Matter of Carver

[*1] Matter of Carver 2007 NY Slip Op 52176(U) [17 Misc 3d 1128(A)] Decided on November 8, 2007 Sur Ct, Essex County Meyer, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on November 8, 2007
Sur Ct, Essex County

In the Matter of the Estate of Reginald Carver, Deceased.



2006-12021



Manning and Scaglione (David D. Scaglione, Esq., of counsel), Willsboro, New York for Petitioner Lori Cardarelli

Buttermore & Foltz (David B. Foltz, Esq., of counsel), Westfield, New Jersey for Jerry Carver Stuart Frum, Esq., Westport, New York for Roberta Benway

Stafford, Owens, Curtin & Trombley, PLLC (Heather Deare West, Esq., of counsel) for Lori Cardarelli and Mary Anne Cardarelli

Reginald H. Bedell, Esq., Law Guardian for Chelsea Benway

Richard B. Meyer, J.

Objections by Jerry Carver (Carver), a brother of the decedent, to the petition of Lori Cardarelli (Cardarelli), the decedent's niece, for admission to probate of the last will and testament of Reginald Carver (decedent). A non-jury trial of the issues was held during which numerous witnesses testified and exhibits were received in evidence. This Court has considered the evidence, and evaluated the credibility of the witnesses based upon their demeanor, the manner in which they testified, and the consistency, accuracy, and probability or improbability of their testimony in light of all other evidence. The credible, relevant and material evidence establishes the facts set forth below.

The decedent, a lifelong resident of the Town of Willsboro, Essex County, New York, and the owner and operator of the family dairy farm inherited from his parents, died on November 23, 2006, just three days after executing the propounded will. At the time of execution, decedent was hospitalized in Boston where he was undergoing treatment for terminal cancer. For approximately twenty-two months prior to his death, the decedent had been under the care of a staff physician at the Beth Israel Deaconess Hospital and had periodically traveled to that facility for treatment. He was admitted to the hospital for the last time on November 13, [*2]2006, and remained there until his death on November 23, 2006. On November 15, 2006, decedent began receiving daily doses of morphine 2 milligrams administered intravenously to control his pain.

His treating physician, Dr. James Heffernan (Heffernan), met with the decedent in his hospital room about his prognosis on November 16, 2006 and advised him that he may only have weeks to live. Also present were his sister and brother-in-law, Mary Anne Cardarelli and Justin Cardarelli (Justin). The decedent was not willing to discuss end-of-life issues such as hospice or where to receive end-stage care. Later that evening, at 9:50 p.m., and again at 12:30 a.m. on November 17th, the Decedent was given doses of morphine.

During the morning of November 17, 2006, the decedent told Justin to contact Attorney John Manning (Manning) of Willsboro, New York, to draft a will. Over the course of the next two to three hours, the decedent told Justin what he had "in mind". Late in the morning, or in the early afternoon, Justin called Manning's office and told him that the decedent wanted to draft a will. Manning advised that he was busy and suggested that the decedent call him the next morning, Saturday November 18, 2006. Justin gave the phone to the decedent who spoke to Manning for approximately five minutes.

On Saturday, November 18, 2006 at approximately 10:00 a.m., the decedent told Justin to call Manning. Justin, who was the only person present with the decedent in his hospital room at that time, told Manning that he was sitting with the decedent and that he would outline what the decedent had told him the day before. As Justin spoke, Manning could hear the decedent in the background saying "yes" and "uh huh". The decedent also periodically interjected, telling them not to forget certain specific dispositions he wanted in his will. When Justin was done, the decedent then got on the phone with Manning, and after saying "Yes, yes, that's the way I want it," the decedent hung up the phone. The hospital records indicate that at 11:55 a.m. that day, the decedent was evaluated by staff and was determined to be alert and oriented to person, place and time.

