Opinion
No. 12–P–574.
2013-03-7
Egidio FERRARA v. Olga FERRARA & another.
By the Court (GRAINGER, MEADE & MILKEY, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Egidio Ferrara, son of the decedent, Michele Ferrara, filed an affidavit of objections contesting the allowance of the decedent's last will executed on September 6, 2000, on the basis that it was procured by the undue influence of his sister, Olga Ferrara. Olga filed a motion for summary judgment on July 28, 2009, supported by an affidavit of the decedent's attorney. This was not the attorney who drafted the will, but a subsequent attorney to whom the decedent reaffirmed that his will contained the provisions he desired. Egidio opposed the motion with affidavits from himself, Olga's former husband, and a court employee, along with excerpts from depositions of Olga and their brother, Dalmazio Ferrara, and several unauthenticated court records. Rather than speaking to any specific conduct of Olga in relation to the decedent's will, the affidavits purport to describe instances of Olga's prior bad acts. The probate judge allowed Olga's motion to strike the filings of Egidio and granted summary judgment to Olga on October 22, 2009.
The judge also allowed Olga's motion for attorney's fees and awarded fees and costs in the amount of $78,202.80. Egidio timely filed notices of appeal. In addition, Egidio commenced two equity actions against Olga individually, one on August 15, 2005, and the second on August 31, 2006. Both actions sought to invalidate a deed also executed by the decedent on September 6, 2000, that transferred real property in Waltham to the Ferrara Realty Trust. Again, Egidio contended the deed was the result of Olga's undue influence, fraud, or conversion. Upon Olga's motion to dismiss for failure to properly serve the summons and complaint, a judge of the Probate and Family Court dismissed the two equity actions without prejudice by an order dated October 1, 2009, and entered on October 9, 2009.
Although Olga contends she filed a motion to strike the affidavit of objections as well, and a copy is included in the supplemental appendix, the docket does not indicate that the motion was filed or acted upon.
The docket reflects that Egidio timely filed a notice of appeal.
Counsel for Egidio conceded at trial that the two equity actions were duplicative of one another.
The record reflects that sometime after the two equity actions were dismissed, Egidio filed a new equity action which also subsequently was dismissed. The decision dismissing that action is not before us.
1. The will contest. Egidio's affidavit of objections, primarily consisting of statements of “belief,” failed to comply with Probate Court Rule 16(a) (1987).
Egidio's submissions in opposition to Olga's summary judgment motion largely focused on irrelevant and inadmissible prior bad acts of Olga and were properly stricken. In addition, substantial portions of the affidavits submitted in opposition to summary judgment contained irrelevant or conclusory assertions. See O'Rourke v. Hunter, 446 Mass. 814, 821 (2006). These were not admissible.
We note that rule 16 was amended in 2011 and no longer contains this provision. We use the version of the rule in effect at the time the case was filed.
Even were we to agree that portions of Egidio's supporting materials were admissible, the most the materials show is circumstantial evidence suggestive of undue influence by Olga, which, if properly verified and left unanswered, might have been enough to raise a genuine issue of material fact as to undue influence.
However, the decedent's attorney refuted the suggestion of undue influence in a detailed affidavit that showed she reviewed the decedent's estate plan with him after the will was executed to ensure it was consistent with his desires. The decedent “adamantly” reaffirmed to his attorney his intention to disinherit Egidio and insisted that it was his idea (and not Olga's) to do so. See Karp v. Bara, 335 Mass. 681, 685 (1957). The decedent related to his attorney that he initially was upset with Egidio for taking over his finances and forwarding all his mail to Egidio while the decedent was hospitalized. Egidio does not deny doing this or that his actions angered the decedent. Moreover, the decedent's attorney averred that the decedent's resolve to disinherit Egidio was further enhanced when Egidio commenced guardianship proceedings seeking guardianship of the decedent. The decedent opposed the guardianship, his physician attested to his competence, and Egidio ultimately voluntarily dismissed the guardianship petition.
For example, Egidio contends Olga orchestrated the drafting and execution of the decedent's will and interpreted for the decedent at some meetings with attorneys, because the decedent was not fluent in English.
In his submissions, Egidio puts forth no facts to refute the attorney's affidavit, and he essentially ignores that he commenced guardianship proceedings against the decedent and that he embarrassed and angered the decedent by doing so. His only response to the decedent's attorney's affidavit was to move to strike it as not based on personal knowledge.
We discern no merit to this claim. In addition, when considering a summary judgment motion, “[t]he motion judge does not pass on the weight or credibility of the evidence, which may be in the form of affidavits [and] depositions,” among other forms. Beatty v. NP Corp., 31 Mass.App.Ct. 606, 607 (1991). Having failed to refute the affidavit with factual assertions relevant to the decedent's reaffirmation that his will contained the provisions he desired, Egidio has failed to raise a genuine issue of material fact, and summary judgment was therefore properly granted.
Egidio also suggested that there are potential credibility issues where the attorney had been paid for her legal services to the decedent, and that she was biased against Egidio because he expressed dissatisfaction with her representation of his father.
2. The equity actions. The second equity action was duplicative of the first, and as conceded by the counsel for Eugenio, for that reason alone properly was dismissed. Moreover, while it may well be that Olga, having participated in discovery and conferences for some four years, had waived her insufficient process defense, see Raposo v. Evans, 71 Mass.App.Ct. 379, 385–386 (2008), reinstating the equity action serves no useful purpose. Having been unsuccessful in his will contest, even if Egidio could succeed in voiding the deed, the remedy he seeks is to have the property revert to the decedent's estate where it would be distributed according to the terms of the will, from which Egidio has been excluded.
The judge awarded attorney's fees to Olga in the amount of $78,202.80 pursuant to G.L. c. 231, § 6F. Egidio's appeal of that order is not before us as the appellate route is to the single justice of this court. See G.L. c. 231, § 6G; Danger Records, Inc. v. Berger, 444 Mass. 1, 14 (2005); Bailey v. Shriberg, 31 Mass.App.Ct. 277, 283 (1991).
Olga's motion for appellate costs and fees pursuant to G.L. c. 231, § 6F, and Mass.R.A.P. 25, as appearing in 376 Mass. 949 (1979), is denied.
Judgments affirmed.