In re Estate of Moretti, 06-P-1722.

• Citation: 69 Mass. App. Ct. 642,871 N.E.2d 493
• Decision Date: 01 August 2007
• Docket Number: No. 06-P-1722.,06-P-1722.
• Parties: In The Matter of The ESTATE OF Lawrence MORETTI.
• Court: Appeals Court of Massachusetts

871 N.E.2d 493 69 Mass. App. Ct. 642 In The Matter of The ESTATE OF Lawrence MORETTI. No. 06-P-1722. Appeals Court of Massachusetts, Suffolk. Argued March 7, 2007. Decided August 1, 2007.

[871 N.E.2d 494]

Donna M. Evans, Boston (Breton T. Leone-Quick with her) for Romano Pagliarani.

Robert J. O'Regan, Boston (Diane A.D. Noel with him) for Rita Casoni.

Jay W. Pearlman, of New York, for Teresa Antonelli, was present but did not argue.

Present: BERRY, SMITH, & DOERFER, JJ.

BERRY, J.

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This appeal involves application of the rule set forth in Cleary v. Cleary, 427 Mass. 286, 692 N.E.2d 955 (1998), and Rempelakis v. Russell, 65 Mass.App.Ct. 557, 842 N.E.2d 970 (2006), which shifts the burden to a fiduciary to prove the absence of undue influence in a challenge to a will naming the fiduciary as beneficiary. "[T]he fiduciary who benefits in a transaction with the person for whom he is a fiduciary bears the burden of establishing that the transaction did not violate his obligations." Cleary v. Cleary, supra at 295, 692 N.E.2d 955. This special burden-shifting rule is an exception to the general rule that in a will contest based on allegations of undue influence, the burden of

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proof ordinarily rests with the party contesting the will. See Tarricone v. Cummings, 340 Mass. 758, 762, 166 N.E.2d 737 (1960).

The contention of the defendant in this appeal is that the Cleary-Rempelakis burden-shifting rule only applies in the "extraordinary" situation of a fiduciary who participated directly in the actual drafting and execution of the will and related documents of inheritance under which the fiduciary benefited. This is an overly limited reading of the Cleary-Rempelakis rule, which applies not just to the drafter of estate planning documents, but to a fiduciary utilizing his position of trust to procure a favorable estate disposition through improper means and self-dealing. Burden shifting under the Cleary-Rempelakis rule thus encompasses a will contest involving one who serves as a fiduciary under a power of attorney; was fully involved in all the undertakings relative to the revisions of the testator's will and estate plan, yielding the beneficial inheritance; and exercised unrestricted and expansive power over the testator's finances—a power, in this case, enhanced by the defendant acting as a gatekeeper, isolating the testator from longstanding close friends, and barring access by others.

Also at issue in the appeal are questions involving the engagement of legal counsel. On this point, the defendant asserts that, even if the Cleary-Rempelakis burden-shifting rule applies in determining undue influence, the representation of several lawyers who worked on the testator's estate plan lifted the defendant over his shifted burden and proved the absence of undue influence in the preparation of the will. But, to have effect on the shifted Cleary-Rempelakis burden, the intervention

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of legal counsel and measured independence must be real, not illusory; the legal representation provided must be truly independent, with the lawyer's loyalty flowing to the client testator alone.

Here, the defendant was an intruder into the relationship between the attorneys and the testator, and engaged in acts which, in effect, subverted the independence of the legal representation. For example, the defendant controlled the engagement of the attorneys, orchestrated the firing of one attorney who raised objections to the defendant's involvement in the client's estate planning, and was the moving force in hiring one successor attorney who had represented the defendant himself. Furthermore, the defendant monitored all lawyers' correspondence to the testator, reviewed will drafts, and made written comments thereon. Viewed in totality, the defendant's intrusive actions were such that the testator was not rendered real, rather than illusory, independent legal representation, and the heightened scrutiny of the bequests made to the defendant under the will did not, as the probate judge found, satisfy the Cleary-Rempelakis burden-shifting rule. Accordingly, we affirm the judgment dismissing the petition for probate of the subject will on the grounds that said will was procured by the exercise of undue influence.

