In re Provenzano

1

2022 NY Slip Op 32492(U)

ESTATE OF IRENE PROVENZANO, Deceased

No. 2019-771

Surrogate's Court, Bronx County

July 13, 2022

Unpublished Opinion

Nelida Malave-Gonzalez, Judge.

In this contested estate, Salvatore Provenzano ("Salvatore"), the decedent's son, who filed a petition seeking to probate a handwritten one-page instrument dated August 24, 2018 ("the propounded instrument:) moves for summary judgment pursuant to CPLR 3212 dismissing the objections with a jury demand filed by another son Anthony Provenzano ("Anthony"). After Anthony filed opposition to the motion, Salvatore filed a reply and the matter was marked "submitted for determination."

The decedent died from cancer on October 26, 2018 at the age of seventy-one (71). In addition to the two sons, her only other distributee is a daughter from a previous marriage that ended in divorce. The decedent was predeceased by her second spouse, the sons' father. The propounded instrument was signed by the decedent while she was receiving impatient chemotherapy at Hackensack University Medical Center (Hackensack Hospital) in New Jersey. The decedent's signature on the instrument is not dated and is next to that of a New Jersey notary indicating that "the instrument was notarized on August 24, 2018." Two Hackensack Hospital nurses, whose addresses do not appear on the instrument, signed their names below a typewritten sentence stating that "the witnesses below have found Irene Provenzano to be of sound mind and free will at the time this instrument was signed." The instrument does not name an executor. After one dollar bequests to Anthony and the daughter, "Sal Provenzano (my son) will inherit the house and all contents, assets with it, including safety deposit and checking account, stocks and bonds [and] all vehicles." Both witnesses subsequently executed SCPA 1406 affidavits.

According to the probate petition, the estate assets consist of $132,000 in personal property and realty valued at $750,000. Temporary letters of administration subject to SCPA restrictions concerning the realty issued to Salvatore upon his filing a bond in the penal sum of $132,000. Anthony and the daughter jointly served and filed objections to the propounded instrument, and thereafter the daughter withdrew the objections filed on her behalf. Anthony's remaining objections assert, inter alia, lack of due execution, lack of testamentary capacity and that the instrument was produced by fraud and undue influence. Pursuant to an order dated May 23 2022 the SCPA 805 (3) restrictions were lifted, and an additional bond in the sum of $999,999 was directed and filed.

The decedent executed a power of attorney in favor of Anthony at Hackensack Hospital on August 2, 2018 and was readmitted on August 17, 2018 for chemotherapy for end stage lymphoma. Her prior will dated March 24, 2006 ("the 2006 instrument") was attorney supervised with a self-proving affidavit. The second spouse was the nominated executor and sole testamentary beneficiary, a friend is nominated as successor executor, Salvatore is an alternate successor executor and the two sons are equal contingent beneficiaries.

IN SUPPORT OF SUMMARY JUDGMENT

Salvatore asserts that the propounded instrument was properly executed, it satisfies all of the requirements of EPTL 3-1.2 and all of Anthony's objections are baseless. In addition to the two attesting witnesses and a notary, the decedent's two best friends were present at the time that the decedent executed the propounded instrument on August 24, 2018. Salvatore also avers that the propounded instrument reflects the decedent's well-considered testamentary plan to disinherit the daughter and Anthony because her relationship with them had deteriorated over the course of many years. In further support, he annexes complete transcripts of the SCPA 1404 examinations of his testimony, along with that of the two witnesses, the two friends and Desmond Lyons, Esq., an attorney who drafted an unsigned codicil to the 2006 instrument shortly before the decedent's death.

THE SCPA 1404 EXAMINATION TESTIMONY

One witness, Ann Klobus, R.N. ("Nurse Klobus") testified that she cared for the decedent at Hackensack Hospital on August 24, 2018. At that time, in the course of performing her professional duties, she observed that the decedent was quiet, very alert but weakened, and appeared calm. She also testified that Kaitlyn Molinaro Ross, R. N. ("Nurse Molinaro"), the decedent's primary nurse for the next shift, requested that she stay on to witness the decedent sign a will. Nurse Klobus recalled witnessing a will only one other time and remarked that it appeared "strange" that there was a one dollar bequest, but not that the will was handwritten, and a gentlemen whom she identified as "an attorney" was also present.

