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In re Probate of the Last Will and Testament of Catelli

July 1, 2003

IN THE MATTER OF THE PROBATE OF THE LAST WILL AND TESTAMENT OF ANNA VILLONE CATELLI,
THOMAS R. VILLONE, EXECUTOR OF THE ESTATE OF ANNA ROSE CATELLI AND TRUSTEE OF THE ANNA ROSE CATELLI TRUST, AND THOMAS R. VILLONE, INDIVIDUALLY, PLAINTIFFS-APPELLANTS,
v.
GEORGE G. VILLONE AND EXCELSIOR REALTY, LTD., DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Chancery Division, Probate Part, Morris County, C-71-99.

Before Judges Pressler, Ciancia and Hoens.

The opinion of the court was delivered by: Hoens, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued January 22, 2003

Thomas R. Villone was named by his elderly aunt, Anna Villone Catelli, as the executor in a will and as the trustee under a living trust which she executed on January 9, 1996. He appeals from the decision of the Chancery Division which refused to admit that 1996 will to probate, which named his cousin, George Villone, as the Administrator C.T.A. of Catelli's estate, which ordered him to restore assets to the estate, which awarded counsel fees and which dismissed a related complaint that he had filed in his effort to enforce certain provisions of the 1996 trust.

The decision of the trial court was made following two days of testimony and the consideration by the court of deposition testimony given by witnesses, including Thomas Villone, who could not appear in New Jersey. In that decision, the court first held that, as a matter of public policy, the will could not be admitted to probate because at the time of the execution of the 1996 will, Anna Catelli had become blind and the only person who could verify that the contents of the documents had been read to her so that she knew what she was signing was Thomas, who the disputed documents made her sole heir. As an alternate ground, the judge analyzed the testimony and the evidence in the nature of an application for a directed verdict at the close of the plaintiff's case and determined that Thomas Villone could not prevail on the merits. Because we affirm the decision of the court based upon the alternate ground, we do not address the court's public policy rationale.

Viewed in the light most favorable to Thomas Villone, the record discloses the following facts. The testator, Anna Catelli, was a widow who had no children and who lived alone. She had a number of nieces and nephews, including Thomas Villone and George Villone. She also had a brother, Robert, who died in Florida in 1994. Robert had named Thomas, his nephew, as the executor and principal beneficiary of his estate. Thomas, who was a self-employed long distance truck driver living in Arizona, had not had much contact with Anna Catelli, but telephoned to tell her of her brother's death. In that conversation, Catelli had asked him to come and visit her when he was next in New Jersey and he thereafter did so.

Early in 1994, while Thomas was visiting her at her home, then in Springfield, Catelli asked him to drive her to her lawyer's office in Maplewood which he did. He learned that day that Catelli had named him as her alternate power of attorney in the event that her long-time physician and confidante, Dr. Coppola, was unable to serve. While he was not aware of it at the time, she had gone to the lawyer's office that day to execute a will that left her estate to a variety of relatives and friends and to two churches and which included him as one of the residuary beneficiaries. Later that year, Catelli suffered a significant stroke which left her partially paralyzed and with limited powers of speech and sight. She was moved by Dr. Coppola to a nursing home, and thereafter to the Garden Terrace Nursing Home where she remained until her death. Thomas visited her at the nursing home from time to time when he was in New Jersey. Shortly before Thanksgiving 1995, Dr. Coppola telephoned Thomas and told him that Catelli wanted to make him her sole heir. Dr. Coppola died two or three days later.

Following Dr. Coppola's death, Thomas invoked the power of attorney to make $10,000 gifts to himself, his wife and his daughter. He next received from Dr. Coppola's son all of the papers relating to Catelli's assets. While Thomas then knew that the designation of him as the sole heir was a departure from her earlier will, he did not discuss this apparent change of plans with Catelli. Rather, he immediately consulted an attorney in Arizona who prepared a living trust, which named Thomas as the trustee, and a pour-over will which named Thomas as the executor and sole heir. The Arizona attorney gave the documents to Thomas along with a letter which instructed him to have the documents reviewed by a New Jersey attorney and which suggested that Anna be represented by independent counsel. Thomas then came to New Jersey, arriving on January 6, 1996. While Thomas knew that Catelli had been represented in the past by the lawyer in Maplewood, he did not contact him and did not consult with any other New Jersey lawyer. Instead, he went directly to the nursing home and visited with Catelli.

