Opinion
FBTCV176066326S
08-08-2019
F. Daniel Santoro v. Jo-Ann Tomaiuolo Scebold, Executrix et al.
UNPUBLISHED OPINION
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Jennings, Alfred J., J.T.R.
MEMORANDUM OF DECISION
Alfred J. Jennings, Jr. Judge
This is a trial de novo appeal from the July 21, 2017 decree of the Trumbull Probate Court (T.R. Rowe, J.) admitting to probate the November 2, 2014 Last Will and Testament (the "Will") of the decedent Alfred A. Tomaiuolo over the objection of his heir and nephew, the appellant F. Daniel Santoro, who opposed the admitting of the will to probate on the grounds of lack of testimentary capacity and potential undue influence. Santoro is not named as a beneficiary under the Will.
Alfred A. Tomaiuolo died at Trumbull, Connecticut on March 13, 2017.
This court heard evidence on February 20 and 21, 2019. Pre-trial and post-trial memoranda of law have been filed by the appellant/ plaintiff F. Daniel Santoro, the decedent’s nephew and an heir at law, and the executrix/defendant Jo-Ann Tomaiuolo Scebold, the decedent’s niece and an heir at law, who is the primary beneficiary under the Will. Other defendants, are Barbara Griffin, John P. Horably Michelle Horably, Vanessa Horably Gallagher, and Alexandra D. Scebold, all named beneficiaries in the decedent’s Will. All defendants other than Jo-Ann Tomaiuolo Scebold were defaulted for failure to appear and failed to testify or otherwise participate in the trial.
The Amended Complaint alleges that the plaintiff F. Daniel Santoro is aggrieved by the decree admitting the Will to probate and appeals for the reasons that:
a. The deceased, at the date of executing the alleged instrument, and for some time prior thereto, was of unsound mind and memory, and had not sufficient testamentary capacity to make and execute a will.
b. The deceased, at the date of executing the instrument, and for a long time previous thereto, had been ill and afflicted with periods of depression which would last for hours at a time, and when he was so suffering his mind would become clouded and his mentality would weakened, so that his mind and memory were not sound enough to enable him to know and understand the business in which he was engaged and he executed the instrument while in such a period of depression.
c. The deceased, at the date of executing the instrument, was subject to delusions that so affected his mental capacity that he was not able to understand the business in which he was engaged when he executed the instrument and the will was the result of these delusions.
d. The instrument was executed by the deceased while under the influence, domination and control of the defendant Jo-Ann Tomaiuolo Scebold, and as the result of this influence, domination and control, unduly and improperly exerted, the instrument was not the free and voluntary expression of the testamentary intent of the deceased.
The defendant in her Answer to the Amended Complaint denies the foregoing allegations.
There is no dispute but that the Will was validly executed under the Connecticut statutory requirements. Conn. Gen. Stat. § 45a-251 provides that, "A will or codicil shall not be valid to pass any property unless it is in writing, subscribed by the testator, and attested by two witnesses, each of them subscribing in the testator’s presence." The Will is obviously in writing. It bears the legible signature of Alfred A. Tomaiuolo, under seal. There is no claim that he did not sign the Will in his own hand. It is witnessed by two persons who signed their names attesting that the Testator Alfred A. Tomaiuolo signed, sealed, and declared the Will to be his last will and testament in their presence and that they signed as witnesses in his presence and at his request in the presence of each other. The will was validly executed. Altough neither attesting witness was called to testify at trial they both had signed self-proving affidavits annexed to the original Will as authorized under Conn. Gen. Stat. § 45-285 in which they both state under oath that the testator ..."Alfred A. Tomaiuolo, at the time of execution of the Said Will, appeared to each of them to be of full age and of sound and disposing mind, memory, and understanding, not under any restraint or improper influence of any kind, or in any way incompetent to make a Will ..."