In the afternoon of November 18, 2006 the decedent was visited by Roberta Benway (Benway) and Rebecca Gay (Gay), employees of the decedent at his dairy farm, and by Lori Cross (Cross), who was Gay's sister. The decedent was resting in bed when they arrived, and the three Cardarellis were there. During the visit, which lasted approximately six hours, the decedent spoke in full sentences and had no difficulty understanding what was going on or engaging in coherent conversation. He did complain that his side hurt if he moved a certain way, but made no other complaints of pain. At approximately 5:20 p.m., the decedent signed do not resuscitate or intubate forms, and the hospital records note that he was fully aware of the implications of those decisions. Well after all visitors had left his hospital room, and at approximately 11:00 p.m., he was given another dose of morphine.

At 6:00 a.m. on Sunday, November 19, 2006, the decedent received another dose of morphine. The hospital records note that the decedent was then alert and oriented. Benway, Cross and Gay arrived in his room at 9:00 a.m. and stayed until approximately 1:00 p.m. When they arrived, he was sitting in a chair wearing his hat and alternatingly looking out the window and watching television. His visitors described the decedent as looking a lot better and acting livelier. The decedent even joked with them and was able to get up and walk. He was again evaluated by hospital staff at 5:20 p.m., and was found to be alert and oriented. At 8:15 p.m., the decedent received a dose of morphine. [*3]

Monday morning, November 20th, at 12:30 a.m., a dose of morphine was administered to the decedent. At approximately 8:30 a.m., Manning drafted the will and then called Cardarelli to arrange for it to be faxed to Boston. From 9:40-10:00 a.m., the decedent received physical therapy in his hospital room. Upon arrival, the therapist found the decedent sitting in a chair, and he advised that he had been vomiting that morning. The therapist noted the decedent's gait to be steady with a walker and determined that he was showing improved mobility and endurance, albeit with supplemental oxygen. The therapist concluded that she anticipated the decedent would be safely discharged home with his sister in one to two sessions with a walker and home physical therapy. Morphine was again given to the decedent at 11:15 a.m.

The will prepared by Manning was faxed to the Boston office of Ropes & Gray, and its execution was supervised by a trio of attorneys from that office Jeanine Kerridge (Kerridge), Marc Bloostein (Bloostein) and Kevin Willis (Willis) with Willis acting as a notary public. The attorneys, who had never met the decedent, visited him in his hospital room. Upon arriving at approximately 1:00 p.m., they were introduced to the decedent by the petitioner, Lori Cardarelli (Cardarelli), the decedent's niece. The decedent was observed sitting up in bed, and the attorneys all described him as looking ill and in physical discomfort. After some small talk during which the decedent was alert, spoke in full sentences, and appeared to understand what was happening, Cardarelli left the room, leaving the decedent alone with the attorneys. Willis advised the decedent that they were there to witness the execution of his will. The will was placed in front of the decedent and Willis read its contents word for word. As the will was read, the decedent was observed to be looking at it and he occasionally nodded as the provisions were read. Upon finishing, Willis asked the decedent if those were his wishes, to which the decedent responded affirmatively. The decedent also answered affirmatively when asked if the document was his will and if he wanted Kerridge and Bloostein to witness his execution of it.

The decedent was observed by the attorneys as he initialed the bottom of the first page of the will and signed the second page, which the decedent did with some difficulty. Kerridge and Bloostein then signed the will as witnesses and they were then placed under oath by Willis. He asked them if they signed the will at the request of the decedent, in his presence and in the presence of each other, and if the decedent was over eighteen, of sound mind, and under no constraint or undue influence. Both Kerridge and Bloostein replied "yes" and proceeded to sign the self-proving affidavit.

