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Mary Kass’s nephew and niece contend that she bought the two houses on Commercial Street in Provincetown for her psychotherapist and former personal trainer. (Globe Staff Photos/ Wendy Maeda)

Future of Cape artist becomes $60m question

Judge weighs guardianship as 2 sides vie

PROVINCETOWN -- She lived in a modest, brown house on a narrow Provincetown street. Few knew of her vast wealth, the valuable works of art she owns. And that is how the intensely private artist apparently wanted it.

Mary Kass studied with renowned artists, exhibited her paintings in Provincetown, and displayed her work in Denmark, France, and Switzerland.

Now 74, Kass uses a wheelchair. Her enormous fortune, estimated at $60 million, is at the center of a legal dispute between her relatives and the personal trainer and psychotherapist whom Kass named as the primary beneficiaries of her estate.

In the next weeks, a judge is expected to decide whether Kass needs a legal guardian. If the judge decides Kass cannot take care of herself, two people on opposite sides of the dispute over the estate want responsibility for her welfare: her nephew, Thomas Kass Berger, and her former personal trainer, Elizabeth ''Betty" Villari.

The judge's decision, following a 10-day trial that ended Friday, will not determine who inherits Kass's fortune. But her legal guardian, if the judge appoints one, would be responsible for her financial affairs, property, and physical welfare.

Kass Berger and Catherine Berger Mason, Kass's niece, contend that Villari and Kass's longtime psychotherapist, Mary Ellen Henry, took advantage of their positions to persuade Kass to name them her beneficiaries, according to Brian Bixby, the lawyer representing Kass Berger and Berger Mason.

Kass Berger also alleges that Henry and Villari used his aunt's money to purchase in her name two expensive waterfront properties on Provincetown's Commercial Street, according to Bixby.

Bixby filed documents in court alleging that Villari now lives in one of the properties, 571 Commercial St., where Kass also lives. Kass Berger and Berger Mason also allege that their aunt is suffering from dementia and is incapable of making important financial and health decisions, according to court documents.

Kass disputes her nephew's allegations about her mental health and the roles of Villari and Henry in her life. According to the closing statement of her lawyer, Steven G. Howard, Henry and Villari took care of Kass during her bouts with depression and encouraged her to have a social life. In his closing statement, Howard said that Kass can take care of herself. Kass also gave Villari power of attorney and Henry authority over her healthcare proxy, according to court documents.

Bixby said that Kass Berger and Berger Mason did not want to comment. Kass could not be reached, but one of her lawyers, Bonnie Kane, declined to comment. Villari is in Florida, according to a woman who answered the door at 571 Commercial St., where Villari lives. Villari's lawyers did not return calls seeking comment.

Henry, a diminutive woman in her 50s, also declined comment.

Kass, who is divorced and has no children, inherited the fortune, according to Bixby.

Kass hired Henry as her psychotherapist in September 1998. Kass was suffering from depression, caused in part by her failing health and her discomfort over her great wealth, according to Henry's statements in court. Kass was having trouble painting and needed someone to talk to, Henry said, according to trial transcripts.

Kass met Villari in September 2001, and sometime thereafter hired her as a personal trainer. Less than two years later, Kass began making changes to her will.

Also, in January 2003 Villari asked her friend David Nicolau, a recently elected Provincetown selectman and real estate agent, to broker, on Kass's behalf, the purchase of a $2 million house on 91 Commercial St., according to court documents.

Nicolau then brokered the purchase of two other houses on Commercial Street, for $2.05 million and $2.7 million, using Kass's money, Bixby alleges. Nicolau later sold Kass's modest house on Priscilla Alden Road for $430,000, according to town and court records. Nicolau could not be reached for comment. Kass now lives at 571 Commercial St., according to court documents.

Bixby said the houses were bought so that Villari and Henry could live in them.

But Kass disliked the house at 91 Commercial St., according to documents Bixby filed in court, and Nicolau sold it, at a loss of $275,000. But the artist kept the two other houses, on 571 and 599 Commercial streets.

Arguing that Nicolau could not have been acting on Kass's behalf, Bixby said that owning the two waterfront properties, each worth more than $2 million, would have been out of character for a woman who pursued a Spartan lifestyle.

''This was a lady who lived the life of what appeared to everyone as the poor artist," he said. ''She didn't want anyone to know she was rich."

Last year, Berger Mason and Kass Berger visited their aunt twice in Provincetown. They left with the impression that she was mentally incapacitated and that her two caregivers were exploiting her financially, according to petitions Bixby filed in court.

They filed for guardianship in November and since then have been involved in a ''knock-down, drag out fight" over their aunt's welfare, Bixby said.

''They just felt that somebody had to do something to protect Mary," he said.

Speaking in court, Howard questioned the concern of Kass's relatives, saying they had spent little time with their aunt in the 15 years she lived in Provincetown, according to court transcripts.

''So their expressions of concern are motivated by one thing," he said in his opening statement. ''They want to make sure that Mary's money is there for them when she dies."

Villari's lawyer, Larry L. Varn, said in his closing statements that his client may have saved Kass's life by seeing that she received proper medical care.

''Since then, she has aggressively defended Mary's dignity, Mary's freedom, and Mary's independence," Varn said.

Varn and Howard told Judge Lisa A. Roberts that Kass does not need a guardian.

Kass is ''the master of her own fate," Varn said. ''She's still the captain of her own boat."

If the judge decides Kass cannot take care of herself, Villari should become the guardian in accord with the artist's wishes, which were expressed in a 2002 power of attorney, Howard said.

Doug Johnstone, town clerk of Provincetown, said that Villari worked for the local soup kitchen and was active in advocating for the rights of the disabled.

''When I think of her I think of her as someone who volunteers and helps," said Doug Johnstone, the town clerk.

Kass is well-known at the Provincetown Art Association and Museum, on Commercial Street.

Included in its permanent collection is a small oil painting called ''Abstraction Black and Red." Kass donated the painting in 2000, said Christine McCarthy, the museum's executive director.

''She's talented," McCarthy said. ''She's contributed to this art community. We're lucky to have her."

Maria Cramer can be reached at mcramer@globe.com.

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