1. Testamentary Capacity
Conn. Gen. Stat. § 45a-250 provides that. "Any person eighteen years of age or older, of sound mind, may dispose of his estate by will." "What constitutes testamentary capacity is a question of law ... To make a valid will, the testatrix must have had mind and memory sound enough to know and understand the business upon which she was engaged, that of the execution of the will, at the very time she executed it ... Whether she measured up to this test is a question of fact for the trier." In re City National Bank & Trust Co. Of Danbury, 145 Conn. 518, 521 (1958). That is, the testator’s mind and memory must be sufficient to know that the testator is executing his or her will, have some idea of the testator’s assets, know the natural objects of the testator’s bounty, understand the testator’s dispository plan, and be free of undue influence. Appeal of Richmond, 59 Conn. 226 (1890).
In Stanton v. Grigley, 177 Conn. 558 (1979) our Supreme Court outlined both the procedure and test for establishing testamentary capacity:
The burden of proof in disputes over testamentary capacity is on the party claiming under the will. Pastir v. Bielski, 174 Conn. 193, 194, 384 A.2d 367 (1978) ... While there is a presumption of sanity in the performance of legal acts, the party that presents a will still bears the burden of going forward with his proof, and only then does the burden shift to the opponents to prove incapacity. Wheeler v. Bockett, 91 Conn. 838, 392, 100 A. 13 (1917).
"The minimum level of mental capacity required to make a will is less than that necessary to make a contract or a deed ... Likewise, less mental capacity is required for the testator to make a will than to carry on business transactions generally, or ordinary business affairs. Thus, the ability to transact business is not a true test of testamentary capacity. A person may execute a valid will, even if he or she is not competent to transact ordinary, everyday affairs." Citations and internal quotation marks omitted. DeRoy v. Estate of Baron, 136 Conn.App. 123, 127-29 (2012).
Lay witnesses are permitted to testify as to medical conditions that constitute "obvious or simple matters of everyday life ..." State v. Orsini, 155 Conn. 367, 372 (1967). See, also, Sanzo’s Appeal from Probate, 133 Conn.App. 42, 49 (2012). ("Case law supports the proposition that lay witnesses may testify as to a testatrix’ mental condition.")
In this case, after having heard all the evidence at trial, the court concludes that defendant/executrix has met her initial burden of proving her prima facie case that her uncle Alfred A. Tomaiulo, at the time he executed his Last Will and Testament on December 2, 2014 at the age of 83, was in possession of his faculties and had mind and memory sound enough to know and understand the business upon which he was engaged, that of the execution of his will, and the distribution of his estate to his intended beneficiaries, and the exclusion of his nephew plaintiff F. Daniel Santoro.
First of all, the will itself evidences a mental awareness of family situations calling for specific provisions, such as the fact that one niece was not in need of a bequest "because she has done so well financially for herself" but leaves instead a specific bequest to each of her three children by name. The testator remembered to leave $1,000 to "my aide of over five years," and shows an awareness that the grave of the testator’s deceased sister had no footstone, and left instructions to his Executrix to pay the cost of a footstone from the proceeds of his estate, listing the exact information to be carved thereon.
The lawyer who represented Mr. Tomaiuolo from May of 2012 through the execution of his will on December 2, 2014, and prepared his Will for signature, and supervised its execution, Attorney Ronald A. Soccolli, Jr. testified at length. He said that during their very first telephone conversation, Mr. Tomaiuolo, who had no children of his own, made it clear from the outset that he didn’t want to provide anything for his only nephew, the plaintiff herein F. Daniel Santoro, "who had given him grief and he didn’t want to provide for him in his will." (TR 2/20/19, p. 9.) When lawyer and client first met in person on October 2, 2014, at the decedent’s room at the Middlebrook Farm Assisted Living Facility, with no one else present, Atty. Soccolli reviewed with Mr. Tomaiuollo "what his estate was made up of, who the natural objects of his estate were, if he was treating people disproportionately, [and] did he understand what that meant"? (TR. 14-15.) Atty. Soccolli further testified, as to that meeting:
He seemed very alert. He knew me by name. He actually greeted me by name when I- I arrived and he seemed very prepared for the meeting. As we were working through things I even remember a conversation about him talking about his ancestry back in Italy in the 1917, 1918 and who they were and what village they were from and that they came over. Because I’m Italian as well, so we were trying to make connections of where our families had come from so we- we did spend a little time side tracked, not doing specifically the will stuff. But I thought that was important to see if he really did have some awareness of his family and- and the past. (TR. 15.)
