NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
23-P-1393
CARMELA CURLEY & another1
vs.
FABIANA TERNULLO.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Carmela Curley and John Ternullo appeal from a decree and
order of the Probate and Family Court on the petition of Fabiana
Ternullo admitting the will of Domenico Ternullo (decedent) to
formal probate, as well as a judgment denying Carmela and John's
equity complaint against Fabiana.2 Carmela and John argue that
the judge erred in denying their motion for recusal and in
allowing summary judgment in favor of Fabiana on the issue of
the decedent's testamentary capacity. They also argue that the
judge's finding that the deed, will, and powers of attorney were
1 John Ternullo.
2Because two of the parties share a last name, we refer to all parties by their first names to avoid confusion. not the product of undue influence was clearly erroneous. We
affirm.
Background. The decedent died on August 30, 2019, at age
sixty-seven. He was survived by his wife, Fabiana; their minor
son, Domenico Ternullo, Jr. ("Mimmo"); and his two children from
a prior marriage, Carmela and John. Before marrying in 2006,
the decedent and Fabiana executed a prenuptial agreement, under
which Fabiana disclaimed any intestate share of the decedent's
estate. However, the prenuptial agreement allowed the decedent
to provide for Fabiana by a will. After he and Fabiana married,
the decedent purchased a home and took title in his name alone.3
The couple lived there with their son Mimmo, who was born in
2007, until the decedent's death.
In January 2019, the decedent was diagnosed with
mesothelioma. In April 2019, Fabiana had dinner with Attorney
Myra Lyons, who had represented the decedent in the preparation
of the couple's prenuptial agreement and assisted him with
various legal matters. At that dinner, Attorney Lyons asked
Fabiana if the decedent had an estate plan, and Fabiana told her
that he did not. Attorney Lyons later helped the decedent with
some legal matters in July and August of 2019. On August 27,
3 In 2013, the decedent reconveyed the property to himself, and again took title solely in his name.
2 2019, the decedent was hospitalized for the final time. After
Attorney Lyons learned of the decedent's hospitalization, she
prepared a deed conveying title to the couple's residence to
Fabiana. "Neither Fabiana nor the [d]ecedent asked her to
prepare a deed." However, Attorney Lyons believed that the
decedent did not have an estate plan and thought he might "want
to take care of [it]."
On August 28, 2019, Attorney Lyons and her husband visited
the decedent in the hospital. After asking Fabiana to leave the
room, Attorney Lyons told the decedent that "she had prepared a
deed and asked what he wanted to do." The decedent told her
that he wanted to "take care of Fabiana and Mimmo," and leave
everything to them. He confirmed that he understood what he was
signing and that no one had told him what to do, and he signed
the deed with Attorney Lyons, her husband, and Mimmo in the
room. Attorney Lyons also asked the decedent about a trust that
he had previously established, and he told her to "leave it
alone."4 Attorney Lyons left the hospital and prepared a will
and two copies of a power of attorney.
On August 29, 2019, Attorney Lyons returned to the hospital
with the prepared will and powers of attorney. Michael Lyle and
4 The decedent created the trust in 1999. Carmela and John each hold a beneficial interest in the trust.
3 William Vinci, longtime friends of the decedent, were present to
witness the execution of the documents. During the visit, which
lasted approximately an hour, the decedent answered questions,
appeared alert, and remembered having signed the deed the day
before. Attorney Lyons explained that the will "left everything
to Fabiana other than the [t]rust, and the [d]ecedent said that
was what he wanted." Attorney Lyons also explained the powers
of attorney. The decedent stated that he understood, and he
"repeated several times" that he wanted to take care of Fabiana
and Mimmo. The decedent signed the will and the two copies of
the power of attorney.5
Following the decedent's death, on October 16, 2019,
Carmela and John filed an equity complaint in the Probate and
Family Court seeking recission of the deed conveying the
residence to Fabiana based on lack of capacity and undue
influence.6 On March 6, 2020, Fabiana filed a petition for
formal probate of the decedent's will and requested to be
appointed as the personal representative.7 On July 9, 2020,
5 On August 29, 2019, using a power of attorney that the decedent signed that day, Fabiana withdrew money from the decedent's bank accounts and transferred it to her own account.
6 The complaint also alleged interference with expectancy and unjust enrichment.
7 On June 2, 2020, a Probate and Family Court judge entered a decree and order admitting the decedent's will to formal probate and appointing Fabiana as the personal representative.
