Decedent, Adjudicated An Incompetent Two Months After Will Was Executed, Lacked Testamentary Capacity
In the estate litigation case of In The Matter, of Estate of Crisconi-Gallo, PICS No. 15-1464 (C.P. Philadelphia, July 8, 2015) the Honorable Matthew D. Carafiello ruled that because decedent lacked testamentary capacity at the time a document offered for probate was drafted, the document was void.
Anna Crisconi-Gallo died in Rome, Italy on March 20, 2013 at the age of 88. She was survived by her siblings who reside in Italy and her step-sons who reside in Philadelphia.
A document dated Sept. 11, 2011 was offered for probate by appellant Anthony Gallo, one of Cirsconi-Gallo’s step-sons, an attorney and the scrivener of the document. The document was drafted when Crisconi-Gallo was living in a nursing home after suffering a stroke, shortly after she was informed of the death of her only son, Dominic Crisoni. The documents prepared by Gallo were executed by Crisconi-Gallo in the presence of witnesses and a notary.
A formal caveat was filed by Joseph Rollo, Esq., counsel for Crisconi-Gallo’s intestate heirs. After a hearing, the Register of Wills issued a decree sustaining the caveat and declaring the document null and void. Letters of administration were issued to Rollo upon renunciations received from Crisconi-Gallo’s sisters, Maria, Elena and Guiliana Caporossi. Gallo appealed. Rollo, as administrator of the estate, raised the issues of lack of testamentary capacity, adjudication of incapacity and undue influence.
Following a guardianship hearing, a decree dated Nov. 15, 2011 was issued adjudicating Crisconi-Gallo incapacitated and appointing Maria Caporossi and Rollo as co-guardians of the person, and Jennifer Iacono, Esq. and Gallo as co-guardians of the estate. The court further ordered that Crisconi-Gallo be allowed to travel to Italy with the sister co-guardian, where she would be admitted into a facility approved by Dr. Bruce Silver, her treating physician. Crisconi-Gallo’s sisters had arrived from Italy with her niece, Marina Mattia, in September 2011 and they returned to Italy with Crisconi-Gallo on Nov. 16, 2011.
The will, having been properly executed, raised the presumption of testamentary capacity and lack of undue influence. Rollo, the administrator of the decedent’s estate, had the burden to prove by clear and convincing evidence lack of testamentary capacity.
The administrator relied heavily on the adjudication of Crisconi-Gallo as incapacitated by the court’s decree of Nov. 15, 2011. However, the court also evaluated the evidence of the testatrix’s condition at the time the Sept. 11, 2011 document was executed.
The contestant presented medical evidence from five days prior to the execution of the document from Crisconi-Gallo’s treating physician, the report of a geriatric psychiatrist, a mental status evaluation performed three days after the document was signed and the medical records from the nursing home.
At the time the documents were executed, Gallo, the notary and the witness did not know of Dr. Silver’s medical opinion of Crisconi-Gallo that she was not competent to make medical or other decisions. His medical opinion was confirmed by the mental status evaluation.
Crisconi-Gallo’s niece testified regarding Crisconi-Gallo’s family in Italy and recalled her aunt coming to Rome at least once a year to visit for a month. She spoke regularly to Crisconi-Gallo prior to the March 2011 stroke and spoke once a week with her son after that time.
Gallo did not have a close relationship with his step-mother and was unaware for a time that she had been hospitalized due to the stroke and that she was in a nursing home. He did not know that she had living relatives in Italy.
The court found that the presumption of testamentary capacity was overcome. The medical testimony, coupled with Mattia’s testimony, presented clear and convincing evidence that at the time of execution of the document on Sept. 11, 2011, Crisconi-Gallo lacked testamentary capacity.
Reference: Digest of Recent Opinions, Pennsylvania Law Weekly, 38PLW914 (September 29, 2015)
Filed Under: Wills; Testamentary Capacity, Competency
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