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Cantarelli v. Grisso

Supreme Court of Appeals of West Virginia

January 13, 2020

Richard Vincent Cantarelli, Plaintiff Below, Petitioner
v.
Myra Jan Grisso, Defendant Below, Respondent

          Harrison County 16-C-255

          MEMORANDUM DECISION

         Petitioner Richard Vincent Cantarelli, by counsel Stephen A. Wickland, appeals the Circuit Court of Harrison County's August 29, 2018, order denying his motion to alter or amend the court's grant of summary judgment in respondent's favor on his tortious interference with a testamentary bequest claim and attempt to set aside his mother's will. Respondent Myra Jan Grisso, by counsel Daniel C. Cooper and Jamison H. Cooper, filed a response, and petitioner filed a reply.

         This Court has considered the parties' briefs and the record on appeal. The facts and legal arguments are adequately presented, and the decisional process would not be significantly aided by oral argument. Upon consideration of the standard of review, the briefs, and the record presented, the Court finds no substantial question of law and no prejudicial error. For these reasons, a memorandum decision affirming the circuit court's order is appropriate under Rule 21 of the Rules of Appellate Procedure.

         In March or April of 2016, respondent contacted Scott Wilson, an attorney, regarding obtaining a new will for her mother (the "decedent"). The decedent last executed a will in 1990 that provided that the parties, the decedent's children, would share equally in the decedent's estate; however, because petitioner previously received the family dental business, the decedent wished to leave respondent her home. Despite respondent's protestations that such an arrangement was "not going to work" and her attempts to "talk [her] mother out of it," the decedent insisted.

         After the initial phone call with Mr. Wilson, respondent went to his office on April 19, 2016, to further discuss preparation of the new will. The decedent was unable to accompany respondent, however, due to her physically frail state. Mr. Wilson's first draft divided the decedent's estate equally between the parties, but when respondent took this draft to the decedent, the decedent reiterated that because petitioner received the business, respondent was to receive the home. Accordingly, Mr. Wilson prepared a second draft leaving the decedent's home to respondent.

         After preparing the second draft, Mr. Wilson informed respondent that he needed to meet with the decedent. Mr. Wilson said to respondent, "you know, I don't want you there. I don't want to have any situation where, you know, that you're there sitting, trying to influence anything that she does." Therefore, respondent was not present during Mr. Wilson's meeting with the decedent. During that meeting, on April 29, 2016, Mr. Wilson and the decedent "chit-chatted a little bit," and then Mr. Wilson discussed "all of the provisions in the will" to "ascertain that [the decedent] was aware of what we were doing." Mr. Wilson stated that he met with the decedent for "at least an hour to go through everything." When Mr. Wilson and the decedent reached the provision in the will regarding the residence, Mr. Wilson recounted to the decedent that his first draft divided the estate equally, but that his later understanding was that the decedent wished to leave her home to respondent exclusively. Mr. Wilson stated that the decedent "more than once, said, 'Yes, I want [respondent] to get the house. [Petitioner] got the business, I want [respondent] to get the house.'" Although Mr. Wilson informed the decedent that "this is going to cause some problems . . . from what [respondent] has indicated to me," the decedent was insistent: "He [petitioner] got the business, I want her [respondent] to get the house." Accordingly, the decedent executed the will, and Mary Jo Strugarek and Sharon Morgan, two of the decedent's caretakers, witnessed the will's execution.

         Mr. Wilson, who has prepared between two hundred and four hundred wills over his forty-two years of practice, believed the decedent to be of "sound and disposing memory. I thought she understood what she was wanting to do. . . . [S]he was well aware and she remembered things. And so I felt that she was mentally capable of executing a will at the time." Although the decedent was physically "very, very frail," Mr. Wilson believed that mentally "she understood what she was doing and was competent, in [his] opinion, to execute a will." Additionally, Mr. Wilson informed Ms. Strugarek and Ms. Morgan that, in witnessing the decedent's execution of the will, they were "swearing that . . . [the decedent] is of sound mind and disposing memory and over the age of [eighteen]." The caretakers indicated their willingness to sign as witnesses, and the three individuals "discussed the fact that, you know, they had been her long-time caregivers and that they felt comfortable that she was able to execute the will, that she understood what she was doing."

         Ms. Morgan cared for the decedent for approximately six months to one year prior to the decedent's death. On the date the decedent executed her will, Ms. Morgan recalled her being "alert . . . she was definitely-was alert." To Ms. Morgan, the decedent appeared able to "know what she wanted to do" and did not have difficulty voicing her desires. Ms. Morgan had previously cared for others with dementia, including some who were not of sound mind to execute a will, but she believed the decedent to be of sound mind when she executed her will. Ms. Morgan also stated that she had heard the decedent express her intention to make a new will, outside of respondent's presence: "She was going to call her lawyer and have the will changed. . . . [S]he wanted [respondent] to have the house and the stuff in there. . . . She said because her son got the business and [respondent]-she wanted [respondent] to have the house."