Over the course of the next three days, while she remained in her bed and dozed on and off, he read the documents to her. Thomas has a high school education and concedes that he would not have been able to explain or interpret any of the language of the trust or the will to Catelli. He was aware that the trust and the will together would enable him to avoid probate, but he did not understand why that might be advantageous. At no time did he suggest that Catelli consult with an attorney or offer to contact her New Jersey lawyer for her.

After three days, Thomas made arrangements with the administrator of the nursing home to execute the trust and the will. The administrator served as a notary and two nurses observed Catelli place an"X" on the line Thomas indicated. Shortly after the execution, Thomas gave up his truck driving job, employed himself as the full-time manager of Catelli's assets and undertook to gain control of Catelli's interest in Excelsior Realty Ltd. (Excelsior), a family real estate venture, through the trust instrument. Prior to Catelli's death, Thomas' efforts to gain control of her interest in Excelsior consisted of correspondence with his cousin George Villone who was the General Partner of that venture. George Villone refused to acknowledge the validity of the January 9, 1996 trust agreement and refused to turn control of Catelli's interest in Excelsior over to Thomas. He continued to refuse after Catelli's death on July 5, 1997. As a result, in March 1999, Thomas instituted litigation, in his capacity as the executor of Catelli's estate and as her heir, against George Villone and Excelsior to force a transfer of Catelli's interest to him. That complaint was consolidated with the action filed subsequently by Thomas in the Chancery Division, Probate Part seeking to have the disputed will admitted to probate.

The judge elected to first receive evidence relating to whether the 1996 will should be admitted to probate. At the close of the evidence offered in favor of the admission of the will, the trial court held, first, that Thomas Villone had failed to demonstrate that Catelli knew the contents of the documents that she had signed. Relying on Harris v. Vanderveer's Executor, 21 N.J. Eq. 561, 563 (E. & A. 1870), Hildreth v. Marshall, 51 N.J. Eq. 241, 250 (Prerog. Ct. 1893) and Day v. Day, 3 N.J. Eq. 549, 553-55 (Prerog. Ct. 1831), the judge rejected the will. While each of these decisions includes a discussion of the effect of visual impairment on the knowing execution of a will, each of them arose in the context of a dispute based on allegations of undue influence. Thus, while each of these precedents rejected a proffered will executed by a testator with a significant visual or other impairment, none requires proof of knowing execution beyond that specified by the statute. N.J.S.A. 3B:3-2; N.J.S.A. 3B:3-4. The judge, however, reasoned that although the will had been executed in accordance with the statutory formalities, public policy demands proof beyond compliance with the formalities of execution if the testator can no longer see. He held that the will was invalid because there was no evidence from anyone other than the sole beneficiary that the will had been read to Catelli and that she knew what she was signing. He therefore created an additional requirement for probate of a will executed by a visually impaired person, citing public policy.

We appreciate the trial judge's concern that a testatrix with a severe visual impairment is ordinarily unable, without the intervention of a neutral person, to determine if the will as drafted accurately memorializes her testamentary instructions. The same, of course, is true of a testator who cannot read by reason of illiteracy. But whether the statutory provisions for the witnessing and execution of the wills of such testators should be augmented to require that the pre-execution reading of the will to the testator be by a disinterested person is, in our view, a matter within the province of the Legislature. We are satisfied, at least in this case, that we need not further consider that issue because, as the judge found, this record speaks so clearly of undue influence.

The trial judge addressed the alternate ground of undue influence using the standard of a directed verdict at the close of plaintiff's proofs. R. 4:37-2(b). He found that there was a confidential relationship between the decedent and the beneficiary, that there were suspicious circumstances surrounding the execution, that undue influence was therefore presumed, that the burden to overcome the presumption therefore shifted to Thomas and that the record before the court made it impossible for him to carry that burden. He therefore refused to admit the will to probate, dismissed the complaint against George Villone and Excelsior, admitted Catelli's 1994 will to probate, appointed George Villone as the Administrator ...


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