The decedent, Alfred Finocchiaro, Sr., died in 2011, predeceased by his wife. The decedent had two sons (Alfred Jr. and Frank) and a daughter. His son Alfred Jr. had predeceased him, having committed suicide on December 29, 2006. The decedent’s daughter survived him, but died before the trial in this case began. The decedent resided with Alfred Jr. at various points after Alfred Jr. became estranged from his wife, and two months after Alfred Jr. committed suicide, the decedent moved to North Carolina with his son Frank. Before the decedent moved from New Jersey in March 2007, he executed a new Last Will and Testament.

The decedent’s son Frank admitted his father’s March 1, 2007 Will to probate. In response, Alfred Jr.’s estranged wife and Alfred Jr.’s children filed a complaint seeking to nullify the 2007 Will. They claimed that the 2007 Will was invalid because the decedent lacked testamentary capacity; that Frank unduly influenced his father to make the Will; and that it was improperly executed. They sought to invalidate the 2007 Will and reinstate a 2001 Will, which had divided the residuary estate between Frank and Alfred Jr., and provided that if one of the sons predeceased the decedent, that son’s share would pass to the son’s children.

Following a trial, the trial court concluded that plaintiffs had failed to prove, by clear and convincing evidence, that Frank committed undue influence or that the decedent had lacked testamentary capacity at the time of the 2007 Will. Plaintiffs appealed.

On appeal, the Appellate Division affirmed the trial court’s ruling. It began its analysis by summarizing the testimony at trial.

Dr. Bock, a family practice physician who had treated Mr. Finocchiaro in 2005, testified that he treated the decedent from September 2005 to January 2007. On his first visit, Dr. Bock reviewed his medical notes and summarized that the decedent was feeling well overall. A month later, the decedent was agitated and confused; he knew his name but did not know where he was, and Dr. Bock made a note of “dementia” in his file. In November, he testified that the decedent “wasn’t delusional.” The following month, his condition was “better.” During his regular house calls to the decedent in 2006, the doctor noted that the decedent’s physical appearance was deteriorating throughout the months. In his December 2006 house call, Dr. Bock wrote that the decedent was:

Walking about at home. Smoking. Pleasant. Conversive. Appropriate. Greeted me at the door. No complaints. Mild cough. Wants to stay home. Refusing nursing home placement.

Despite these notes, Dr. Bock testified at trial that the decedent did not know Dr. Bock’s name or what he did, even though he had seen him for the past year. Dr. Bock last saw the decedent in January 2007, when the decedent’s son Frank, in a “very agitated” state, told Dr. Bock he did not want him to continue treating his father. Dr. Bock opined that the decedent suffered from “a chronic, progressive course of dementia” from October 2005 until he last examined him in December 2006, and that the decedent was not competent that entire time period, and that he lacked testamentary capacity to make the 2007 Will.

Alfred Jr.’s estranged wife and children testified as to Alfred Jr.’s and his children’s close relationship with the decedent, although none of them had contact with the decedent after Alfred Jr.’s death.

The decedent’s daughter’s son, William, who was the decedent’s oldest grandchild, also testified. He had no financial interest in the outcome of the case, because he was treated the same under both the 2001 and 2007 Wills. He testified that he lived with the decedent and his wife as a child, through high school, and that his grandparents treated him like a son. William had regular contact with the decedent until the decedent relocated to North Carolina with Frank in 2006. With regard to the decedent’s cognitive ability during the relevant time period, William testified that “he had his good days… and his bad days.” For several days after Alfred Jr.’s suicide and until Frank arrived from North Carolina, William stayed at the decedent’s home. According to William, the decedent was inconsolable, but understood the situation and was able to communicate and tell William what was on his mind.

According to Frank’s testimony, when he arrived at the decedent’s home after Alfred Jr.’s death, the decedent only required assistance with meals and bill-paying, mainly because these had been tasks that his deceased wife had always performed. According to Frank, the decedent blamed Alfred Jr.’s estranged wife and children for the suicide.

Frank’s wife testified that the decedent was distraught over Alfred Jr.’s death, but that she was able to have productive conversations with the decedent during this time period.

When he relocated to North Carolina, the decedent lived in an apartment across from Frank’s house. After his move, the decedent and Frank’s wife became close, and did chores and household projects together. According to Frank’s wife, although the decedent could carry on conversations “most of the time,” there were times when he became confused, and the confusion could last for hours or days. There were also periods where he was lucid for days. In May 2007, Frank’s wife took the decedent to a doctor because of concerns about his weight and frailty. The doctor believed that the decedent had Alzheimer’s disease and, although the decedent did not undergo cognitive testing, he began taking medication to slow the progression of symptoms. Frank and his wife testified that the decedent began a physical and mental decline in 2009. He died in 2011.

After considering the testimony of the witnesses, the trial judge concluded that they were all credible, and that plaintiffs had failed to prove undue influence or lack of testamentary capacity at the time of the 2007 Will.

The Appellate Division agreed. It set forth the legal standard for claiming undue influence: it is the contestant’s burden to prove, and it must be proven by clear and convincing evidence. The trial court had accepted Frank’s testimony that the decedent blamed Alfred Jr.’s estranged wife and children for Alfred Jr.’s death, given their tumultuous marriage, and found that this explanation was supported by the fact that Alfred’s children had no contact with the decedent after their father’s suicide. The appellate court found that the evidence amply supported this conclusion.

As to the issue of testamentary capacity, the appeals court noted that the contestants of a Will must rebut the presumption that the testator was of sound mind and competent at the time of the Will execution. The presumption must be rebutted by clear and convincing evidence. The trial judge had relied upon the testimony of the attorney who drafted the Will, who testified that he met with the decedent two weeks after Alfred Jr.’s suicide, and that they personally discussed the decedent’s plans for the disposition of his estate. Over the next six weeks, the attorney sent drafts of the Will for review, and this period of time permitted the decedent to recover from his son’s suicide, and to reflect upon his estate plans. The trial judge concluded that, although the decedent suffered from dementia and had good days and bad days, he had sufficient capacity to execute the 2007 Will. The appellate court agreed:

A person who may at times lack testamentary capacity may be deemed capable of executing an enforceable Will if they have “lucid intervals.”

The trial court’s decision was affirmed.

A copy of In the Matter of the Estate of Finocchiaro can be found here – In the Matter of the Estate of Finocchiaro

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