         Ms. Strugarek cared for the decedent for approximately one to one and a half years before the decedent's death. On the date the decedent executed her will, Ms. Strugarek recalled Mr. Wilson coming to the decedent's home with a notary. Ms. Strugarek stated that Mr. Wilson "went over the will with her" and "read it all to her," and she believed the decedent was "in her right mind" when she executed the will. Ms. Strugarek was asked, "[A]t the time that she was expressing her desires with regard to the will, she didn't seem confused to you?" Ms. Strugarek responded, "Not at all" and agreed that the decedent "seemed to know precisely what she wanted." Ms. Strugarek also recalled the decedent stating that "she wanted [respondent] to have the house. . . . She said it was only fair that [respondent] get the house because [petitioner] got the company. . . . She was strong on him-on [respondent] getting the house and him getting the company."

         The decedent passed away on June 3, 2016. On July 8, 2016, petitioner filed a complaint against respondent seeking to set aside the decedent's will.[1] Petitioner alleged that the decedent lacked testamentary capacity when she executed the will and that respondent exerted undue influence in procuring that will. Petitioner also asserted claims for tortious interference with his inheritance by respondent due to her "undue influence and duress" and breach of fiduciary duty.

         The parties filed competing motions for summary judgment. In support of his motion and, in particular, his assertion that the decedent lacked testamentary capacity, petitioner relied on a May 24, 2013, determination by Dr. Stephen Fryer that the decedent was "incapacitated" as defined by West Virginia Code § 16-30-3(1), within the Health Care Decisions Act.[2] In making this determination, Dr. Fryer listed the cause as Alzheimer's disease, indicated that the nature included "impaired cognition, poor short term memory," and stated that the duration would be for the decedent's lifetime. As a result of this incapacity, respondent was appointed as the decedent's healthcare surrogate. Petitioner also relied on other medical documents in arguing that the decedent's Alzheimer's did not improve and that her "poor reasoning and short-term memory loss continued until her death."

         On June 22, 2018, the circuit court granted respondent's motion for summary judgment, in part. The court concluded that the decedent's will was valid as she possessed testamentary capacity at the time she executed it and petitioner was unable to establish a genuine issue of material fact as to his claim of undue influence. The court supported its decision with references to Mr. Wilson's and the attesting witnesses' testimony. It further found that the "incapacity" determination for making healthcare decisions was remote in time to the execution of the will and had no bearing on a determination of testamentary capacity. Because petitioner's claim of tortious interference was predicated on respondent's alleged undue influence over the decedent, and because petitioner had produced no evidence of undue influence, the court also granted summary judgment in respondent's favor on that claim. The court, however, found that there were genuine issues of material fact regarding the remaining breach of fiduciary duty claim. The parties later resolved that claim, and it was dismissed by agreed order. The circuit court denied petitioner's motion to alter or amend its order granting respondent summary judgment on August 29, 2018, and this appeal followed.

         This Court's review of a circuit court's entry of summary judgment is de novo.[3] See Syl. Pt. 1, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994). We have instructed that "[a] motion for summary judgment should be granted only when it is clear that there is no genuine issue of fact to be tried and inquiry concerning the facts is not desirable to clarify the application of the law." Id., syl. pt. 2 (citations omitted). Further,

[s]ummary judgment is appropriate where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, such as where the nonmoving party has failed to make a sufficient showing on an essential element of the case that it has the burden to prove.

Id., syl. pt. 4.

         Petitioner asserts three assignments of error on appeal. First, he argues that the decedent lacked free agency, rendering her will invalid. "Where legal capacity is shown, and the testator acts freely, the validity of the will cannot be impeached, however unreasonable, imprudent or unaccountable, it may seem to the jury or to others." Syl. Pt. 3, Nicholas v. Kershner, 20 W.Va. 251 (1882). Petitioner maintains that the decedent's free agency was "destroyed when the beneficiary direct[ed] the preparation of" the decedent's will.

         In support, petitioner cites Vaupel v. Barr, 194 W.Va. 296, 299, 460 S.E.2d 431, 434 (1995), where this Court found no undue influence where there was "no evidence even remotely suggesting that the defendant actively procured" the will. Petitioner argues that, in contrast, respondent actively procured the decedent's will. He also cites Greer v. Vandevender, No. 16-1228, 2018 WL 798419 ( W.Va. Feb. 9, 2018)(memorandum decision), in which we found no evidence of undue influence where, at the time the deceased executed her will, she was living alone, signing her own checks, and conveying other property. The decedent here, however, was dependent on others. Lastly, petitioner distinguishes Printz v. Printz, No. 13-0495, 2014 WL 1672984 ( W.Va. Apr. 25, 2014)(memorandum decision). In that case, the attorney who prepared the deceased individuals' wills had known them for twenty years and met with them to discuss their respective wills. 2014 WL 1672984, at *1. Petitioner claims that here, on the other hand, the decedent "did not have the luxury of discussing her will with an attorney of her choice."

         When undue influence is asserted, "to avoid a will, [it] must be such as overcomes the free agency of the testator at the time of actual execution of the will." Syl. Pt. 10, in part, James v. Knotts, 227 W.Va. 65, 705 S.E.2d 572 (2010) (citation omitted). A will will not be set aside "on evidence tending to show only a possibility or ...


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