After that meeting Atty. Soccolli prepared a draft of the will and sent it to Mr. Tomaiuollo for review. They met again on November 4, 2014. The defendant Jo-Ann Scebold, his niece, was present initially but then "after some cordial pleasantries" she was asked to leave the room leaving attorney and client alone to discuss the draft of the will. A copy had already been marked with some handwritten changes which were not in Mr. Tomaiuollo’s handwriting. Those changes, and others which came up at the meeting, were discussed. Atty. Soccolli described the changes as "not significant" and considered the will to be ready for execution as soon as a final original could be produced with the most recent changes. When asked about Mr. Tomaiuollo’s mental condition at the November 4, 2014 meeting, Atty. Soccolli responded:
Almost identical to the first time I had met- met him. I didn’t- I didn’t see any significant difference between the two meeting dates in terms of his capacity and I felt he followed along with me section by section with the will with- with appropriate understanding. (TR. 18.)
Throughout the will-drafting process and the meetings of October 2, and November 4, 2014 it is significant that the residual clause of the will, Article Fourth, leaving the decedent’s entire residuary estate to his niece JoAnn Tomaiuollo Scebold, remained intact and so far as the record discloses, was not even further discussed after the first draft had been prepared.
At the time of execution of the will on December 2, 2014 during a final review of the will with only lawyer and client present, Mr. Tomaiuollo himself picked up a misspelling in the name of a beneficiary which had to be corrected before final signing.
The following colloquy occurred at trial with respect to the will-signing ceremony on December 2, 2014:
Q. And at the time of the will signing, again, did you note any changes in Mr. Tomaiuolo’s mental condition that would cause you concern as- as his attorney?
A. No. He seemed very consistent from the three interactions that I had with him. I didn’t note any high or low in his mental acuity. I certainly know- could tell that he struggled with some things, but the things I needed to be there for, I felt he understood what he was doing.
Q. So he generally understood the nature of his assets; correct? And he understood who his relatives were, and he understood who he was leaving money or assets to; correct?
A. Yeah. I took him through those paces to make sure, one, he understood what the size of his estate was; two, who was going to be receiving it and under what conditions; and if he was leaving anybody out, that he understood what that meant. (TR. 2/20/219 p. 28.)
Further, the physician who attended Mr. Tomaiuolo while he lived in assisted living at Middlebrook Farm from 2011 until the time of his death in 2017, Dr. Joseph Evangelista, board certified in internal medicine, 31 years in practice, testified as to Mr. Tomaiuolo’s health and competence during that period. He characterized Mr. Tomaiuolo’s physical issues at the outset of their relationship as "significant physical disability with his Parkinson’s disease, ... some mild memory impairment, hypertension, ... hyperlipidemia, ... on some medicine when I first began to follow him for anxiety and also on an anti-depressant." "So I assume he had a prior diagnosis of anxiety and depression as well." (TR 2/20/19, p. 75.) Dr. Evangelista characterized Mr. Tomaiuolo’s mental condition as:
... alert, ... usually oriented to person, place and time. He was able to converse and to attend and concentrate on the discussions we had about his medical health. He seemed to be able to take some new information that I may provide, including a new physical finding, and ask appropriate questions in response to that. So I thought he ability to both judge and reason a new type of situation was- was pretty good and intact. His physical deterioration occurred over the years where he became less ambulatory. (TR 2/20/19, p. 76.)
Dr. Evangelista reviewed his progress notes (Pl. Ex 9) of visits with Mr. Tomaiuolo on November 12, 2014 (about three weeks before signing his will on December 2) and May 26, 2015 (about 6 months after signing his will). The results of his physical examinations are noted in detail, and under mental condition he notes "Pleasant, alert, and oriented times three." (November 12) and "alert and oriented times three; mood normal" (May 26). The doctor explained the term "alert times three" as" ... that he was alert or conscious and that he was oriented to his name, to his place, and to the time. Able to stand on his own.," (TR 2/20/19 pp. 76-78).
