Matter of Rinaudo
Annotate this CaseDecided on April 16, 2012
Sur Ct, Richmond County
In the Matter of Probate Proceeding, Will of Cosmo Rinaudo, Deceased.
2011-28
Attorneys for Proponent: Jacobi, Sieghardt, Bousanti, Piazza & Fitzpatrick, P.C.
By Mark S. Piazza, Esq. - (718) 442-4600
Attorneys for Objectants: Menicucci, Villa & Associates, PLLC
By Richard A. Luthmann, Esq. - (718) 667-9090
Robert J. Gigante, J.
COSMO RINAUDO, the "Decedent", died on November 3, 2010 a domiciliary of Richmond County. In this contested probate proceeding of a will dated October 17, 2000, decedent's surviving spouse, Rosemarie Rinaudo, ("Proponent") moves for summary judgment dismissing the objections filed by the Decedent's non-marital daughter, Lina C. Rinaudo ("Objectant"). The objections allege lack of testamentary capacity, lack of due execution, fraud and undue influence.
Summary judgment should be granted only where it is clear that no triable issue of fact exists (Matter of Goldberg, 180 AD2d 528). It is necessary for the movant to make a prima facie showing that he or she is entitled to summary judgment as a matter of law (Zuckerman v. City of New York, 49 NY2d 557). The objectant opposing summary judgment must then present affirmative proof that their claims are real and capable of being established at trial (Stainless, Inc. v. Employers Fire Ins., 69 AD2d 27). If there is any doubt as to the existence of a triable issue, the motion for summary judgment must be denied (Hantz v. Fishman, 155 AD2d 415).
Factual History
The Decedent was married to the Proponent for fifty-one years up until the time of his death. They were also co-owners of a real estate corporation that managed several domestic rental properties. The couple had two children during the marriage, however, the decedent was also involved in a forty year extra marital affair, which resulted in the birth of the Objectant.
In approximately early 2000, the Decedent was involved in a car accident at the home of his paramour that resulted in police presence at his marital home. After this embarrassing incident, the Proponent demanded that the Decedent leave the marital home. The Decedent moved into the homes of his sister Rosalia Rinaudo, hereafter referred to as "Rosalia," and nephew during the short separation. During their separation, the Decedent and the Proponent met in Rosalia s home to consider reconciliation. The couple discussed drafting wills as a condition of the Decedent returning to the marital home. [*2]Rosalia recommended an attorney who previously represented her in a real estate transaction. The Decedent and the Proponent executed reciprocal wills on October 17, 2000. The two witnesses were Barnet E. Giventer, the attorney draftsperson, hereafter referred to as the "Drafting Attorney," and Sandra M. Schmeider, the legal secretary, hereafter referred to as the "Witness."
Fraud
"To establish fraud, it must be shown that petitioner knowingly made a false statement which altered the testamentary disposition that would have been made in the absence of such a statement" (Matter of Paigo, 53 AD3d 836). This burden, as well as showing the decedent relied on any such false statements in executing the will, rests on the objectant (Matter of Coniglio, 242 AD2d 901). Without a showing that fraud was exercised on the decedent, evidence that opportunity and motive existed do not suffice to raise a triable issue of whether the will reflects the testator's intent (Matter of Zirinsky, 43 AD3d 946). The Objectant failed to present any evidence of a knowingly false statement made by the Proponent or any other person concerning the drafting of the will. Therefore the fraud objection is hereby dismissed.
Testamentary Capacity
The Proponent has the burden of establishing that the testator possessed testamentary capacity when the will was executed (Matter of Slade, 106 NY2d 914, 915), by demonstrating the decedent understood the nature and consequences of executing a will, the nature and extent of his properties, and the natural objects of his bounty (Matter of Kumstar, 66 NY2d 692). However, the statements of a subscribing witness serve to establish a prima facie case of testamentary capacity (Matter of Dietrich, 271 AD2d 894), and the presumption of testamentary capacity exists until the contrary is established (Matter or Beneway, 272 App. Div. 463, 467). There are also several instances of circumstantial indicia, which the courts consider significant as establishing testamentary capacity. The Witness stated in her deposition that the Decedent made sensible replies to inquiries (Matter of Case, 214 NY 199, 203), spoke intelligently with the attorney for several minutes before signing the will and manifested his intent to use this document as his last will and testament (Horn v. Pullman, 72 NY 269, 257).
