Matter of Massimo

[*1] Matter of Massimo 2015 NY Slip Op 51927(U) Decided on December 23, 2015 Surrogate's Court, Queens County Kelly, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 23, 2015
Surrogate's Court, Queens County

Probate Proceeding, Will of Anthony Massimo, a/k/a ANTHONY V. MASSIMO, Deceased.



2013-370/B



Michael F. Mongelli, Esq.

Attorney for Petitioner

Scott G. Kaufman, Esq.

Attorney for Objectant

William R. Greenspan, Esq.

Guardian ad Litem
Peter J. Kelly, J.

In this proceeding the Petitioner, Lionel Markee, the nominated executor and friend of the Decedent, seeks to admit to probate two testamentary instruments that are alleged to be the Decedent's last will and testament, dated May 19, 2011 and a codicil thereto dated February 9, 2012. Objections thereto were filed by his sister Orsola Bartolini, the Decedent's sole distributee. Objections were also filed pro se by John Bartolini, Orsola Bartolini's son. In another testamentary instrument purportedly executed by the Decedent on June 25, 1998, John Bartolini had been nominated as executor.

In a proceeding for the issuance of preliminary letters, objections filed by John Bartolini were dismissed by decision and order of the court dated July 16, 2014. The court determined that since John Bartolini's only financial interest in that proceeding would have been in the commissions to which he would have been entitled under the earlier will, he lacked standing to object to the issuance of preliminary letters (SCPA §1410). As John Bartolini's interest in this proceeding is no different, his objections herein are also dismissed.

In the disputed testamentary instruments that are the subject of this proceeding, the Decedent nominates a friend, Lionel Markee, as the executor and nominates a housekeeper, Lela Ali, as successor executor. In these instruments, the Petitioner left his entire estate to John Franco Bartolini and Anthony Massimo, his grandnephews who [*2]are infants. The Decedent expressly made no provision for Orsola Bartolini (the infants' grandmother) and John Bartolini (the infants' father). In the 1998 testamentary instrument, the Petitioner's sole legatee was Orsola Bartolini.

This matter was initially tried and concluded on April 15 and 16, 2015. The Petitioner called as witnesses Ann Marie Barbagallo (the attorney draftsperson), James Bishoff and Linda Prezioso (the attesting witnesses to the codicil), Orsola Bartolini, Lela Ali and Lionel Markee. In addition, the Petitioner introduced into evidence multiple documents, including but not limited to, copies of the testamentary instruments alleged to be the Decedent's last will and testament and codicil thereto, and a prior purported testamentary instrument.

At the conclusion of the Petitioner's case, a request was made for the court to consider the application of PJI 1:75 against the Objectant for her failure to produce John Bartolini as a witness and legal arguments on this issue were placed on the record. Subsequent to conclusion of the trial, the court was informed that Mr. Bartolini had sent an email to the court's Chief Clerk on the day the trial was concluded wherein he made seemingly contradictory statements. Mr. Bartolini indicated his fervent desire to be heard at trial and, on the other hand, his unwillingness to appear unless subpoenaed. Mr. Bartolini also intimated that if he were compelled to appear he would invoke his right against self-incrimination under the Fifth Amendment to the United States Constitution. In light of this confounding communication, the court summoned the parties to appear. After hearing from the parties as well as taking testimony fromthe Chief Clerk regarding Mr. Bartolini's ex parte contact with her, the court exercised its discretion and reopened the trial and informed Mr. Bartolini that he would be given an opportunity to be heard. Mr. Bartolini thereafter appeared and was examined under oath.

After considering all the testimony and documentary evidence submitted the court makes the following findings of fact and conclusions of law:

The statutory and common law requirements in New York State for the probate of a lost testamentary instrument, and more pointedly in this case, the invocation of the rebuttable presumption of revocation that arises when evidence demonstrates that a disputed instrument was last in control of the Decedent prior to death, have remained virtually unchanged for over a century (Compare SCPA §1407 and Matter of Lewis, 25 NY3d 456 with Sur. Ct. Act §143 and In re Kennedy's Will, 167 NY 163).