The court attaches a high degree of accuracy and credibility to the testimony of these two experienced professionals, Attorney Soccolli and Dr. Evangelista, each of whom was in close contact with Mr. Tomaiuolo during the very time period of his life when he decided to make a new will, and did execute that will on December 2, 2014.
The burden then shifts to the plaintiff F. Daniel Santoro to prove that Mr. Tomaiuolo was incompetent to make a will on December 2, 2014. Plaintiff has failed to meet that burden. Plaintiff has presented documentary evidence and his own testimony that Mr. Tomaiuolo was under a great deal of physical and emotional stress in July of 2006 following a fire in the roof fan of the six-family building he owned and where he lived on Benham Avenue in Bridgeport. Mr. Santore, when he heard of the fire, came up to Bridgeport from his home in Florida to help his uncle. There were instances of hoarding, uncleanliness, malnutrition, and bizarre behavior by the uncle who ended up being admitted to the Bridgeport Hospital psychiatric ward for a period of time. He was diagnosed during that time period in 2006 as having "frontotemporal atypical dementia" with no significant SDAT Senile Dementia of Alzheimer’s Type symptoms. (Pl. Ex. 5; Def. Ex. 9. TR 2/20/19 p. 81.) No medical witness was presented by the plaintiff to explain that diagnosis. Dr. Evangelista for the defendant testified that he did not know what the term "atypical dementia" meant (TR 81) but that "dementia itself would be a declining cognitive status, usually involving several different cognitive domains, memory being the most common." (TR 82.)
The plaintiff engaged an attorney to apply to the Bridgeport Probate Court for an involuntary conservatorship of Mr. Tomiouolo. Attorney Carmine Perry was appointed guardian ad litem. Attorney Sylvestter Salcedo was appointed as counsel for Mr. Tomiouolo. A Physician’s Evaluation was ordered and performed on August 4, 2006. The report by Dr. (signature illegible) (Def. Ex. L) gives a diagnosis of "Dementia Alzheimer’s type with severe anxiety." Following a hearing with Mr. Tomaiuolo present the Probate Court ordered the following appointments on September 12, 2006: the plaintiff F. Daniel Santoro as conservator of the person; and Attorney Bruce Gordon as conservator of the Estate. (Def. Ex O.) The plaintiff placed his uncle in The Atria Senior Living Facility in Stratford where he lived in a dementia lock-down unit. His caregiver aide for two years during that period, Barbara Griffin, testified: "He was a very well person in terms of talking with him. I had no problem. He wasn’t- I’ve been around people- like my mother had Alzheimer’s and she had it four years, and I know he didn’t have that when I was with him. He talked very well." (TR 2/10/19, 58.) On June 23, 2010 Atty. Salcedo filed in the Bridgeport Probate Court on behalf of Mr. Tomiouolo a Motion to Remove Conservator of the Person and Terminate Involuntary Conservatorship (Def. Ex 2) which motion recited, in part:
Four years later, Mr. Tomaiuolo has recovered sufficiently to the point that he is able to decide knowingly, intelligently, and voluntarily that he would prefer to enter into a voluntary conservatorship status and select a conservator of the person of his own choosing. Today, Mr. Tomiouolo is awake, alert, and aware. His current condition, physically and mentally, is a vast contrast to his mental and physical condition in 2006.
