borden was

"well aware of this situation," yet "never moved to intervene" on

behalf of the estate, indicates that she did not deem the estate's

"interests substantially threatened by the litigation." United

States v. San Juan Bay Marina,

(1st Cir.

2001); see also Singing River Health Sys.,

. Even

under our assumption that Borden's Rule 19 claim is not waived, it

would be inequitable to allow Borden to sit on her hands throughout

years of litigation only to now assert the estate's interest. See

Wright & Miller, supra, § 1609 (explaining that Rule 19 "is based

on equitable principles"); Provident Tradesmens Bank & Tr. Co.,

390 U.S. at 120-21 (noting the equitable origins of joinder

jurisprudence).

Borden also argues that joinder is required because the

estate's absence leaves "an existing party subject to a substantial

risk of incurring double, multiple, or otherwise inconsistent

obligations." Fed. R. Civ. P. 19(a)(1)(B)(ii). This is because,

according to Borden, the estate may attempt to "re-litigat[e]

- 9 - competency."2 Only the consenting beneficiaries and Merrill Lynch

would face such a risk, however, and none of them have complained,

either in the proceedings below or in this court. Indeed, before

us they have vigorously opposed Borden's assertion that the estate

must be joined. Particularly given the nonjurisdictional and

pragmatic nature of Rule 19, see Lincoln Prop. Co. v. Roche,

(2005); Pujol, 877 F.3d at 134-35, we decline Borden's

request to remand for joinder at this late date based on the

potential risk of multiple obligations borne by parties who do not

themselves seem concerned, see Bevan v. Columbia Broad. Sys., Inc.,

(S.D.N.Y. 1968) (holding plaintiffs

"lack[ed] standing" to assert joinder based on

Rule 19(a)(1)(B)(ii) because "[i]f the defendants, as appears to

be the case, are content to risk a possible double liability, that

is their concern and it hardly lies in plaintiffs' mouths to urge

such solicitous protection upon them"); cf. Provident Tradesmens

Bank & Tr. Co., 390 U.S. at 110 (holding that although a "defendant

may properly wish to avoid multiple litigation, or inconsistent

relief," if "[a]fter trial . . . the defendant has failed to assert

this interest, it is quite proper to consider it foreclosed").

2 In her reply brief, Borden also asserts that the estate may attempt to relitigate estate tax liens, but that argument is waived for failure to raise it in her opening appellate brief.

- 10 - We also note that, aside from a bald assertion, Borden

develops no basis for contending that the estate will not be bound

by the judgment in this case, given her presence as a party.3

Though we do not here decide that question, Rule 19(a)(1)(B)(ii)

is concerned with a "substantial risk" of inconsistent

obligations. Fed. R. Civ. P. 19(a)(1)(B)(ii); see Wright & Miller,

supra, § 1604 (explaining that the "key is whether the possibility

of being subject to multiple obligations is real" and that "an

unsubstantiated or speculative risk is insufficient"); Bacardi,

(holding no joinder necessary where "risk of

inconsistency may be theoretically possible, but is not a practical

concern"). We are not convinced that the risk of inconsistent

obligations is "substantial" under the circumstances.4

Finally, to the extent Borden argues the policy of

judicial efficiency underlying Rule 19 warrants remand for joinder

of the estate, we cannot agree: particularly given the nearly

three years of proceedings in the district court and the fact that

the case has "reached the Court of Appeals," there is "no

reason . . . to throw away a valid judgment." Provident Tradesmens

3 Were Borden correct on this point, it would mean that the estate likely has an interest in not being joined. 4 In describing, and rejecting, Borden's argument, we do not mean to suggest that we agree the estate can sit by without intervening and then claim not to be bound by a ruling against Borden.

- 11 - Bank & Tr. Co., 390 U.S. at 116; see also Pujol, 877 F.3d at 134

(explaining that Rule 19, together with the other joinder rules,

"aims 'to achieve judicial economies of scale by resolving related

issues in a single lawsuit,' while at the same time preventing

'the single lawsuit from becoming fruitlessly complex or

unending.'" (emphasis added) (quoting Smuck v. Hobson,

(D.C. Cir. 1969))).

