Opinion
C. A. WP-2018-0498
02-10-2020
IN RE: ESTATE OF BARBARA J. CARDIFF
For Plaintiff: Michael P. Lynch, Esq. For Defendant: Kelly M. Fracassa, Esq.
For Plaintiff: Michael P. Lynch, Esq.
For Defendant: Kelly M. Fracassa, Esq.
DECISION
TAFT-CARTER, J.
Before this Court for decision is the Notice of Complaint and Appeal filed by Michael P. Cardiff, Christopher M. Cardiff, Andrea L. Morgan, and Jessica L. Murray (collectively, Petitioners). Petitioners ask this Court to review an Order of the Probate Court of the Town of Westerly dated September 5, 2018, which admitted the Last Will and Testament of Barbara Cardiff, dated February 10, 2016, to probate. The Estate of Barbara J. Cardiff, Matthew L. Lewiss, Esquire, Amy M. Campbell, Ronald M. Byington, and Anthony M. Byington (collectively, Respondents) have objected to Petitioners' Complaint and Appeal. Jurisdiction is pursuant to G.L. 1956 § 8-2-17.
I
Facts and Travel
On February 10, 2016, Barbara J. Cardiff (Ms. Cardiff) executed a document titled "Last Will and Testament of Barbara Cardiff." Pet'rs' Mem., Ex. A. Ms. Cardiff signed her name below a clause that stated: "IN WITNESS WHEREOF, I have signed my name on this the day of November, 2015, at Westerly, Rhode Island, declaring and publishing this instrument as my Last Will, in the presence of the undersigned witnesses, who witnessed and subscribed this Last Will at my request, and in my presence." Id. at 4. The number "10" was written before the word "day," and the words "day of November, 2015" were crossed out and replaced with "February 2016." Id.
Another clause followed Ms. Cardiff's signature, as well as an area designated for witness signatures. The clause stated:
"SIGNED AND DECLARED by Barbara Cardiff on the day of November, 2014 to be their Last Will, in our presence, at Westerly, Rhode Island, who at their request, in their presence and in the presence of each other, all being present at the same time, have signed our names as witnesses." Id.
A signature appears on the line designated "Witness #1 Signature." Id. Below, on the line designated "Witness #1 Name (Please Print)," is the handwritten name Christopher M Fusaro. The lines designated "Witness #2 Signature" and "Witness #2 Name (Please Print)" were left blank. Id.
The last section of the document is entitled "Affidavit," and is followed by a notary clause. The clause states as follows:
"In Westerly on this 10 th day of February, 2016 before me personally appeared the undersigned, who, being duly sworn, depose and say that: they witnessed the execution of the Last Will of Barbara Cardiff; that the signature to the Last Will is in the handwriting of the Testator or was made by some other person for the Testator, in the Testator's presence and by the Testator's express direction; that the Testator so subscribed the Last Will and declared same to be their Last Will in their presence; that they thereafter subscribed the same witnesses in the presence of the Testator and in the presence of each other; that at the time of execution of the Last Will the Testator appeared to be of sound mind or eighteen (18) years of age or over; and that the signatures of the witnesses on the Last Will are genuine.
"Subscribed and sworn to before me on the day and date first above written,
Notary Public"Id. at 4-5. The name Linda L. LaParle was signed above the line designated "Notary Public." Id. at 5. A stamp with the words "LINDA L. LAPARLE MY COMMISSION EXPIRES" was affixed below the signature and the date "1/17/20" was written next to the stamp. Id.
Ms. Cardiff died on May 5, 2018. Resp'ts' Mem. at 2. On June 15, 2018, Ms. Cardiff's niece Amy M. Campbell filed a Petition for Probate of Will with the Probate Court of the Town of Westerly. Pet. for Probate of Will. On July 11, 2018, Michael P. Cardiff filed an objection to the Petition. Obj. to Entry of Will.
On June 19, 2018, Christopher M. Fusaro (Mr. Fusaro) and Linda L. LaParle (Ms. LaParle) signed documents entitled "Affidavit for Proof of Will." Pet'rs' Mem., Ex. B, Ex. C. The instrument signed by Mr. Fusaro provided that:
"I witnessed the execution of the Will of BARBARA CARDIFF on February 10, 2016; that the signature to the Will is in the handwriting of the Testatrix; that said Testatrix so subscribed said Will and declared the same to be her Will and Testament in my presence; that I thereafter subscribed the same as witness in the presence of said Testatrix and in the presence of Linda L. Laparle; that at the time of execution of said Will the Testatrix appeared to be of sound mind and eighteen years of age or over; and that the signatures of the witness and notary on said Will are genuine."
Mr. Fusaro's signature follows his acknowledgement. His signature was notarized by Linda M. Stefanski. Id., Ex. B.