That motion was followed later by a Motion to Change Conservator of the Person, which advised the court that Mr. Tomiouolo no longer wanted his nephew Mr. Daniel Santoro to be his conservator and asked that Atty. Michelle Mills be appointed in Mr. Santoro’s place as the new Conservator of the Person of Mr. Tomiouolo. The reason for that request was articulated in a subsequent Motion to Request a full hearing for Motion to Change Conservator of the Person (Def. Ex. 5):
However, the petitioner wants to have his day in court to explain fully through testimony and written evidence why Mr. Daniel Santoro should not continue to be involved in his life in any way, Mr. Santoro has been and continues to be an irritant and a hindrance to the petitioner’s recovery and well being mentally and physically, and the petitioner’s efforts to regain or maintain a stable, healthy, and enjoyable quality of life is constantly interrupted and sabotaged by Mr. Santoro’s actions and antics. (Def. Ex. 5.)
Following a hearing, the Probate Court, Paul J. Ganim, Judge, issued a Decree on December 2, 2010 by which the plaintiff herein Francis Daniel Santoro was removed as Limited Conservator of the Person and Attorney Bruce Gordon was removed as Conservator of the Estate of Alfred Tomiouolo, and Atty. Michelle Mills was appointed as Successor Limited Conservator of the Person and Successor Conservator of the Estate. (Def. Ex. 8.) As such, Atty. Mills arranged to move Mr. Tomiouolo’s residence at his request from The Atrium to Middlebrook Farms Assisted Living in Trumbull where his medical care was undertaken by Dr. Evangelista, and, at Mr. Tomiouolo’s request. engaged Attorney Soccolli to prepare a new Last Will and Testament. While at Middlebrook Farms, Mr. Tomiouolo’s primary family contact and frequent visitor was the defendant, his niece Jo-Ann Scebold. During the seven years prior to his 2017 death that Mr. Tomiouolo lived at Meadowbrook Farms, Mr. Santoro testified that he visited his uncle on three occasions: in 2011, 2013, and 2015. (TR 2/20/19 TR. 118.) Jo-Ann Scebold testifed that her uncle during that period would refer to the plaintiff Mr. Santoro as "That louse, Dan, bastard Dan, son of a bitch Dan, That type of thing" (2.21/19 TR 39).
While the Motions to Remove Conservator and Change Conservator were pending, Probate Judge Ganim had entered a pendente lite decree on November 18, 2018 limiting Mr. Santoro’s authority as Conservator of the Person to: (a) assisting the Conserved Person with making medical appointments; and (h) making medical decisions on behalf of the Conserved Person only when informed consent cannot be obtained from the Conserved Person himself and upon request of a medical doctor. The decree also specified: "Mr. Tomiouolo will decide where he wants to live and may visit potential placements with the court-appointed Guardian Ad Litem." These same limitations and condition were continued in effect when Atty. Mills was appointed Successor Conservator of the Person.
The relevant time for determining the testamentary capacity of Alfred Tomaiuolo is the day he signed his will on December 2, 2014. Trella v. Prestoff, 128 Conn. 337, 338 (1941). The defendant executor has shown by a preponderance of the evidence that Mr. Tomaiuolo had the capacity to make a valid will on that date. The self-proving affidavits of the two attesting witnesses, the fine details as to family and friendship matters in the will itself, the testimony of the defendant Jo-Ann Scebold who was in frequent contact with him in the months leading up to his signing the Will, and the highly credible testimony of the two professionals who came to court and testified in detail, Attorney Ronald A. Soccolli, Jr. and Dr. Joseph Evangelista, and their detailed records, all point to the conclusion that Mr. Tomaiuolo had the requisite knowledge and understanding of his estate, his family, and the business he was about, to make a new will.