A short time later, after the attorneys had left and while Mary Anne and Lori Cardarelli were there, Heffernan visited the decedent and again discussed end-of-life issues with him. The decedent decided against pursuing aggressive treatment for his worsening condition. Despite the decedent's physically weakened condition, Heffernan was struck by how mentally bright, alert and together the decedent was, even to the point of joking. At 3:55 p.m., the decedent received another dose of morphine. Prior to 5:00 p.m., he was visited by the Cardarellis' next-door neighbor, Anagha Agte (Agte), who was on her way to Montreal. Agte described the decedent as being a little weak, but happy to see her. He engaged in conversation with her, speaking in full sentences, and spoke to her about his mother having once visited the basilica in Montreal. Agte did not find the decedent to be confused or disoriented, and left before 5:00 p.m.. At 5:00 p.m., the decedent suffered a sudden onset of abdominal pain on his left side, and he was administered additional doses of morphine as well as a Fentanyl patch. His [*4]condition continued to deteriorate and he passed away three days later on November 23, 2006.

Decedent was survived by three brothers and two sisters, along with several nieces and nephews. His will names Cardarelli as his Executrix. The bulk of his estate consists of two separate farms, including equipment and livestock, as well as a camper, a Corvette automobile, and a Ford pickup truck. Under the proposed will, the larger farm, which decedent operated until his death, was left to Cardarelli, and the smaller farm was left to another niece and nephew. The Corvette was bequeathed to two other nephews, the pickup truck and the livestock were bequeathed to Benway, his long-time employee and friend, and the camper was left to Benway's teenage daughter. The residue of the estate was left to the surviving brothers and sisters.

The proponent of a will has the burden of proving its due execution and that the testator possessed the sufficient testamentary capacity in order for the will to be admitted to probate (SCPA §1408; In re Estate of Friedman, 26 AD3d 723, 724, 809 NYS2d 667, 668; Matter of Williams, 13 AD3d 954, 955, 787 NYS2d 444, leave denied 5 NY3d 705, 801 NYS2d 2, 834 NE2d 781).

A will is presumed to have been properly executed where the will is accompanied by a self-executing affidavit of the attesting witnesses (see In re Estate of Pilon, 9 AD3d 771, 772, 780 NYS2d 810, 811-812; Matter of Leach, 3 AD3d 763, 764-765, 772 NYS2d 100; Matter of Clapper, 279 AD2d 730, 731, 718 NYS2d 468). This presumption can be rebutted only upon positive proof that the formal requirements of execution were not met (see Matter of Turell, 166 NY 330, 337-338, 59 NE 910; Matter of Ruso, 212 AD2d 846, 847, 622 NYS2d 137). Here, the decedent's will contains the self-proving affidavit (SCPA §1406) of Kerridge and Bloostein which, coupled with their own and Willis' uncontradicted testimony at trial, establish that the will execution ceremony complied with the formal requirements of EPTL 3-2.1(a)(3). Also, there is no dispute as to the genuineness of the will, the decedent's signature, or the signatures of the witnesses.

The affidavit of Kerridge and Bloostein opining that at the time of execution the decedent appeared to be of sound mind and memory to make a will also creates a presumption that he possessed sufficient testamentary capacity (see Matter of Leach, 3 AD3d 763, 764-765, 772 NYS2d 100).Less mental capacity is required to execute a will than any other legal instrument (see In re Bossom's Will, 195 AD 339, 343, 186 NYS 782, 786; see also In re Safer's Will, 19 AD2d 725, 242 NYS2d 445; In re Moyer's Will, 97 Misc 512, 163 NYS 296). " Mere proof that the decedent suffered from old age, physical infirmity and chronic, progressive senile dementia when the will was executed is not necessarily inconsistent with testamentary capacity and does not alone preclude a finding thereof, as the appropriate inquiry is whether the decedent was lucid and rational at the time the will was made' (Matter of Buchanan, 245 AD2d 642, 644, 665 NYS2d 980 [1997], lv. dismissed 91 NY2d 957, 671 NYS2d 717, 694 NE2d 886 [1998] [citations omitted]; see Matter of Beneway's Will, 272 AppDiv 463, 467-468, 71 NYS2d 361 [1947])" (Matter of Williams, 13 AD3d 954, 957, 787 NYS2d 444, 447).