B.

We consider next Borden's claim that the district court

erred by applying Massachusetts law instead of New York law.

Borden's argument hinges on the TOD Agreement's choice-of-law

provision, which states: "This Agreement shall be governed by,

construed, administered, and enforced according to the laws of the

State of New York." Appellees urge us to disregard this provision.

On this issue, irony reigns. The party challenging the formation

of a contract asks us to enforce a provision of that contract,

while the parties seeking to enforce the contract disclaim the

applicability of that provision.

Irony to one side, Borden simplifies matters for us by

having failed to raise her choice-of-law argument in the district

court. The argument is therefore forfeited, and we need not

consider it. See Sierra Club,

. Even if we were to

review for plain error, however, Borden could not prevail. See

Fothergill v. United States,

(1st Cir. 2009).

- 12 - Under that "formidable" standard of review, Borden must show

"(1) that an error occurred (2) which was clear or obvious and

which not only (3) affected the [appellant's] substantial rights,

but also (4) seriously impaired the fairness, integrity, or public

reputation of judicial proceedings."

(alteration in

original) (quoting United States v. Duarte,

(1st

Cir. 2001)).

We apply Massachusetts choice-of-law rules to determine

the applicable law. Klaxon Co. v. Stentor Elec. Mfg. Co.,

(1941). "Massachusetts will give effect to a choice

of law provision" where doing so is "fair and reasonable." Realty

Fin. Holdings, LLC v. KS Shiraz Manager, LLC,

(Mass. App. 2014) (citing Morris v. Watsco, Inc.,

(Mass. 1982)). There is an exception, however, "where the

validity of the contract's formation is challenged, as with a claim

of precontract misrepresentation or fraud in the inducement, in

which case it is less likely that the contract's choice of law

provision will be honored." Id. at 355.5

5 Borden argues this exception is limited to claims of fraud, but the case law speaks broadly of claims challenging "the validity of the contract's formation." Realty Fin. Holdings,

. And Borden's invocation of Lambert v. Kysar,

(1st Cir. 1993), which discusses a fraud exception to application of forum-selection clauses, not choice-of-law provisions, does not convince us that we should ignore such clear language.

- 13 - Here, the TOD Agreement's choice-of-law provision states

the agreement will be "governed by, construed, administered, and

enforced" according to New York law. But Borden's challenge is to

the formation of the contract, and she does not ask us to construe,

administer, or enforce the agreement. See Ne. Data Sys., Inc. v.

McDonnell Douglas Comput. Sys. Co.,

(1st Cir.

1993) ("Because this claim concerns the validity of the formation

of the contract, it cannot be categorized as one involving the

rights or obligations arising under the contract. Hence, the claim

falls outside the contract's choice-of-law provision." (emphasis

in original)). The district court therefore committed no plain

error in applying Massachusetts law to Borden's claim.

C.

Lastly, we turn to Borden's claim that the district court

improperly granted summary judgment to the consenting

beneficiaries. We review orders granting summary judgment de novo.

Pac. Indem. Co. v. Deming,

(1st Cir. 2016). In

undertaking that review, we must "constru[e] the record in the

light most favorable to the non-moving party and resolv[e] all

reasonable inferences in that party's favor." Pierce v. Cotuit

Fire Dist.,

(1st Cir. 2014). Summary judgment

is appropriate where the record reveals "no genuine dispute as to

any material fact" and the moving party "is entitled to judgment

as a matter of law." Fed. R. Civ. P. 56(a).

- 14 - As noted above, Borden claims the TOD Agreement is

voidable because Flanders lacked capacity to enter into the

agreement. The consenting beneficiaries moved for summary

judgment, arguing Borden failed to present any evidence regarding

Flanders's capacity. The motion was supported by affidavits from

each of the consenting beneficiaries and two of Flanders's

attorneys.