Pursuant to Surrogate's Court Procedure Act §1407:

A lost or destroyed will may be admitted to probate only if

1. It is established that the will has not been revoked, and

2. Execution of the will is proved in the manner required for the probate of an existing will, and

3. All of the provisions of the will are clearly and distinctly proved by each of at least two credible witnesses or by a copy or draft of the will proved to be true and complete.

The latter two of the above requirements were for all intents and purposes not [*3]contested at the trial. In any event, the testimony of Ann Marie Barbagallo, the attorney draftsperson who supervised the execution of the disputed instruments, and of James Bishoff and Linda Prezioso, the attesting witness to the codicil, adequately fulfilled the Petitioner's burden on these two elements.[FN1]

The primary focus of the testimony, exhibits and legal arguments proffered at the trial centered on whether the testamentary instruments offered for probate were revoked by the Decedent during his lifetime. A testator may revoke a will or codicil by executing a writing in the form of a will or by destroying the instrument with revocatory intent (EPTL §3-4.1[a][2][A][I]). The discovery and production of copies of the disputed instrument do not constitute evidence to contradict a Decedent's revocation of the instrument (See, Crossman v Crossman, 95 NY 145).

At common law, a strong presumption of revocation arises when a testamentary instrument, known to have been in possession of the testator prior to death, can not be located posthumously despite a diligent search (See, Matter of Lewis, supra; In re Kennedy's Will, supra; Matter of Winters, 84 AD3d 1388; In re Evans, 264 AD2d 482). Even absent any proof that a testator destroyed the instrument, this presumption arises and is a substitute of positive proof (Collyer v. Collyer, 110 NY 481).

If this presumption arises, the burden is on the Petitioner to prove that the lost or destroyed instrument in question was not revoked by the testator while alive (See e.g., Matter of Winters, supra; In re Evans, supra). "It is not sufficient to show that a person interested to establish the intestacy had an opportunity to destroy a will. He must go further and show by facts and circumstances that the will was actually fraudulently destroyed" (In re Staiger's Will, 243 NY 468). The concept of "fraudulent destruction" "has nothing to do with the question of the motive for the destruction, but solely with the question of the agency of destruction" (In re Will of Fox, 9 NY2d 400, 413). In other words, the presumption is overcome by proving that the instrument was destroyed by someone other than the testator without his knowledge or consent or accidentally lost (Id).

Barbagallo testified that as a matter of office practice she never retained testamentary instruments after execution and that her clients always departed with any original will she prepared and supervised. Ali averred that she accompanied the Decedent to Barbagallo's on the occasions when the purported will and codicil were executed and that the Decedent departed the office with the original testamentary instruments on each occasion. Ali further testified that the Decedent sealed the purported will in a Federal Express envelope and placed it in a sock drawer in his dresser. Ali testified that sometime before the purported codicil was executed, she, at the request of the Decedent, took the Federal Express envelope that contained the will to her residence in Brooklyn. She stated this was done at the request of the Decedent [*4]because he was concerned that it might be destroyed in a fire or removed from the premises. While the will was in the possession of Ali at her residence, she and Decedent attempted to locate a safety deposit box for the Decedent. When a box could not be procured within two weeks, Ali claimed that she returned the will to its original location in the Decedent's residence. The day the codicil offered for probate was executed, Ali averred that she removed the will from the sock drawer and placed the will and codicil in a new Federal Express envelope, sealed it and placed it back in the drawer. Both Markee and Bartolini testified that neither could locate the disputed will or codicil in their searches of the Decedent's residence after his death.

Based upon the foregoing testimony the "the presumption arises that the decedent [himself] destroyed the will and codicil animo revocandi" (In re Kennedy's Will, supra at 168). Thus, the issue to be determined is whether the Petitioner proffered sufficient proof to overcome this strong presumption of revocation.