To determine testamentary capacity, and the court must consider whether the testator (1) understood the nature and consequences of executing a will, (2) knew the nature and extent of [*5]the property he was disposing of, and (3) knew those who would be considered the natural objects of his bounty and his relations with them (Matter of Kumstar, 66 NY2d 691, 692, 496 NYS2d 414, 415, 487 NE2d 271, 272; Matter of Will of Slade, 106 AD2d 914, 915, 483 NYS2d 513, 514). Testamentary capacity is not negated by terminal illness (see Matter of Estate of Burack, 201 AD2d 561, 607 NYS2d 711), by drug therapy administered under the direction of a physician (see Matter of Estate of Van Patten, 215 AD2d 947, 627 NYS2d 141; In re Glockner's Will, 17 NY St Rep 798, 2 NYS 97 [opium]), or by the fact that the decedent may have been on his death bed (see In re Seagrist's Will, 1 AD 615, 37 NYS 496, affirmed 153 NY 682, 48 NE 1107).

Based upon the testimony of the petitioner's witnesses and the hospital records in evidence, Cardarelli sufficiently demonstrated by a preponderance of the credible evidence that the decedent was possessed of testamentary capacity when the will was executed (see Matter of Williams, supra ; Matter of Johnson, 6 AD3d 859, 860, 775 NYS2d 107; Matter of Long, 176 AD2d 1059, 575 NYS2d 205). "While decedent postponed making a will until he was gravely ill, [t]he will was not the result of a sudden impulse but of a definite purpose' (Matter of Eno, 196 AppDiv 131, 150, 187 NYS 756)" (Matter of Estate of Hinman, 242 AD2d 900, 901, 662 NYS2d 948, 949). The decedent's conversations with Justin on November 17th in which he detailed how and to whom his property was to be disposed of in the will he wanted drafted, his participation in Justin's conversation with Manning on the 18th and his own conversation with Manning that day, clearly establish that the decedent knew the nature and extent of the property he was disposing of and those who were the natural objects of his bounty and his relations with them. Those same facts, along with his discussions with Kerridge, Willis and Bloostein, constitute sufficient proof that he knew the consequences of executing a will. There is simply no evidence establishing that the decedent lacked mental capacity. All of the witnesses who observed and spoke with the decedent prior to and at the time of execution of the will, as well as those who visited with him in the hours immediately after execution, testified that he spoke in full sentences, meaningfully participated in conversation, and understood what was happening around him. Moreover, the hospital records in evidence establish that up to and including the time the will was executed, various members of the hospital staff had conducted an assessment of the decedent and found him to be alert and oriented to person, place and time. Taken together, the facts amply support a finding that the decedent was possessed of sufficient testamentary capacity to execute the will on November 20, 2006.

The burden of proving that the decedent's will was the result of undue influence or fraud rests with Carver (Matter of Arnold, 78 NY2d 753, 432 NYS2d 741). There was no evidence of fraud. Undue influence requires proof of coercive influence so substantial in nature that the testator was unable to act independently and acted contrary to his own wishes (Matter of Walther, 6 NY2d 49, 188 NYS2d 168, 159 NE2d 665; Matter of Beneway, 272 AD 463, 71 NYS2d 361; Matter of Branovacki, 278 AD2d 791, 723 NYS2d 575, appeal denied 96 NY2d 708, 725 NYS2d 639, 749 NE2d 208). It is incumbent upon the objectant to identify the claimed acts constituting the influence and the times and places when and where such acts occurred (see Matter of Kemble, 149 AD2d 899, 901, 540 NYS2d 585). Absent such specific evidence of influence, it is not sufficient to show that the influencer had an opportunity to exert influence and a motive to do so (Matter of Burke, 82 NY2d 260, 441 NYS2d 542) or that a person was hounded to make a will (Matter of Neuman, 14 AD3d 567, 789 NYS2d 182). [*6]

Here, Carver's objections rest solely upon the testimony of Dr. Albert Goldwasser, a physician specializing in psychiatry, psycho-analysis and forensic psychiatry, and an assertion that all of Cardarelli's witnesses, including Cardarelli herself, were not telling the truth. Goldwasser was never one of the decedent's treating physicians, never examined the decedent and was never involved in any way in the medical history of the case. Also, Goldwasser did not discuss the matter with any physician who examined or treated the testator, and he only reviewed the decedent's medical records and the deposition testimony of Heffernan. Thus, his opinion was based merely upon the documentary evidence of the decedent's physical condition and the prescribed drug therapy.