1. Procedural and factual background. Romano Pagliarani appeals from the dismissal of a petition for probate of a will of Lawrence Moretti, dated December 3, 1991 (the 1991 will), in which Pagliarani was named the beneficiary of Moretti's principal asset, a six-unit apartment building. A judge of the Probate and Family Court determined that the document was the product of undue influence and ordered that a petition for probate of Moretti's will dated February 8, 1989 (the 1989 will), be admitted to probate. That earlier will left Moretti's building to Rita Casoni,

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with a life estate to Teresa Antonelli. Pagliarani challenges the judgment of dismissal, asserting error in the judge's ruling that Pagliarani bore the burden of proof at trial on the issue of undue influence. Pagliarani also challenges the judge's findings of fact regarding the independence of Moretti's legal counsel and the nature of the relationship between Moretti and Pagliarani that led to the bequest in Pagliarani's favor.

The will contest was tried over sixteen days, after which the judge issued detailed findings of fact and conclusions of law in

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a fifty-page memorandum of decision. We summarize the facts from the judge's findings, which we supplement somewhat, here and in our discussion, from the record on appeal.

Lawrence Moretti, the testator, died on June 16, 1993, at the age of eighty-two. He never married and left no close relatives. His estate included a six-unit apartment building, located at 12 North Bennet Street in the North End section of Boston. After Moretti's death, two petitions were filed in connection with his estate, one to probate the 1989 will, and the other, the 1991 will.

Moretti had owned the building with his two siblings, a brother, John, and a sister, Mary, both of whom predeceased him. Casoni met the Moretti siblings when she first came to the Boston area from Parma, Italy, in 1952, and the Casoni and Moretti families became very close. In 1977, Casoni and her husband moved into a unit in the Morettis' building, and Casoni, as well as her children and grandchildren, were regular visitors to the Moretti apartment. When John Moretti, and then Mary, became ill, Casoni cared for them until their deaths, in 1987 and 1988, respectively, at which point she assisted in their funeral arrangements and hosted receptions for the Moretti family and their friends.

By the time Moretti lost his siblings in the late 1980's, he was suffering from crippling arthritis and other ailments. When he became unable to leave his apartment, Casoni took the lead in ensuring his care. This included visiting Moretti every morning, and often again later in the day, and arranging for Antonelli to provide additional home care. Throughout this period, Moretti was assisted in his financial affairs by Mary Bergazzi, a nun and a family friend of some thirty years, to whom Moretti had granted a power of attorney.¹ Moretti also used the legal services of Thomas Schiavoni, an attorney he had met in 1985 at a neighborhood peace garden. Schiavoni performed legal work for Moretti in connection with the estates of Moretti's siblings and with rent and tenant matters in connection with the building. He also drafted the 1989 will for Moretti, which Moretti executed on February 8, 1989, and which provided, among other things, for

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the building to be left to Casoni, with a life estate to Antonelli. During this time period, Schiavoni also visited Moretti socially, stopping by Moretti's apartment with his daughter every month or so after church on Sundays. Another close friend of Moretti, Rena Bucchino, who lived around the corner from Moretti's building, had been a weekly visitor to Moretti for more than twenty years. By all accounts, up until November, 1990, Moretti enjoyed warm relationships with the members of this trusted circle, conversing comfortably with them and joking with them during their visits.

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In the summer of 1990, Casoni traveled to Italy for a month-long visit with her elderly parents. In her absence, Moretti's health deteriorated dramatically, partly the result of an acquaintance who moved into his apartment and provided him with large amounts of alcohol. Upon Casoni's return, Moretti was hospitalized, and Casoni and Schiavoni arranged for the removal of the problematic houseguest. Moretti now required full-time care, but was adamant in his wish to remain in his apartment and not enter a nursing home. Casoni and Schiavoni arranged for in-home care through a nursing service, but concern for its high cost prompted them to explore other options that would allow Moretti to remain in his home without exhausting his finances.

Casoni had become acquainted with Pagliarani though her employment as a social worker at the North End Community Health Center. She had provided counseling to Pagliarani in 1989, when he came to the center seeking help for depression. Though formal counseling ended that same year, Casoni and Pagliarani had remained in contact, and Casoni knew that Pagliarani was having financial difficulties and was unhappy with his living arrangement. In late October, 1990, Casoni and Schiavoni arranged for Pagliarani to provide overnight care to Moretti. After a time, as both Moretti and Pagliarani seemed pleased with the arrangement, Schiavoni drew up a written agreement, setting out Pagliarani's duties and salary, which Moretti and Pagliarani signed on November 18, 1990. Pursuant to that agreement, Pagliarani was permitted to live with Moretti rent-free and received a weekly stipend of $125, in exchange for providing personal...