4 Carmela and John filed affidavits of objection on grounds that
the decedent lacked testamentary capacity to execute the will
and that the will was the product of undue influence. The
equity complaint and the petition for probate were then
consolidated. On February 10, 2021, Carmela and John amended
their equity complaint to add counts seeking recission of the
power of attorney instrument and recission of actions taken
under that instrument by Fabiana.
On August 10, 2021, Fabiana filed motions for summary
judgment, seeking to have Carmela and John's equity complaint
dismissed and to admit the will to probate. On November 12,
2021, Carmela and John moved to recuse the judge. After a
hearing, the Probate and Family Court judge denied the motion
for recusal and granted partial summary judgment in favor of
Fabiana on the issue of the decedent's testamentary capacity to
execute the deed, will, and powers of attorney. The judge
denied summary judgment on the issues of undue influence and
unjust enrichment, and dismissed the claim of interference with
expectancy. After a four-day trial, the judge concluded that
the deed, will, and powers of attorney were not procured through
On June 18, 2020, Carmela and John filed a motion seeking an extension of time to file their objections to the petition and asked the court to vacate the decree. The judge allowed their motion and vacated the decree.
5 undue influence by Fabiana.8 The judge further denied Carmela
and John's request to rescind the actions taken under the powers
of attorney, struck their objections to the will, and admitted
the will to formal probate. This appeal followed.
Discussion. 1. Motion for recusal. Carmela and John
argue that the denial of their motion for recusal constituted an
abuse of discretion because the judge's "decisions and remarks"
revealed a "bias" against them and his impartiality might
reasonably be questioned due to his familiarity with Attorney
Lyons.9 This claim is unavailing.
In deciding a motion for recusal, a judge must "consult
first [his] own emotions and conscience" to ascertain whether he
is subjectively free from bias. Commonwealth v. Morgan RV
Resorts, LLC, 84 Mass. App. Ct. 1, 9 (2013), quoting Lena v.
Commonwealth, 369 Mass. 571, 575 (1976). If the judge
"subjectively believes [he] can rule impartially," he "must next
8 The judge found that the elements of unjust enrichment were not present.
9 Carmela and John argued in their motion for recusal that the case was "inappropriately pre-judged" based on the judge's "rulings and commentary" in the present action and in a related breach of fiduciary duty litigation. They pointed to, inter alia, the judge scheduling the case for trial while there were motions pending, the judge dismissing their complaint for breach of fiduciary duty on "flawed procedural grounds," and the judge's observations that they seemed to be "seeking a larger share of their late father's assets than what would be left for their minor half-brother."
6 attempt an objective appraisal of whether . . . [his]
impartiality might reasonably be questioned" (citation omitted).
Morgan RV Resorts, LLC, supra. We review a judge's decision on
a recusal motion for abuse of discretion. See Haddad v.
Gonzalez, 410 Mass. 855, 862 (1991).
Here, Carmela and John have failed to show that any alleged
bias of the judge stemmed from an extrajudicial source. See
Demoulas v. Demoulas Super Mkts., Inc., 424 Mass. 501, 524-525
(1997). The mere fact that they "suffer[ed] adverse rulings
during litigation does not establish lack of judicial
impartiality." Clark v. Clark, 47 Mass. App. Ct. 737, 739
(1999). Moreover, the judge's "familiarity" with Attorney Lyons
arose from his judicial role, which is a factor that "weighs
heavily in favor of the judge's decision not to disqualify
himself" (citation omitted). Haddad, 410 Mass. at 862. While
Attorney Lyons was a witness in the case, Carmela and John
offered no evidence, and made no proffer to suggest, that the
judge had any relationship with her beyond her appearing before
him in other proceedings. On the record before us, we cannot
say that the judge made "a clear error of judgment in weighing
the factors relevant to the decision such that the decision
falls outside the range of reasonable alternatives" (quotation
and citation omitted). L.L. v. Commonwealth, 470 Mass. 169, 185
n.27 (2014).
7 2. Testamentary capacity. Carmela and John contend that
the judge improperly entered summary judgment in favor of
Fabiana on the issue of the decedent's testamentary capacity to
execute the deed, will, and powers of attorney because there
were material facts in dispute. We disagree.
We review a grant of summary judgment de novo to determine
whether, "viewing the evidence in the light most favorable to
the nonmoving party, all material facts have been established
and the moving party is entitled to judgment as a matter of law"
(citation omitted). Casseus v. Eastern Bus Co., 478 Mass. 786,
792 (2018). "While we examine the record in its light most
favorable to the nonmoving party . . . '[c]onclusory statements,
general denials, and factual allegations not based on personal
knowledge [are] insufficient to avoid summary judgment.'"
