Matter of Fondacaro

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[*1] Matter of Fondacaro 2019 NY Slip Op 52107(U) Decided on December 30, 2019 Surrogate's Court, Kings County Lopez Torres, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 30, 2019
Surrogate's Court, Kings County

In the Matter of the Probate Proceeding, Will of Carmela Fondacaro, Deceased.


Appearing Counsel are:

Attorney for Executor:

Andrew Sichenze

7703 5th Ave., Suite 1

Brooklyn, NY 11209
Margarita Lopez Torres, J.

In this uncontested probate proceeding, Aldo Fondacaro (the petitioner) offers for probate a written instrument dated May 15, 2016 (the propounded instrument), which purports to be the last will and testament of Carmela Fondacaro (the testator). The testator died on May 18, 2016 without spouse or issue. The petitioner is the testator's nephew and a beneficiary under the propounded instrument. Jurisdiction has been obtained over all necessary parties, and no objections have been filed.


The propounded instrument, written in Italian and executed in Italy, was submitted with a rough translation into English, which indicates that the instrument was hand-scribed by a notary public. According to the translation, the propounded instrument states that the testator and two witnesses were present at the execution and further states as a preamble:

[The testator] requests me to write her last will and testament in public form, and to that end, in the presence of the witnesses, she declared her last will that is therefore drawn by me as follows: 'I appoint my heirs in equal parts my brother Antonio Fondacaro and my nephews Aldo Fondacaro, son of Antonio, and Russel Ruggiero, son of my sister, Sarina.'

The propounded instrument goes on to bequest 25% of the testator's cash deposits in her [*2]American bank accounts each to Antonio, Aldo, and Russel; [FN1] equal shares of the testator's home in Bagnara Calabra to Antonio, Aldo, and Russel; equal shares of the testator's "movable properties" in Rome and Bagnara Calabra to Antonio, Aldo, and Russel; and equal shares of the cash in the testator's Italian bank accounts to Antonio, Aldo, and Russel. The propounded instrument further bequests $50,000 euros to a niece, Rossana Ieracitano; a vehicle to a grandnephew, Gabriele Polimeni; and the remaining 25% of the cash in the testator's American bank accounts and a parcel of real property in Rome to the non-profit organization Medici Senza Frontiere (Doctors Without Borders). The propounded instrument is signed at the end by the decedent, the two witnesses, and the notary public with his stamp affixed next to his signature. The propounded instrument does not contain an attestation clause.

The petitioner requests that the testimony of the attesting witnesses be dispensed with on the ground that one of the witnesses, Guiseppe Barila, resides in Bagnara Calabra, Italy and refuses to execute an affidavit of attesting witness before an official of the American Consulate. The petitioner further asserts that the second witness, Andrea Spinella, was visiting Bagnara Calabra when he witnessed the execution of the propounded instrument and cannot be located despite diligent efforts. The petitioner further requests the court to accept the testimony of the notary public, Clemente Mazzu, as an attesting witness. To that end, Mr. Mazzu submits an affidavit dated February 7, 2019 stating as follows:

Your deponent assisted the testator, Carmela Fondacaro, in the preparation of her Last Will and Testament which is the subject of the above captioned proceeding and supervised its execution on May 15th, 2016. [Y]our deponent witnessed the execution of the document by Carmela Fondacaro, and the execution of the document by Andrea Spinella and Guiseppe Barila, as witnesses to the execution by the testator. [Y]our deponent recognizes the signature of the testator and the signatures of the witnesses to her execution of the document now produced and shown to me purporting to be the Last Will and Testament of the testator dated May 15th, 2016. [Y]our deponent knows of his own knowledge that the signatures which appear on the document as witnesses are the signatures of Andrea Spinella and Guiseppe Barila, the same having been subscribed in my presence.