The Objectant argues that the Decedent suffered from a neurological disease that resulted in seizures and therefore did not have testamentary capacity. However, the record also reflects that the Decedent had a successful business where he worked full time making repairs for his rental properties. Additionally, he often felt well enough to stop taking his medication. It is also important to note that nothing in the record reflects the Decedent had a seizure before, during, or soon after the will execution (In re Davis' Will, 217 N.Y.S.2d 749, 750). Accordingly, the Decedent was mentally capable of understating the nature and consequences of executing his will.
As stated above, the Decedent conducted his own property maintenance and was informed about his real estate holdings. Nothing in the record reflects the Decedent did not know the objects of his bounty. He was well aware he had two children with his wife and one outside of his marriage. Therefore, the lack of testamentary capacity objection is dismissed.
Due Execution
The proponent has the burden of proving due execution of the will (Matter of MaDonough, 201 AD2d 203). The Drafting Attorney was recommended by Rosalia and did [*3]not know the Decedent, Proponent, or the Decedent's children. Accordingly, the attorney had no apparent motivation in the matter to draft an underhanded or dubious document. The attorney draftsman executed the will in his office in Staten Island, New York, where the Decedent and the Proponent discussed with the Drafting Attorney the intended contents of their respective wills. As indicated by the witnessing legal secretary, the attorney then produced reciprocal wills for the decedent and the petitioner. The Drafting Attorney and his secretary served as the witnesses to the will execution. The Witness later signed an affidavit of attesting witness.
Since the execution was supervised by an attorney, there is a presumption of proper execution of the instrument (Matter of Kinderberg, 207 NY 220). In addition, the affidavit of due execution permits the court to infer proper execution (Matter of Nelson, 141 NY 152). The record here establishes a prima facie case of due execution. The burden then shifts to the objectant to establish the existence of any triable issue of fact (Zuckerman v. City of New York, 49 NY2d 557).
Conflicting information is presented as to whether or not the Decedent had a nominal ability to read and write the English language. However, it is undisputed the Decedent both understood and spoke English. According to the Decedent's two children, English was the only language used in the marital home. The record also reflects that conversations between the Objectant and her father where conducted in English. Therefore, when English was spoken in the Drafting Attorney's office as stated by the Witness, the Decedent clearly understood the conversation in which he participated. The Decedent was a contractor for over fifty years, and according to the Decedent's son, Anthony Rinaudo's, deposition, "He (Decedent) would read directions, blueprints, plans. You have to be able to read, otherwise you are not building buildings to that level." It was also affirmed in the Witness's deposition that the Decedent read the will in the Drafting Attorney's office prior to his signing.
However, when viewing the evidence in the light most favorable to the Objectant, the Proponent must show more than the mere fact the modestly educated Decedent affixed his mark to the will (Matter of Regan, 206 AD 406). The record is in dispute whether the will was read aloud to the decedent prior to his signing. The contents of the instrument may be conveyed to the Decedent without any formal reading provided it appear on the whole that the instrument was drawn up and executed based on the testamentary intention of the decedent (Matter of Regan, 206 AD 406). According to the record, the Drafting Attorney spoke with the Decedent and the Proponent about the contents of the will prior to drafting the instrument. The Witness additionally stated that the Drafting Attorney asked the Decedent if he wanted the instrument to be his will, as well as asking if he, the Decedent, read the will and was ready to sign the document. The Witness further stated, "He made sure the client understood what was going on, that we were going to witness the will and that he was here for his will signing." The Objectant has furnished no evidence indicating that a question of triable fact exists regarding the Decedent's understanding of the execution ceremony. (In re Liquori's Will, 142 NYS2d 220).