O'Rourke v. Hunter, 446 Mass. 814, 821 (2006), quoting Cullen
Enters., Inc. v. Massachusetts Prop. Ins. Underwriting Ass'n,
399 Mass. 886, 890 (1987).
"At the time of executing a will, the [testator] must be
free from delusion and understand the purpose of the will, the
nature of [his] property, and the persons who could claim it."
O'Rourke, 446 Mass. at 826-827. "[A] person [. . .] may possess
testamentary capacity at any given time and lack it at all other
times." Matter of the Estate of Rosen, 86 Mass. App. Ct. 793,
798 (2014), quoting O'Rourke, supra at 827. "The proponent has
8 the burden of proof on the issue of testamentary capacity"
(citation omitted). Id. "A presumption that the testator had
the requisite testamentary capacity aids the proponent, but it
disappears if the opponent presents evidence of lack of
capacity." Maimonides Sch. v. Coles, 71 Mass. App. Ct. 240, 252
(2008).10
Here, Carmela and John did not present any direct evidence
to rebut the presumption of testamentary capacity. See Haddad
v. Haddad, 99 Mass. App. Ct. 59, 69 (2021). While they claimed
that the decedent's "mental and physical condition had worsened"
by the time he was hospitalized, they offered no evidence that
he lacked testamentary capacity during the August 28, 2019
execution of the deed or the execution of the will and powers of
attorney the next day.11 Carmela and John presented evidence
that the decedent was physically dependent on others, was
receiving morphine, and had difficulty speaking due to shortness
10Carmela and John argue that the judge "improperly reversed the burden at the summary judgment stage." As discussed infra, Fabiana's submissions bolstered the presumption of testamentary capacity and "discharged [her burden as the movant] by showing that there is an absence of evidence to support the non-moving party's case." Kourouvacilis v. General Motors Corp., 410 Mass. 706, 711 (1991). Thus, we discern no error in the judge's allocation of the burden of proof.
11Indeed, the affidavit that Carmela and John cited to support their claim that the decedent's "mental and physical condition had worsened" contained no evidence of his mental or cognitive condition.
9 of breath, but they failed to present evidence or facts
connecting his physical decline to a lack of testamentary
capacity. Aside from conclusory statements about the decedent's
capacity, neither Carmela nor John attested to first-hand
observations of the decedent's mental state.
In contrast, both Attorney Lyons and the witnesses to the
execution of the will and powers of attorney perceived the
decedent to possess testamentary capacity. They attested that
the decedent was of sound mind during the execution and
described him as "lucid, alert, and awake" during their visit.
The decedent expressed his desire to take care of Fabiana and
Mimmo, answered questions, indicated that he understood what he
was signing, and instructed Attorney Lyons to leave the trust
alone. In addition to the medical records and affidavits of the
witnesses, Fabiana presented an affidavit from a medical expert
who opined that the low dose of morphine the decedent received
was "insufficient" to impact his judgment. Carmela and John's
references to areas of the medical records where the decedent
received morphine, he was fatigued, or an instance where he
experienced "confusion" do not contradict the specific and
detailed observations made by Attorney Lyons and the two
witnesses. Thus, the entry of summary judgment in favor of
Fabiana on the issue of testamentary capacity was proper.
10 3. Undue influence. Carmela and John challenge the
judge's allocation of the burden of proof on the issue of undue
influence as well as the judge's factual findings. We discuss
each in turn.
a. Burden of proof. "To prove undue influence, a
contestant must show 'that an (1) unnatural disposition has been
made (2) by a person susceptible to undue influence to the
advantage of someone (3) with an opportunity to exercise undue
influence and (4) who in fact has used that opportunity to
procure the contested disposition through improper means.'"
Maimonides Sch., 71 Mass. App. Ct. at 255-256, quoting O'Rourke,
446 Mass. at 828. "In a will contest involving allegations of
undue influence, the burden of proof ordinarily rests with the
party contesting the will." Matter of the Estate of Moretti, 69
Mass. App. Ct. 642, 651 (2007). As Carmela and John point out,
"in cases involving a fiduciary, the fiduciary who benefits in a
transaction with the person for whom [she] is a fiduciary bears
the burden of establishing that the transaction did not violate
[her] obligations" (quotation and citation omitted). Matter of
the Estate of Urban, 102 Mass. App. Ct. 284, 290 (2023).
However, "[t]he burden of proving the absence of undue influence
shifts to the fiduciary only where [she] has actually taken part
in the questioned transaction" (quotation and citation omitted).
Id.
