Carmela Curley & another v. Fabiana Ternullo

Lowell, Massachusetts civil litigation lawyer represented the Plaintiff in a will contest dispute.



The decedent died on August 30, 2019, at age sixty-seven. He was survived by his wife, Fabiana; their minor son, Domenico Ternullo, Jr. ("Mimmo"); and his two children from a prior marriage, Carmela and John. Before marrying in 2006, the decedent and Fabiana executed a prenuptial agreement, under which Fabiana disclaimed any intestate share of the decedent's estate. However, the prenuptial agreement allowed the decedent to provide for Fabiana by a will. After he and Fabiana married, the decedent purchased a home and took title in his name alone.[3] The couple lived there with their son Mimmo, who was born in 2007, until the decedent's death.



In January 2019, the decedent was diagnosed with mesothelioma. In April 2019, Fabiana had dinner with Attorney Myra Lyons, who had represented the decedent in the preparation of the couple's prenuptial agreement and assisted him with various legal matters. At that dinner, Attorney Lyons asked Fabiana if the decedent had an estate plan, and Fabiana told her that he did not. Attorney Lyons later helped the decedent with some legal matters in July and August of 2019. On August 27, 2019, the decedent was hospitalized for the final time. After Attorney Lyons learned of the decedent's hospitalization, she prepared a deed conveying title to the couple's residence to Fabiana. "Neither Fabiana nor the [d]ecedent asked her to prepare a deed." However, Attorney Lyons believed that the decedent did not have an estate plan and thought he might "want to take care of [it]."



On August 28, 2019, Attorney Lyons and her husband visited the decedent in the hospital. After asking Fabiana to leave the room, Attorney Lyons told the decedent that "she had prepared a deed and asked what he wanted to do." The decedent told her that he wanted to "take care of Fabiana and Mimmo," and leave everything to them. He confirmed that he understood what he was signing and that no one had told him what to do, and he signed the deed with Attorney Lyons, her husband, and Mimmo in the room. Attorney Lyons also asked the decedent about a trust that he had previously established, and he told her to "leave it alone."[4] Attorney Lyons left the hospital and prepared a will and two copies of a power of attorney.



On August 29, 2019, Attorney Lyons returned to the hospital with the prepared will and powers of attorney. Michael Lyle and William Vinci, longtime friends of the decedent, were present to witness the execution of the documents. During the visit, which lasted approximately an hour, the decedent answered questions, appeared alert, and remembered having signed the deed the day before. Attorney Lyons explained that the will "left everything to Fabiana other than the [t]rust, and the [d]ecedent said that was what he wanted." Attorney Lyons also explained the powers of attorney. The decedent stated that he understood, and he "repeated several times" that he wanted to take care of Fabiana and Mimmo. The decedent signed the will and the two copies of the power of attorney.[5]



Following the decedent's death, on October 16, 2019, Carmela and John filed an equity complaint in the Probate and Family Court seeking recission of the deed conveying the residence to Fabiana based on lack of capacity and undue influence.[6] On March 6, 2020, Fabiana filed a petition for formal probate of the decedent's will and requested to be appointed as the personal representative.[7] On July 9, 2020,



Carmela and John filed affidavits of objection on grounds that the decedent lacked testamentary capacity to execute the will and that the will was the product of undue influence. The equity complaint and the petition for probate were then consolidated. On February 10, 2021, Carmela and John amended their equity complaint to add counts seeking recission of the power of attorney instrument and recission of actions taken under that instrument by Fabiana.



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Legal issue Did the Probate and Family Court err in denying the motion for recusal and granting summary judgment on the decedent's testamentary capacity, while finding no undue influence in the execution of the will, deed, and powers of attorney?

Headnote



PROBATE LAW. TESTAMENTARY CAPACITY. The case involves an appeal concerning the decedent's testamentary capacity to execute a deed, will, and powers of attorney, with the court affirming that the decedent possessed the necessary capacity supported by witness testimony and lack of evidence to the contrary.



PROBATE LAW. UNDUE INFLUENCE. The court evaluated claims of undue influence regarding the decedent's will and other documents, determining that the burden of proof was correctly allocated and finding no undue influence exercised by the beneficiaries due to lack of participation in executing the transactions.



JUDICIAL PROCEDURE. MOTION FOR RECUSAL. The appellants challenged the denial of a motion for recusal based on alleged judicial bias, which the court upheld, finding no evidence of extrajudicial bias or improper conduct influencing the judge's decisions.



Key Phrases Probate and Family Court. Undue influence. Testamentary capacity. Motion for recusal. Summary judgment.

Affirmed