The Objectant argues that the Drafting Attorney did not properly provide the Decedent with a testamentary plan or any tax planning since he had a large estate that consisted of a business and numerous real estate properties. However, there is no universal requirement a person must construct a will, or that any estate planning should [*4]even be conducted, let alone reflect the size of the estate. A lack of estate panning does not diminish decedent's testamentary plan, no matter how simple it may be. There is no requirement that Warren Buffett's will must be longer and more intricate than Joe Schmo. The Drafting Attorney's two-page instrument sufficiently and effectively conveyed the Decedent's testamentary wishes, which were to provide his wife and marital children with his estate. Based upon a review of the record, the court is satisfied with the instrument's execution and attestation. Therefore, the due execution objection is hereby dismissed.
Undue Influence
Objectant has the burden of proving the will was the product of undue influence. The influence exerted must amount to a moral coercion which restrained the Decedent's independent action and destroyed his free agency, or which constrained him to do something against his wishes (Matter of Walther, 6 NY2d 49, 53).
The Decedent was involved in a forty-year affair, which resulted in the birth of the Objectant. The Decedent often spent time at the residence of his paramour and helped monetarily support her and the Objectant. As previously indicated, there was one particular incident that highlighted the Decedent's ongoing extra-marital affair. (Although the Proponent may have known about the affair prior to this incident, her knowledge of the affair is irrelevant to the discussion at hand). This incident resulted in an embarrassing situation for the Proponent. The public nature of the Decedent's philandering led to a furious fight between the married couple, and it was at that point that the Decedent's marital children first learned about the Decedent's extramarital affair. The fight climaxed with the Proponent throwing the Decedent out of the marital home.
The Decedent lived with both his sister and his nephew during his exile. The Decedent and the Proponent later met in Rosalia's home to discuss a possible reconciliation. Viewing the evidence in light most favorable to the Objectant, the Proponent offered to let the Decedent return to the marital home only if he agreed to execute a reciprocal will where upon his death the Proponent was the beneficiary, and in the event she predeceased him, their children Anthony and Lisa were the beneficiaries. Simply put, the Proponent presented the Decedent with an ultimatum; he had to choose between his wife and family, or his second life. Not surprisingly, facing this choice, the Decedent chose his wife and the marital home. Proponent gave him a choice, which one could surmise influenced him, but not unduly influenced him.
Indeed, during the Decedent's separation and absence from the marital home, the Decedent did not go hungry nor resort to living on the streets. The Decedent was able to weigh the presented proposal and make his own conclusion. "Lawful influences which arise from the claims of kindred and family or other intimate personal relations are proper subjects for consideration in the disposition of estates, and if allowed to influence a testator in his last will, can not be regarded as illegitimate or as furnishing cause for legal condemnation" (Children's Aid Society v. Loveridge, 70 NY 387, 394-95). The Proponent did not prey upon the decedent in a weakened state, and her offer in no way affected the Decedent's free agency resulting in a decision made against the Decedent's free will. Evidence of opportunity and motive are insufficient to raise a triable issue of whether a will was coerced (Matter of Zirinsky, 43 AD3d 946). Simply because proponent discussed creating a will with the Decedent does not indicate moral coercion or constraint of the Decedent's free will (Matter of Walther, 6 NY2d 49, 53). The Decedent made a conscious [*5]and thought out decision to prepare his Last Will and Testament in accordance with the terms he discussed with the Proponent. Accordingly, the undue influence objection is also dismissed.
The objections filed are dismissed and the Court is satisfied upon all the proof that the propounded instrument is genuine, was validly executed and, that at the time of execution, decedent was competent in all respects to make a Will, and free from restraint (EPTL 3-2.1; SCPA 1408).
The propounded instrument dated, October 17, 2000, shall be admitted to probate. Letters Testamentary shall issue to Rosalie Rinaudo.
Settle Decree.
Dated: April 16, 2012
Robert J. Gigante, Surrogate
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