Borden failed to file a timely opposition. Instead, she

filed a motion for enlargement of time. The district court granted

Borden a twenty-one-day extension but advised Borden that she

"should not expect any further continuances." Borden missed the

extended deadline. Over a month late, she filed an "answer" to

the motion for summary judgment. A few months later, Borden filed

a motion for leave to file an amended opposition to the motion for

summary judgment, as well as an "emergency motion" containing

"newly uncovered evidence."

Borden's three late filings contained evidence she

claimed demonstrated Flanders's incapacity, consisting principally

of medical records from Flanders's hospitalization from October 30

to November 16, 2015, four months before Flanders signed the TOD

Agreement. According to those records, Flanders had been "more or

less appropriately managing his own affairs until" mid-October

2015, when he developed "confusion and hostility/paranoid

ideation" towards his caretakers, which led to a brief period of

- 15 - hospitalization on October 19, 2015. The doctors "[s]uspect[ed]"

these symptoms were "substance abuse related." Flanders had an

"extensive history of substance abuse/alcohol use disorder," a

toxicology screen revealed he had been taking "benzodiazepines and

opiates," and he had apparently been drinking around "a bottle of

wine a day." The doctors "[a]nticipate[d]" Flanders's symptoms

would "substantially clear over several days," apparently because

Flanders had experienced a "strikingly similar" substance-abuse-

related "delirium" a year earlier, but it had cleared in a similar

amount of time. The records also contained a "Notice of

Determination of Patient Incapacity" dated November 5, 2015. In

that document, a doctor determined that Flanders lacked "capacity

to make or communicate health care decisions" pursuant to

Massachusetts law. See Mass. Gen. Laws ch. 201D, § 6. The doctor

described Flanders's incapacity as being caused by "neurocognitive

disorder," "irreversible," of "moderate" extent, and of "long

term" duration. See id. ("The determination [of patient

incapacity] shall . . . contain the attending physician's opinion

regarding the cause and nature of the principal's incapacity as

well as its extent and probable duration."). Elsewhere, the doctor

diagnosed Flanders with "[p]robable major vascular neurocognitive

disorder with behavioral disturbance." Before Flanders was

discharged to his home, the doctors described him as "alert," "very

- 16 - insightful," and "[a]ware of his discharge plans," but also stated

that he had "residual confusion" and "[p]oor judgment and insight."

The district court struck Borden's untimely opposition

and denied her subsequent motions; the hospitalization records

were therefore not included in the summary judgment record

considered by the court. The court then granted the consenting

beneficiaries' motion for summary judgment, holding that "[o]n

th[e] summary judgment record, no reasonable factfinder could find

that at the time of the [TOD Agreement], [Flanders] was incapable

of understanding and deciding upon its terms or was unable to act

in a reasonable manner in relation to the transaction."

The court explained that its decision was based on the

following undisputed facts taken from the affidavits accompanying

the consenting beneficiaries' motion. Flanders had expressed to

his friends, his brother, and his long-time personal attorney that

he did not want to leave his full estate to Borden. To that end,

Flanders spent years working with one of his lawyers, Jessie McCann

Brescher, to craft an estate plan that would provide for the

consenting beneficiaries. He met with Brescher in February 2016

to discuss setting up a TOD account for that purpose. Flanders

then "obtained a blank TOD certificate, gathered the information

necessary to complete it, including obtaining the mailing

addresses and social security numbers for the five people he wanted

to name as beneficiaries, and provided the information to Brescher

- 17 - to complete." According to Brescher's affidavit, Flanders signed

the TOD certificate in her presence on March 22, 2016, after

reading it, indicating he had no questions, and stating that he

was signing voluntarily as his free act and deed. Brescher's

affidavit states Flanders was "lucid" and "mentally alert" and

that she "ha[s] no doubt that [Flanders] understood what he was

doing on March 22, 2016 when he signed the TOD Certificate, what

the document was designed and intended to accomplish, and to whom

he was planning to leave specified portions of his stock."

Finally, the court explained that "multiple individuals who were

in contact with [Flanders] around the time he signed the TOD

Agreement have attested to his mental soundness, and there is no

medical evidence in the summary judgment record to the contrary."