Where the testimony of a notary public is submitted as a substitute for an attesting witness, an "inquiry should be made as to whether one identified as a notary public was signing merely as a notary public or as a witness at the request of the testator." Will of Lucille Marglis, 2007 NY Misc. LEXIS 1593, *2 (Surr. Ct., NY County, 2007). If the inquiry reveals that the notary public was acting in a capacity beyond that of simply notarizing the document, the court may in its discretion accept the notary public's testimony as that of an attesting witness. See, e.g., In re Ryan's Will, 12 Misc 2d 192, 193-194 (Surr. Ct., Nassau Cty. 1958) (notary public is, in fact, an attesting witness where "he was asked to act as a subscribing witness because he was a notary public and because deceased desired to have what probably seemed to her the greater value which attached to a person holding official place").

Here, the propounded instrument indicates that the testator requested Mr. Mazzu to hand-scribe her last will and testament; to witness her execute the document before the two witnesses; [*3]to witness the two witnesses sign the document; and to sign the document himself as a notary public. It is clear, therefore, that Mr. Mazzu was acting in a capacity beyond that of a notary public at the execution ceremony. Further, where witnesses are deceased or unavailable, the court may in its discretion dispense with their testimonies. In re Will of Swenson, 3 Misc 2d 239 (Surr. Ct., Nassau Cty. 1956). Accordingly, the court dispenses with the testimony of the two witnesses and accepts Mr. Mazzu's testimony as that of a competent attesting witness.

The proponent of a will bears the burden of proving that the propounded instrument was duly executed in accordance with the statutory requirements under EPTL 3-2.1. Matter of Rottkamp, 95 AD3d 1338, 1339 (2d Dep't 2012); Matter of Collins, 60 NY2d 466, 468 (1983). The elements of due execution include (a) the testator signed at the end of the document; (b) the testator signed in the presence of each attesting witness; (c) the testator declared to each attesting witness that the document is his/her will; and (d) at least two attesting witnesses who sign the document at the testator's request. EPTL 3-2.1(a)(1)-(4). The procedure for the execution and attestation of a will need not be followed in the precise order set forth so long as all the formalities are observed to the satisfaction of the Surrogate. EPTL 3-2.1(b).

The statutory requirements for due execution were designed to prevent fraud. However, the beneficial purpose of the statute "should not be thwarted by an unduly strict interpretation of its provisions." In re Will of Kobrinsky, 51 Misc 2d 222, 222-223 (Surr. Ct., Kings Cty. 1966). This is particularly the case where the entirety of the circumstances and the evidence presented bear no suspicion of fraud. Id. Moreover, even where the testimony of a witness is unavailable, unreliable due to poor memory, or even contradictory to another witness's testimony, due execution may be established "upon proof of the handwriting of the testator, and of the subscribing witnesses, and also of such other circumstances as would be sufficient to prove the will upon the trial of an action." In re Estate of Bright, 20 Misc 2d 789, 189 N.Y.S.2d 234, 1959 NY Misc. LEXIS 3446 (Surr. Ct., Nassau Cty. 1959), aff'd, 12 AD2d 745 (1st Dep't 1961).

Here, Mr. Mazzu, who assisted in drafting the propounded instrument, states on the document itself that he was present throughout the execution ceremony and that the testator declared the instrument to be her last will and testament before the witnesses. Mr. Mazzu further submits an affidavit stating that he was present to witness the testator and the witnesses sign the instrument and that he recognizes the signatures to be theirs. This uncontested evidence sufficiently meets the burden of proof of due execution. Estate of Bright at 789. Moreover, a careful review of all the evidence indicates no reason to doubt that the propounded instrument is the valid last will and testament of the testator. Will of Kobrinsky at 223.

Based upon the uncontested proof submitted, the court is satisfied that the propounded instrument was duly executed. Further, the court is satisfied that at the time of execution, the testator was competent to make a will and was free of restraint or undue influence. SCPA 1406; 1408; EPTL 3-2.1; Matter of Derrick, 88 AD3d 877, 878-879 (2d Dep't 2011).

Accordingly, the propounded instrument is admitted to probate as the testator's last will and testament. Letters testamentary shall issue to Aldo Fondacaro upon duly qualifying according to law.

Submit decree.

Dated: December, 2019

Brooklyn, New York



Surrogate Footnotes

Footnote 1:The testator's American bank accounts are on deposit at a JPMorgan Chase branch located at 7427 5th Avenue, Brooklyn, NY, the testator having been a resident in Brooklyn, NY before moving to Italy.

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