The second witness, Kaitlin Molinaro, R. N. ("Nurse Molinaro"), testified that she was not aware of the other gentlemen's credentials and this was the only time that she witnessed a will. Although she recalled that the decedent remained her hospital bed during the will signing and that she signed the paper as a witness, Nurse Molinaro could not remember who asked her to act as such.

Clementine Cillo ("Ms. Cillo") testified that her friendship with the decedent spanned over 52 years, they got together three or four times weekly, spoke daily and "shared everything including each other's joys and sorrows." She recounted that Anthony was a difficult teenager who gave his parents a hard time and would not listen to them and after an incident where it was alleged that Anthony stole cash and jewelry, a confrontation ensued with his parents, after which Anthony left their house and never lived with them again. She also testified that the decedent and the spouse stated to her on numerous occasions that they were hurt and embarrassed by an outburst from Anthony that occurred at his wedding, that Anthony and the daughter were disrespectful and only came around when they needed money, and they would accordingly "get nothing when we died." As her health was failing, the decedent reiterated to this witness that she needed to draft a new will so that Anthony and the daughter would only get one dollar.

Ms. Cillo continues that Rosa, the other friend present at the will signing, was formerly employed by an attorney in the Bronx. At the recommendation of that attorney, Rosa called a mobile notary to come to Hackensack Hospital, who Ms. Cillo paid in cash. At the decedent's request, Rosa asked two nurses on the hospital floor to act as witnesses, and both agreed to serve. Ms. Cillo testified that the decedent was also aware that the mobile notary would be present when she signed the will. She noted that Salvatore was not at the hospital during the will signing and, in fact, did not know that it was taking place. After the will was signed, the decedent reminded the witness daily that she was not to inform Anthony and the daughter that their mother was ill, and that she did not want them at her funeral. Ms. Cillo concludes that she was at the decedent's bedside when she died, and that the decedent had never met or even saw photos of any of her grandchildren.

The other friend, Rosa Calandriello ("Rosa"), testified that she was acquainted with the decedent for over 20 years and saw her three to four times weekly. A former EMT, she drove the decedent to chemotherapy, medical scans and doctors' appointments, became the decedent's primary care giver and was the decedent's health care proxy. Rosa never met Anthony and saw the daughter for the first time at the decedent's funeral. The witness continued that the decedent was distressed that she never met her grandchildren and continued to declare that "Anthony and Gina were only to get one dollar each." After being discharged from Hackensack Hospital, the decedent indicated that she needed to see an estate attorney, but she was readmitted and the attorney "was not able to come to New Jersey." Accordingly, the decedent asked the two friends to secure witnesses and a notary to help her memorialize her wishes in a handwritten will. Rosa concludes that the decedent drafted and signed the one-page will in front of the two friends, the two nurses and the notary, and Salvatore was not present.

Desmond Lyons ("Lyons"), an attorney with experience in trusts and estates matters, testified that the decedent was referred to him in early 2018 by the spouse of her former attorney who was deceased. Their first meeting was on March 1, 2018. At that time, the decedent came to his office by herself, appeared to be mobile and gave him a copy of the 2006 instrument. She stated that she wanted to revise the document because her husband had died, and she wanted to remove one of her sons and her daughter from the will because the son had stolen money and jewelry and was estranged from her for eight years. She spoke favorably of her other son, Salvatore, who was a police officer, and she wanted to make sure that he inherited all of her assets at her death. When the decedent was at Hackensack Hospital, Lyons informed her that he was unwilling to come to New Jersey and that they would resume their discussions when she returned to New York. He states that he had no prior relationship with Salvatore and only met him once.

Lyons further testified that after the decedent was discharged from Hackensack Hospital and transferred to a facility in New York, he drafted a four-page first codicil to the 2006 instrument and presented the decedent with a copy at the Dumont Rehabilitation Center in New Rochelle on October 10 2018. At that time, the decedent appeared "fit of mind, physically failing, but sharp in her mind" and reiterated her estrangement from Anthony and the daughter. ...