Although two affiants acknowledged Flanders's two-week

hospitalization from October to November 2015, they stated that at

all other times he "seemed in full control of his mental faculties"

and only took medications prescribed by his doctor.

On appeal, Borden trains her attention on the district

court's conclusion that there was no medical evidence in the

summary judgment record belying Flanders's mental soundness.

Borden does not argue that the court was wrong to exclude her

untimely filings. Rather, she suggests that Sherry's affidavit in

support of the consenting beneficiaries' motion itself referred to

the medical records she sought to introduce. Therefore, according

- 18 - to Borden, the record contained a genuine issue of material fact

foreclosing summary judgment. The consenting beneficiaries

dispute that Sherry's affidavit referred to those records. They

also argue that the medical records Borden relies upon are

unauthenticated and constitute inadmissible hearsay. Even

assuming the medical records were properly presented to the court

for consideration in connection with the summary judgment motion,

however, we conclude that they fail to raise a genuine dispute of

material fact as to Flanders's contractual capacity.

Under Massachusetts law, a "contract is voidable by a

person who, due to mental illness or defect, lacked the capacity

to contract at the time of entering into the agreement." Sparrow

v. Demonico,

(Mass. 2012). Contractual

incapacity exists where a party is either "incapable of

understanding and deciding upon the terms of the contract,"

(quoting Wright v. Wright,

(Mass. 1885)), or

where, "by reason of mental illness or defect, [the person] is

unable to act in a reasonable manner in relation to the transaction

and the other party has reason to know of his condition," id. at

302 (alteration in original) (quoting Krasner v. Berk,

(Mass. 1974)). In either case, "medical evidence is

necessary to establish that a person lacked the capacity to

contract due to the existence of a mental condition." Id. at 304.

"The inquiry as to the capacity to contract focuses on a party's

- 19 - understanding or conduct only at the time of the disputed

transaction," id. at 303, and the "burden is on the party seeking

to void the contract to establish that the person was incapacitated

at the time of the transaction," id. at 301.6

Borden's primary argument is that the hospitalization

records are evidence of Flanders's mental incapacity; that no

witness presented evidence of successful treatment or cure of his

conditions; and that a reasonable jury could therefore infer that

Flanders was incapacitated at the time he signed the TOD Agreement.

Borden does not distinguish between the acute episode of confusion

and paranoia induced by substance abuse and the neurocognitive

disorder diagnosis. In either case, though, her argument fails.

The relevant inquiry is Flanders's mental state "at the

time of the disputed transaction." Id. 303. Flanders's

hospitalization, however, was four months prior to his execution

6Borden argues that Sherry admitted he was in a fiduciary relationship with Flanders and that the consenting beneficiaries therefore bear the burden of proof. This argument, raised for the first time in Borden's reply brief, is waived. See United States v. Tosi,

(1st Cir. 2018) ("[A]rguments available at the outset but raised for the first time in a reply brief need not be considered."). Even if we were to overlook that waiver and assume Sherry was a fiduciary of Flanders, the case cited by Borden holds only that a "fiduciary who benefits in a transaction with the person for whom he is a fiduciary bears the burden of establishing that the transaction did not violate his obligations." Cleary v. Cleary,

(Mass. 1998) (emphasis added). Cleary does not mention capacity, let alone shift the burden of proving capacity to the fiduciary.

- 20 - of the TOD Agreements. On these facts, that chronology is fatal

to any argument of incapacity based on the substance-abuse-induced

episode of confusion. Perhaps a reasonable jury could infer that

Flanders's confusion persisted for a short time after his

discharge. But a finding that Flanders lacked capacity four months

later, based solely on the acute bout of confusion -- in the face

of uncontroverted evidence of his mental lucidity at all relevant

times, including most importantly during the transaction at issue

-- would amount to mere speculation.7 More is needed to establish

a genuine dispute of material fact, particularly since Borden bears

the ultimate burden on the issue of contractual competence. See

Mariasch v. Gillette Co.,

(1st Cir. 2008)

("[S]ummary judgment cannot be defeated by relying on improbable

inferences, conclusory allegations, or rank speculation." (quoting

Ingram v. Brink's, Inc.,

, 228–29 (1st Cir. 2005)));

Mesnick v. Gen. Elec. Co.,

(1st Cir. 1991) ("On

issues where the nonmovant bears the ultimate burden of proof, he

must present definite, competent evidence to rebut the motion.").

