The Worst Case Scenario … (part 3)

We’ve come to the finale of our worst case scenario of undue influence. One case, from Massachusetts in the early 1990’s that was in actuality a step by step guide on how it happens and how it is handled in the courts.

We pick up this week with Lawrence’s death in late 1993. His live-in ‘caretaker’ Romano Pagliarani handled the funeral arraignments, stayed in his rooms in Lawrence’s apartment, in the apartment building in Boston’s North End that Lawrence had owned for decades.

A few weeks later Pagliarani filed Lawrence’s will with the Boston Probate Court. The will he executed in 1992, renouncing the will he had executed in 1988. The new will left everything to Lawrence’s loyal caretaker of three years, Pagliarani. Nowhere did it even mention Lawrence’s lifelong friends – Rita, who had known him since 1955 and taken care of his siblings as they aged; Teresa Antonelli who had lived in his building for ages and dropped in all the time; Mary Bergazzi, a nun,who visited, hung out, and handled all his financial affairs; his neighborhood attorney who had handled the estates of Lawrence’s siblings and did all the legal work necessary for the apartment building; Rena Bucchino who lived around the corner and visited Lawrence regularly for over twenty years.

All out of the new will. The ‘old’ will had left the apartment building to Rita and set up a life estate in a very nice apartment for Teresa, and mentioned everyone else, Lawrence’s neighborhood family of years were all left something. The will submitted to the Probate Court mentioned only Romano Pagliarani.

In 1993 in Massachusetts’ Probate Court if you wished to challenge a will the burden of proof was on you and you alone. You could challenge the will but it was up to you to prove that it was executed under undue influence. You had to prove everything. A very tough haul.

In the Matter of the Estate of Lawrence Moretti, testimony lasted sixteen days. The final trial memorandum was 50 pages long. Aside all the facts we relayed in Parts One and Two the following came out:

  • Pagliarani ‘shopped’ for lawyers for months. Looking for someone to change Lawrence’s will without actually talking much with Lawrence. Hence Pagliarani ‘interpreting’ for Lawrence – speaking to him in Italian and issuing instructions in English. Despite the fact that Lawrence was born in Boston.
  • Pagliarani extensively edited and commented on all drafts of potential new wills and powers of attorney. In short, Pagliarani’s fingerprints were quite literally all over the evidence.
  • The lawyer who finally drafted the new will and power of attorney was Pagliarani’s divorce attorney, someone he had known for years. The court openly questioned whether she represented Pagliarani or Lawrence.
  • Virtually hours after being granted Power of Attorney, Pagliarani made the rounds at Lawrence’s banks. Within days, he started using those funds for his needs.

The court made note of all this and, in effect, flipped the burden of proof: “All told, we think it only reasonable that where a fiduciary not only controls the finances, but also serves as the sole gatekeeper for an elderly and dependent individual, by answering all telephone calls, opening all mail, and screening all visitors, that fiduciary should be subject to heightened scrutiny when his services extend to activities involving the preparation of a will naming him as its principal beneficiary.”

The long and short of it is this – because of cases like this almost every probate jurisdiction in the country puts the burden of proof on a fiduciary who is named beneficiary of a will while the testator is under his care.

It is a lesson for all testators, and families, and, significantly, what the good-hearted fiduciary who is legitimately being named a beneficiary should do – “The fiduciary can take precautions to ensure that proof exists that the transaction was fair and that his principal was fully informed, and he is in the best position after the transaction to explain and justify it.”