The testimony of a physician who only examined medical records and other documentary evidence, without seeing or examining the testator, and who did not discuss the testator's condition with any of the attending physicians and nurses, has been described as "the weakest and most unreliable kind of evidence" (Matter of Will of Slade, supra at 915, 483 NYS2d at 514; Matter of Vukich's Will, 53 AD2d 1029, 1030, 385 NYS2d 905, affirmed 43 NY2d 668, 400 NYS2d 817, 371 NE2d 535; In re Burnham's Will, 201 AD 621, 194 NYS 811, affirmed 234 NY 475, 138 NE 413; Matter of Tracy, 221 AD2d 643, 634 NYS2d 198; Matter of Estate of Swain, 125 AD2d 574, 509 NYS2d 643; In re Wolf's Will, 196 AD 722, 188 NYS 438). In other words, where medical opinion is contradicted by the facts, the facts must prevail (In re Horton's Will, 272 AD 646, 75 NYS2d 45, affirmed 297 NY 891, 79 NE2d 736). The reason for this rule was explained in Matter of Estate of Van Patten, supra at 949-950, 627 NYS2d at 143: "Not having examined the testator and not having been otherwise involved in the medical history of the case, respondent's expert arrived at his opinion through an inference or deduction which would be equally applicable in all cases involving a physical condition and drug therapy identical to those revealed by the testator's medical records. Inasmuch as there are inherent limitations in medical opinion evidence because of the absence of scientific certainty (see, Matott v. Ward, supra , 48 NY2d 455 at 462 ), the possibility remains that even if the opinion of the expert is accepted as the rule in such cases, there may still be one case or more which proves the exception rather than the rule. In other words, given a large number of cases involving the same physical condition and drug therapy as revealed by the testator's records, the expert's opinion of incompetence could prove correct in the vast majority of cases, perhaps even approaching 100%, but because of the uncertainty inherent in medical opinion there could be a statistically insignificant number of cases in which the patient was not in fact incompetent. When viewed in this context, it is apparent that contrary to respondent's claim, the opinion of respondent's expert that the testator must have been incompetent because of the physical condition and drug therapy revealed by the medical records does not necessarily conflict with the direct evidence of the testator's mental competence presented by petitioner."

Carver's remaining objections are speculative at best, and are insufficient to establish fraud or undue influence (see Matter of Neuman, supra ; Matter of Dietrich, 271 AD2d 894, 706 NYS 763; Matter of Spangenberg, 248 AD2d 543, 670 NYS2d 48; Matter of Minervini, 297 AD2d 423, 745 NYS2d 625; Matter of Bustanoby, 262 AD2d 407, 691 NYS2d 179). It was [*7]clearly established that the decedent and Cardarelli had a very close relationship, akin to father and daughter, and his nomination of her as his executrix and his bequest to her of the family farm not so shocking or unreasonable as to suggest that his will was the result of some nefarious act or scheme by Cardarelli, or others on her behalf, rather than the product of his own independent judgment.

The decedent's will executed on November 20, 2006 was duly executed, and at the time of executing it the decedent was in all respects competent to make a will and not under restraint. The objections are dismissed, the will is hereby admitted to probate, and the petition is in all respects granted.

Decision signed this 8th day of November, 2007 at Elizabethtown, New York.

ENTER ____________________________________

Richard B. Meyer

Judge of the Surrogate's Court