Conversely, and favorably to Borden, we may assume that

a reasonable jury could find that Flanders's "[p]robable,"

neurocognitive disorder persisted at the time he signed the TOD

7 Nor did Borden provide any evidence to contradict the consenting beneficiaries' testimony that Flanders was apparently "following his doctors' advice and . . . taking only the medications they prescribed."

- 21 - Agreement, given that his "patient incapacity" was described by

the doctor as "irreversible" and "long term." But Borden makes no

argument that the doctor's determination in November 2015 that

Flanders lacked "capacity to make or communicate health care

decisions" under Massachusetts law means Flanders was

contractually incompetent in March 2016. Nor could she. See Mass.

Gen. Laws ch. 201D, § 6 ("A determination made pursuant to this

section that a principal lacks capacity to make health care

decisions is solely for the purpose of empowering an agent to make

health care decisions pursuant to a health care proxy." (emphasis

added)); Cohen v. Bolduc,

, 722 n.25 (Mass. 2002)

("A person may be adjudicated legally incompetent to make some

decisions but competent to make others."); Johnson v. Kindred

Healthcare, Inc.,

, 854 n.10 (Mass. 2014) ("The

capacity 'to make treatment decisions' is distinct from the

capacity 'to make informed decisions as to [one's] property or

financial interests.'" (alteration in original) (quoting Cohen,

760 N.E.2d at 722 n.25)). Similarly, a tentative diagnosis of a

moderate level of neurocognitive disorder does not itself equate

with contractual incapacity. Cf. Paine v. Sullivan,

(Mass. App. 2011) (noting that "a diagnosis of Alzheimer's

disease in and of itself does not compel a conclusion that a

testator lacks capacity to execute a will").

- 22 - So, the records get Borden part way, by showing some

form of incapacity and the existence of a mental condition, but a

gap remains between what she shows and what she would like to show

(contractual incapacity). And to close that gap, Borden needs

under Massachusetts law what she clearly does not have -- medical

evidence linking Flanders's neurocognitive disorder to a lack of

contractual capacity at the time he executed the TOD Agreement.

Sparrow,

. There is no medical evidence at

all, such as expert testimony, connecting Flanders's disorder to

an inability to "understand[] and decid[e] upon the terms of the

contract" or "act in a reasonable manner in relation to the

transaction" at the time he signed the TOD Agreement (or at any

other time).

(first quoting Wright,

;

then quoting Krasner,

); see also id. at 304.

Nor for that matter does Borden offer circumstantial evidence of

symptoms sufficient to suggest that Flanders's neurocognitive

disorder in any way manifested in a loss of those abilities around

the time Flanders signed the TOD Agreement. Id. at 305. Without

such evidence, a jury could only speculate in attempting to

determine the disorder's effect, if any, on Flanders's contractual

capacity.

Finally, Borden mounts various attacks on the consenting

beneficiaries' evidence regarding Flanders's capacity, none of

which we find availing. First, Borden argues that Brescher's

- 23 - statements regarding Flanders's capacity at the time he signed the

TOD Agreement are speculative. But those statements were based on

Brescher's personal observations of Flanders reading and signing

the TOD Agreement and her conversations with Flanders during that

meeting. Thus, there is nothing speculative about her conclusion

that Flanders "understood what he was doing on March 22, 2016 when

he signed the TOD Certificate, what the document was designed and

intended to accomplish, and to whom he was planning to leave

specified portions of his stock."

Second, Borden argues that Brescher's opinion as to

Borden's competency must be disregarded because Brescher is not a

medical expert. Borden misunderstands the relevant standards.