11 Carmela and John argue that the judge erred in allocating
the burden of proving undue influence to them because Fabiana
was a fiduciary under the power of attorney and an "interloper"
in the decedent's attorney-client relationship with Attorney
Lyons. We disagree. There is no evidence that Fabiana "ha[d]
actually taken part in the questioned transaction" (citation
omitted). Matter of the Estate of Urban, 102 Mass. App. Ct. at
290. Fabiana was not present during the execution of the deed,
will, or powers of attorney, and there is no evidence that she
asked Attorney Lyons to prepare the documents or directed the
provisions of the will. Moreover, as further discussed below,
the record supports the judge's findings that Attorney Lyons
provided independent counsel to the decedent, and that Fabiana
neither asked Attorney Lyons to have the will or deed executed
nor directed her regarding the provisions of the will.
b. Factual findings. Carmela and John challenge the
judge's findings of fact underlying his conclusion that the
decedent was not subject to undue influence by Fabiana. We
review the judge's findings of fact for clear error. See
Demoulas, 424 Mass. at 509. "A finding is clearly erroneous
only when, although there is evidence to support it, the
reviewing court on the entire evidence is left with the definite
and firm conviction that a mistake has been committed"
(quotations and citation omitted). Id.
12 First, we discern no clear error in the judge's finding
that the disposition was not unnatural. "A testamentary
disposition is not 'unnatural' simply because it favors certain
members of the testator's immediate family over others."
Rostanzo v. Rostanzo, 73 Mass. App. Ct. 588, 605 (2009). Given
that the decedent and Fabiana were married for thirteen years
and had a minor child, it was not unnatural for the decedent to
leave his assets to Fabiana to provide for them both. See
O'Rourke, 446 Mass. at 828 (nothing "inherently unnatural" about
disposition benefitting some children and not others). Nor does
the fact that the decedent kept his finances separate make the
disposition unnatural. See Tetrault v. Mahoney, Hawkes &
Goldings, 425 Mass. 456, 465 n.11 (1997) (disposition "is not
made unnatural merely by showing that the wife and the testator
kept separate finances"). In addition, the decedent still
provided for Carmela and John through the trust, which remained
unchanged. Based on these circumstances, the judge properly
concluded that the disposition of assets to Fabiana was not
unnatural.
Second, the record supports the findings that the decedent
was not susceptible to undue influence and that Fabiana did not
have an opportunity to exercise undue influence. The decedent
was not isolated during his final hospitalization and had
13 numerous visitors, including Carmela and John.12 Compare Matter
of the Estate of Moretti, 69 Mass. App. Ct. at 655 (overwhelming
evidence of undue influence, including that decedent was
isolated from his "long-time friends and advisers"). Further,
although the decedent was dependent on others and asked Fabiana
to speak on his behalf during his final hospital stay, she was
not present during the execution of the deed, will, or powers of
attorney, and did not discuss estate planning with the decedent
before or during his hospitalization.
Finally, Carmela and John argue that the judge erred in
finding that there was no evidence that Fabiana had procured the
deed, will, or powers of attorney. This is so, they contend,
because "it is clear from the record that Attorney Lyons acted
based on representations from Fabiana." Contrary to this
argument, the record supports the judge's finding. The judge
credited Attorney Lyons's testimony that she prepared the deed,
will, and powers of attorney without any involvement from
Fabiana and that she prepared the will and powers of attorney
after speaking with the decedent. The judge also did not err in
finding that Attorney Lyons provided independent counsel to the
decedent and did not have a relationship with Fabiana other than
12John described the hospital as a "circus" when he arrived there on August 29, 2019, due to the amount of people there to visit the decedent.
14 knowing her as the decedent's wife. Furthermore, the judge
found that Fabiana testified credibly that she did not procure
the deed, will, or powers of attorney, and although Fabiana
acknowledged concern about the absence of a will, "she did not
discuss this with the [d]ecedent." The trial evidence supports
the judge's findings and thus, we discern no error.13
Conclusion. For the foregoing reasons, we affirm the
decree admitting the decedent's will to formal probate and the
judgment on Carmela and John's equity complaint.14
Judgment affirmed.
Decree and order on petition for formal adjudication affirmed.
By the Court (Neyman, Singh & Toone, JJ.15),
Clerk
Entered: January 17, 2025.
13We recognize that the parties presented competing testimony and evidence at trial, and do not imply that the arguments made by Carmela and John are without a measure of persuasiveness. We hold only that the judge's findings of fact and conclusions of law are supported by the record.
14 Fabiana's request for attorney's fees and costs is denied.
15 The panelists are listed in order of seniority.