Ms. LaParle executed a similar document. Id., Ex. C. The "Affidavit for Proof of Will" signed by Ms. LaParle states:
"I witnessed the signature of the Testatrix and CHRISTOPHER M. FUSARO but neglected to sign as Witness on the original Will and only signed as a notary. In fact, I witnessed the execution of the Will of BARBARA CARDIFF on February 10, 2016; that the signature to the Will is in the handwriting of the Testatrix; that said Testatrix so subscribed said Will and declared the same to be her Will and Testament in my presence; that I thereafter subscribed the same as notary in the presence of said Testatrix and in the presence of Christopher M. Fusaro; that at the time of execution of said Will the Testatrix appeared to be of sound mind and eighteen years of age or over; and that the signatures of the witness and notary on said Will are genuine."
Ms. LaParle signed her name below the acknowledgement and Linda M. Stefanski notarized her signature. Id.
The Probate Court of the Town of Westerly admitted the Last Will and Testament of Barbara J. Cardiff to probate on September 5, 2018. Notice of Compl. and Appeal ¶ 2. Consequently, on September 20, 2018, Petitioners filed a Claim of Appeal with the Probate Court; they thereafter filed a Notice of Complaint and Appeal with this Court on September 24, 2018.
Petitioners filed their Memorandum in Support of Appeal to Overturn Admitting Decedent's Will to Probate on June 28, 2019. Respondents filed their memorandum in response thereto on July 29, 2019. Petitioners filed a reply memorandum on November 1, 2019.
II
Standard of Review
Section 33-23-1(b) of the General Laws establishes a de novo standard of review to be applied by the trial court justice who reviews an appeal from probate court. The trial court justice is not bound by the factual findings of the probate court justice. Section 33-23-1(b). However, "[t]he findings of fact and/or decisions of the probate court may be given as much weight and deference as the superior court deems appropriate . . . ." Id.
The particular issue before this Court is one of statutory interpretation. Matters of statutory interpretation are questions of law. "When construing a statute [this Court's] ultimate goal is to give effect to the purpose of the act as intended by the Legislature." State v. Burke, 811 A.2d 1158, 1167 (R.I. 2002). The threshold issue in matters of statutory interpretation is whether the statute is ambiguous. Bucci v. Lehman Brothers Bank, FSB, 68 A.3d 1069, 1078 (R.I. 2013). A statute is ambiguous if it is reasonably "'susceptible of more than one meaning.'" Town of Burrillville v. Pascoag Apartment Associates, LLC, 950 A.2d 435, 445 (R.I. 2008) (quoting Unistrut Corp. v. State Department of Labor and Training, 922 A.2d 93, 98 (R.I. 2007)). "[W]hen the language of a statute is clear and unambiguous, [the court] must interpret the statute literally and must give the words of the statute their plain and ordinary meanings." Accent Store Design, Inc. v. Marathon House, Inc., 674 A.2d 1223, 1226 (R.I. 1996) (alteration omitted).
III
Analysis
The essence of this dispute is whether the Last Will and Testament of Barbara Cardiff dated February 10, 2016 (the Will), which was admitted to probate on September 5, 2018, meets the necessary formalities described in § 33-5-5. Petitioners argue that the Will was not executed in accordance with § 33-5-5 because only one witness, Mr. Fusaro, subscribed the Will as a witness. Pet'rs' Mem. at 1. Further, Petitioners argue that Ms. LaParle did not subscribe the Will as a witness, but rather, in her capacity as a notary. Id. at 2. Thus, Petitioners argue that the Will is invalid because it was not subscribed by a minimum of two witnesses. Id.
Respondents, however, argue that the Will does demonstrate conformance with § 33-5-5. Respondents suggest that the Will complies with § 33-5-5 because the Will was witnessed and subscribed by Mr. Fusaro and Ms. LaParle. Resp'ts' Mem. at 6. Therefore, according to Respondents, the Probate Court of the Town of Westerly properly admitted the Will to probate. Id. at 9-10.
The precise issue before this Court is whether an individual who signs a will as a notary public may be a "witness" in accordance with § 33-5-5. The purposes of formality statutes such as § 33-5-5 are to provide safeguards with respect to the succession of a testator's property; and "to prevent . . . fraud, perjury, mistake and the chance of one instrument being substituted for another." 2 Bowe-Parker: Page on Wills § 19.4 (1960). Therefore, if a testator complies with the requirements established in the relevant formality statute, his or her testamentary goals should be achieved. See Estate of Giuliano v. Giuliano, 949 A.2d 386, 392 n.5 (R.I. 2008) ("Although the primary purpose of succession laws is realization of the decedent's intent, statutes intercede to thwart even the dearest goals of a would-be-testator . . . The statutory requirements are generally straightforward, and as long as the testator is careful, she [or he] should succeed in meeting these requirements.") (citation omitted).