Although medical evidence, as opposed to lay testimony, "is

necessary to establish that a person lacked the capacity to

contract due to the existence of a mental condition," Sparrow,

(emphasis added), a "non-expert is competent to

testify to the physical appearance and condition and acts of a

person both for their probative value for the jury and for the

purpose of furnishing facts as the basis of hypothetical questions

for experts,"

at 305 (quoting Cox v. United States,

(7th Cir. 1939)). A reasonable jury would be entitled to

believe Brescher's unrebutted testimony regarding Flanders's

condition and acts at the time he signed the TOD Agreement.

- 24 - Third, Borden argues that the consenting beneficiaries'

evidence only demonstrates that Flanders had "the lesser level of

testamentary capacity, not the higher standard required for

contractual capacity." See Maimonides Sch. v. Coles,

(Mass. App. 2008) (describing test for contractual

capacity as "more demanding" than test for testamentary capacity);

compare Palmer v. Palmer,

(Mass. App.

1986) ("Testamentary capacity requires ability on the part of the

testator 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"; and

"ability at the time of execution of the alleged will to comprehend

the nature of the act of making a will." (quoting Goddard v.

Dupree,

(Mass. 1948))), with Sparrow,

(contractual capacity requires the ability to

"understand[] and decid[e] upon the terms of the contract" and

"act in a reasonable manner in relation to the transaction" (first

quoting Wright,

; then quoting Krasner,

)). According to Borden, to demonstrate Flanders's capacity,

the consenting beneficiaries would have to show he understood that

the TOD Agreement would have tax implications for the estate.

- 25 - This argument stumbles at the starting blocks: As we

have repeatedly noted, the burden is on Borden to show Flanders

lacked capacity, not on the consenting beneficiaries to show he

had capacity. Sparrow,

. Moreover, even assuming

Flanders was unaware of the tax implications of the TOD Agreement

(an assertion for which Borden provides no evidence), lack of

awareness is not lack of capacity; rather, it is a lack of

knowledge that could have many causes, including (as Borden

speculates) less-than-exhaustive advice on the part of Flanders's

attorneys or accountants.

Finally, Borden alleges that Sherry "saw a delusional

state that no other witness knew of or revealed," calling into

question the credibility of the other witnesses. This argument is

based on a false premise: Flanders's brother acknowledged in his

affidavit that Flanders was "hospitalized" for "a couple of weeks

in November of 2015," though he stated that "in all the times" he

spoke with Flanders, he "never doubted [Flanders] was in full

control of his mental faculties." More fundamentally, Borden

offers no evidence that the other witnesses were unaware of

Flanders's hospitalization. Borden guesses what a jury might

conclude if Brescher were asked about her knowledge of Flanders's

hospitalization and diagnosis, but Borden -- who bears the burden

of proof -- never deposed Brescher (or any other witness), nor has

she otherwise presented evidence as to Brescher's knowledge. As

- 26 - a result, we (and the jury) can only speculate on this record as

to both Brescher's knowledge and the import of her knowledge as to

her credibility. Such "unsupported speculation" cannot substitute

for producing "specific facts, in suitable evidentiary form,

to . . . establish the presence of a trialworthy issue." Triangle

Trading Co. v. Robroy Indus., Inc.,

(1st Cir. 1999)

(alteration in original) (first quoting Smith v. F.W. Morse & Co.,

(1st Cir. 1996); then quoting Morris v. Gov't

Dev. Bank of P.R.,

(1st Cir. 1994)); see Nunes v.

Mass. Dep't of Corr.,

(1st Cir. 2014) ("Generally

speaking, a party cannot raise a genuine dispute merely 'by relying

on the hope that the jury will not trust the credibility of the

witness,' but must instead present 'some affirmative evidence' on

the point, except perhaps where the testimony is 'inherently

unbelievable.'" (quoting McGrath v. Tavares,

, 28 n.13

(1st Cir. 2014))); cf. Blanchard v. Peerless Ins. Co.,

, 490 & n.10 (1st Cir. 1992) (vacating grant of summary judgment

where nonmovant pointed to "undisputed evidence from which a jury

might reasonably infer that [the witness's] statements as to his

subjective intent were motivated by self-interest").

II.

For the foregoing reasons, we affirm the judgment of the

district court.

- 27 -