The plaintiff presented no evidence or testimony directly related to the December 2, 2014 time period. Except for two visits in 2011 and 2013 Mr. Santoro had been out of contact with his uncle since December 2, 2010 when he was ousted as Conservator of the Person. Plaintiff’s evidence as to testamentary capacity primarily goes back to the events of 2006 - 2008, six to eight years before the Will was signed. "While in determining the question as to the mental capacity of a testator, evidence is received as to his conduct and condition prior and subsequent to the point of time when [the will] is executed, it is so admitted solely for such light as it may afford as to his capacity at that point of time and diminishes in weight as time lengthens in each direction from that point." (Citations omitted.) Jackson v. Waller, 126 Conn. 294, 301 (1940). The plaintiff’s evidence of bizarre behavior by Mr. Alfred Tomaiuolo in 2006, and the involuntary conservatorship ordered in 2006, and the unexplained 2006 diagnosis of "frontotemporal atypical dementia" are too distant and too unspecific as compared to the weightier and more detailed evidence presented by the defendant as to the testator’s condition in the time frame after 2010 leading up to the signing of his will on December 2, 2014. As the Trumbull Probate Court stated, in admitting the Will:" . . [E]ven those recently confined to mental institutions or for whom conservators have been appointed may yet have testamentary capacity. Reid v. Lord, 102 Conn. 365 (1925)." Dr. Evangelista, after many visits commencing in 2011, clearly found him competent. The Bridgeport Probate Court obviously found that conditions as to Mr. Tomaiuolo’s mental capacity had changed for the better when, on December 2, 2010, four years prior to execution of the Will, the Court granted the motion to convert the guardianship from involuntary to voluntary and first severely limiting Mr. Santoro’s powers as conservator and then replacing him with a new conservator voluntarily selected by Mr. Tomaiuolo himself who was allowed to select his own place of residence, and, if available, give or withhold his own consent to medical procedures, attest convincingly to the improvement in his condition.
For these reasons the court finds that the decedent Alfred Tomaiuolo had testamentary capacity, on December 2, 2014 when he executed the Will at issue, and finds for the defendant on the issue of testamentary capacity.
II. Undue Influence
"Undue influence is the exercise of sufficient control over a person, whose acts are brought into question, in an attempt to destroy his free agency and constrain him to do something other than he would do under normal control." Reynolds v. Molitor, 184 Conn. 526, 528 (1981). In Wheeler v. Rockett, 91 Conn. 388 (1917), the Supreme Court approved and affirmed a jury charge that instructed, as indicated above, that the burden of proof on the issue of testamentary capacity was initially on the proponent of the will, and continued, "But when you come to the question of undue influence, the burden of proof shifts, and there the burden is on the contestants, the appellants ... and the burden is upon him upon the question of undue influence to prove by a fair preponderance of the testimony, that the will was procured by the exercise of undue influence." The plaintiff/appellant in this case, F. Daniel Santoro, then, had the burden of proving by a fair preponderance of the evidence that the Will of Alfred Tomaiuolo was procured by the undue influence of the defendant Jo-Ann Tomaiuolo Scebold. He has failed to meet that burden. The Will was drafted over a lengthy period of time with the assistance of and under the supervision of an experienced attorney. Although Ms. Scebold was present when Atty. Soccolli arrived at Middlebrook Farms for conferences with his client, she was asked to leave the room when the actual discussions of the Will took place. When he noticed that some of the comments on the proposed draft were not in Mr. Tomaiuolo’s handwriting Atty. Soccolli took steps to "ascertain that these were his representations [and not] someone else’s." (TR. 2/20/19, 52.) Ms. Scebold was not present in the separate room when the Will was executed. She testified that she never suggested to her uncle that she should be given anything in his will. (TR 2/21/10, 20.) Mr. Santoro was asked and answered on cross examination:
Q. So- but again, if I understand what you’re saying, you have no knowledge of- of- of any acts or any behavior on anything that Joanne Scebold said that would lead you to believe that she was exercising undue influence upon your uncle with respect to the execution of his will?
A. I have no direct knowledge, no.
Q. All right. Do you have any knowledge?
A. No, but I can surmise.
Q. Aside from surmise and conjecture?
A. No. I have no knowledge.(TR 2/20/19, 128.)
There is no evidence of undue influence and the court finds accordingly that the defendant Jo-Anne Scebold exercised no undue influence over the testamentary dispositions of the estate of her uncle Alfred Tomaiuolo in his Will. The court therefore finds for the defendant on the issue of undue influence.
Order
Judgment is entered for the defendant on all the allegations of the complaint. The decision of the Trumbull Probate Court admitting the December 2, 2014 Will of Alfred Tomaiuolo to probate is upheld.