Section 33-5-5 entitled "Execution of will-Acknowledgment and attestation" establishes that:
"No will shall be valid . . . unless it shall be in writing and signed by the testator, or by some other person for him or her in his or her presence and by his or her express direction; and this signature shall be made or acknowledged by the testator in the presence of two (2) or more witnesses present at the same time, and the witnesses shall attest and shall subscribe the will in the presence of the testator, but no form of attestation shall be necessary, and no other publication shall be necessary."
The Rhode Island Supreme Court summarized the requirements of § 33-5-5 succinctly in Estate of Giuliano. There, the Court held: "a valid will in Rhode Island must be signed by the testator in the presence of two witnesses; those witnesses, in turn, must sign the will in the presence of each other." 949 A.2d at 392.
The disposition of this case, therefore, turns on whether or not Ms. LaParle was a witness to the Will. This Court concludes that she was in fact a witness. Section 33-5-5 provides that a testator must sign his or her will "in the presence of two (2) or more witnesses present at the same time," and that those witnesses "shall attest and shall subscribe the will in the presence of the testator." Section 33-5-5 does not define the term "witness." Generally, however, a "witness" is "[s]omeone who sees, knows, or vouches for something." Witness, Black's Law Dictionary (11th ed. 2019). Petitioners suggest that Ms. LaParle was not a proper witness to the Will because she signed in her capacity as a notary public. Pet'rs' Mem. at 2. Whether Ms. LaParle identified as a witness or a notary public at the time she signed the Will, however, is irrelevant. Determining whether a will was witnessed by the requisite number of individuals does not turn on labels. "[A] witness to a will does not have to intend to witness a will if in fact his acts and signature meet the statutory requirements." 2 Bowe-Parker: Page on Wills § 19.129. Moreover, a notary public may be regarded as a witness as well as an officer. Id. (citing Keely v. Moore, 196 U.S. 38, 45 (1904)); see also id. § 19.149 ("If . . . an officer who takes an acknowledgment with the consent and cooperation of the testator, and who intends to make his signature to the original certificate of acknowledgement, shall complete the execution of the instrument, he may be counted as a subscribing witness, if there are not enough subscribing witnesses without him.") (emphasis added).
The Supreme Court of Alabama addressed this issue in Pickens v. Estate of Fenn, 251 So.3d 34, 37 (Ala. 2017). In Pickens, the Court considered whether a notary who signs a will in his or her capacity as a notary could be considered a witness to a will under § 43-8-131, Ala. Code 1975. The Court answered in the affirmative, holding that "nothing in the statute . . . prohibit[ed] a notary public from serving as a witness." Id. at 39. Of import to that Court was not the capacity in which the notary public signed the document, but rather, that the notary public observed the testator sign the document, and signed the document herself in accordance with the formality statute. Id.
Here, the Will and the circumstances surrounding its execution demonstrate compliance with § 33-5-5. Upon signing the Will, Ms. Cardiff declared, in the attestation clause above her signature, the following: "I have signed my name on this the [sic] 10 February 2016 at Westerly, Rhode Island, declaring and publishing this instrument as my Last Will, in the presence of the undersigned witnesses, who witnessed and subscribed this Last Will at my request, and in my presence." Pet'rs' Mem., Ex. A at 4 (emphasis added).
Ms. Cardiff's signature is followed by another attestation clause, which is followed by the signature of Mr. Fusaro. Id. By signing below the second attestation clause, Mr. Fusaro acknowledged that Ms. Cardiff signed the Will in his presence, and that he signed the Will in her presence. Id. Mr. Fusaro further confirms these circumstances in his Affidavit for Proof of Will. Pet'rs' Mem., Ex. B. In his affidavit, Mr. Fusaro attests that Ms. Cardiff "subscribed said Will and declared the same to be her Will and Testament in [his] presence" and that "[he] thereafter subscribed the same as witness in the presence of said Testatrix and in the presence of Linda L. Laparle[.]" Id.
Further, Ms. LaParle signed the Will and stated under oath, twice, that she witnessed the events surrounding the signing of the Will. See Pet'rs' Mem., Ex. A; see also id., Ex. C. In the notary clause above Ms. LaParle's signature, she declares that "[she] witnessed the execution of the Last Will of Barbara Cardiff" and "the Testator so subscribed the Last Will and declared the same to be their Last Will in their presence." Id., Ex. A. Moreover, in her Affidavit of Proof of Will, Ms. LaParle stated that she "witnessed the signature of the Testatrix and CHRISTOPHER M. FUSARO" and she "thereafter subscribed the same as notary in the presence of said Testatrix and in the presence of Christopher M. Fusaro[.]" Id., Ex. C. The record clearly shows that the Will was "signed by the testator in the presence of two witnesses" and "those witnesses, in turn, [ ] sign[ed] the will in the presence of each other." Estate of Giuliano, 949 A.2d at 392.
IV
Conclusion
The Order of the Probate Court of the Town of Westerly admitting the Last Will and Testament of Barbara Cardiff to probate is affirmed. Counsel shall submit an appropriate order for entry to this Court.