Barbagallo, Ali and Markee all testified that the Decedent had a falling out with his nephew Bartolini. All these witnesses averred that the Decedent believed that Bartolini used the Decedent's name to apply for a credit card without his knowledge and that he no longer trusted his nephew. Barbagallo testified that at the request of the Decedent, she drafted and forwarded a letter to Bartolini dated February 8, 2012 wherein she, inter alia, insisted Bartolini cease using the Decedent's name in association with Bartolini's landscaping business or to apply for credit. Barbagallo stated that it was the Decedent's distrust of his nephew which drove him to execute the codicil which removed Bartolini as his nominated executor.

Ali testified that two days before the Decedent died and after his absence from the residence, she went to the drawer where the will and codicil were customarily kept and discovered the Federal Express envelope was not there.

Bartolini acknowledged that he possessed a key to the Decedent's premises. He stated that he had been a frequent visitor to his uncle's home, but before his uncle's death he had not entered the Decedent's home since Easter of 2012. Bartolini denied destroying the Decedent's will and asserted he was not even aware of its location. He averred that his falling out with the Decedent was caused by Ali, whom he referred to as an "interloper", and that until that breach, he was intimately involved with the Decedent's finances and other important papers. Bartolini denied obtaining a credit card in the Decedent's name, a claim which appears belied by documentary evidence received in evidence.

With respect Bartolini's knowledge concerning the contents of the instruments offered for probate, he offered contradictory testimony. At first he claimed that he became aware of the contents of the 2011 will during a conversation with Markee one to two months after the Decedent's death. Minutes later, he testified that he had a conversation with the Decedent regarding the contents of the 2011 will shortly after it was executed. Deposition testimony of Bartolini was also read into the record, wherein he alternatively stated that he learned of the contents of the 2011 will from his wife and Orsola, his mother. In deposition testimony from Orsola also read into the record, she stated that Bartolini was made aware of the contents of the 2011 by the Decedent. On cross-examination, Bartolini testified that he always understood his uncle's testamentary plan was that his property would be left to Orsola and then it would pass [*5]to him.

Based upon the court's observation of Bartolini's demeanor as a witness at trial, his confusing and less than cooperative attitude in appearing before the court, his frequent antagonistic attitude towards the Petitioner and his counsel, and his sometime ridiculous testimony, it is certainly fair to characterize him as a less than an endearing witness by any objective standard. Portions of his testimony also appeared to the court to stretch credulity to the breaking point. However, his testimony regarding his presence at the Decedent's residence during the time in question was never contradicted or impeached in a manner that would enable the court to reject it outright.

In the court's opinion, the evidence adduced by the Petitioner demonstrated that while Bartolini had motive and opportunity to destroy the instrument's offered for probate and that the Decedent considered him an untrustworthy individual, such evidence failed to overcome the presumption of revocation. It is well established that "mere suspicion, coupled with an opportunity, that . . . [Bartolini] either acting for [himself] or some one acting in [his] behalf, destroyed the will is not evidence of that fact" (In re Staiger's Will, supra at 471).

The only positive proof signaling that the instruments were destroyed was Ali's assertion that on the day the Decedent entered the hospital where he expired, she could not locate the will and codicil in their customary location and that they were never found thereafter. This evidence is at most equivocal and inadequate to overcome the very strong presumption of revocation. Additionally, the court notes that despite whatever misgivings the Decedent allegedly had regarding the safety of his will, he eventually determined to leave it in his possession rather than surrender it to a third party.

Accordingly, based upon all the evidence introduced at trial and the arguments of counsel, the testamentary instruments dated May 19, 2011 and February 9, 2012 are denied probate.

Settle Decree.

Dated: December 23, 2015

SURROGATE

Footnotes

Footnote 1:Although the witnesses to the May 19, 2011 testamentary instrument were not produced, the Decedent expressly confirmed and republished that instrument in the purported codicil thereto. As such, proof sufficient to admit the codicil to probate would also prove the instrument it amended (See, In re Estate of Greenberg, 261 NY 474; In re Brann, 219 NY 263).