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In re Estate of Ogrodnik

Superior Court of Rhode Island, Kent

July 18, 2019


          For Plaintiff: Nelson F. Brinckerhoff, Esq.

          For Defendant: Jean A. Boulanger, Esq.


          MCGUIRL, J.

         In this will contest, John Ogrodnik (John) appeals from the decision of the West Greenwich Probate Court to admit into probate the purported Last Will and Testament (Will) of decedent Edwin Ogrodnik (Edwin).[1] Jurisdiction is pursuant to chapter 23 of title 33 of the Rhode Island General Laws.


         Facts and Travel

         On May 13, 2014, eighty-two-year old Edwin signed a will for the first time in his life. At the time, he lived in his West Greenwich home with his forty-six-year old companion and caretaker, Metaxia Zarokostas. John is Edwin's only living child, and he has challenged the circumstances leading up to and surrounding the signing of the Will.

         In approximately the year 2000, Edwin, who was a retired divorcee at the time, met Ms. Zarokostas while she was waitressing at a diner-restaurant called the Gentleman Farmer. They struck up a friendship, and sometime in 2005, Edwin offered to house her and her two children at his home in return for her companionship and caretaking abilities. In that capacity, Ms. Zarokostas purchased groceries, cooked meals, and cleaned the house. Although she and Edwin shared the same bed, they did not have a physical relationship; rather, they were close friends with a platonic, loving relationship and, until he became too ill, they did almost everything together. Edwin told Ms. Zarokostas several times that he would take care of her after his death.

         In 2011, Edwin, Ms. Zarokostas, and Scott Chase-a cook at the diner-restaurant-entered into a business relationship whereby Ms. Zarokostas and Mr. Chase each purchased a twenty-four percent interest in the diner-restaurant, while Edwin purchased a fifty-two percent interest in same. Attorney G. John Gazerro, Jr. (Mr. Gazerro, Jr.), an attorney who had been practicing law since 1965, represented the purchasers in this transaction. Thereafter, Mr. Gazerro Jr. managed the annual report and the annual minutes for the business, and Edwin's personal accountant, Conrad R. Burns (Mr. Burns), managed the business accounts. Upon Edwin's death, Ms. Zarokostas inherited Edwin's interest in the business.

         Edwin's only child John currently lives in Florida. Before that, he lived out of state. John is the father of Edwin's only grandchild. Over the years, John regularly visited his father in Rhode Island, and Edwin also would visit John in Florida. Whenever John came to Rhode Island, he generally would stay with his mother, who was Edwin's ex-wife. The father and son frequently would go out to breakfast or watch sporting events on television during John's visits to Rhode Island. By most accounts, John and Edwin would get along very well, and there is no question that they loved one another. Edwin assured John that he would take care of him upon his death. Edwin helped John financially over the years, and in his final years, he purchased a Lincoln SUV for John. John inherited approximately $140, 000 from Edwin's bank account.

         In March 2014, Edwin spent several weeks in the hospital before being released to his home. Thereafter, various nurses from Assisted Daily Living (ADL) visited him on a weekly basis to check on his well-being. The primary nurse who visited Edwin was Susan Porter, RN.

         Mr. Burns testified that he had known Edwin for decades and that he had been preparing Edwin's taxes since the nineties. On May 5, 2014, Mr. Burns received a call from Edwin asking for help in drawing up a will. He told Mr. Burns that he planned to leave John out of the will and to put Ms. Zarokostas in the Will instead. Mr. Burns stated that Edwin previously had told him that he did not like John telling him what to do and hollering at him. He believed that this was the reason why Edwin did not want to put John in his Will.

         Mr. Burns explained to Edwin that Edwin would need an attorney, and he offered to contact Mr. Gazerro, Jr. in order to relay the information. Mr. Burns both wrote to and called Mr. Gazerro, Jr. about his conversation with Edwin. His letter stated in pertinent part:

"Edwin O'Grodnik [sic], a mutual client called me today, to advise that [he] might be going to the hospital due to a lung problem. "He expressed a strong desire to have a will prepared as soon as possible in which he wanted to remove his son, John O'Grodnik [sic] as an heir to his estate.
"He stated that he currently has no will and wants to have as his inheritor for his entire estate his current live in friend, Metaxia Zarokostas." (Letter, dated May 5, 2014.)[2]

         Shortly thereafter, Mr. Gazerro, Jr., whose practice includes the drafting and execution of wills, spoke with Edwin over the telephone regarding Edwin's wishes and intentions with respect to his proposed Will. Edwin again stated that he did not wish to leave anything in his Will to John, and instead, wished his "companion," Ms. Zarokostas, to inherit the entire residue of his estate.

         On the evening of May 12, 2014, Edwin fell in his house. Early the following morning, May 13, 2014, Ms. Zarokostas called ADL and requested that a nurse come to the house for an unscheduled visit. Later in the morning, at approximately 10:30 a.m., Mr. Gazerro, Jr. and Mr. Burns arrived at the house with the newly drafted Will. Ms. Zarokostas led the two men into the living room where Edwin was sitting in an armchair. They asked Ms. Zarokostas to leave the room so that they could have a private conversation with Edwin. Ms. Zarokostas complied with the request and went to another part of the house for the duration of the visit. She testified that she did not know why they were there.

         At that point, Mr. Gazerro, Jr. engaged Edwin in a conversation to determine the state of his mind. After some small talk, Mr. Gazerro, Jr. asked Edwin about his intentional omission of John from the Will. According to Mr. Gazerro, Jr., Edwin told him that he had become estranged from John after John had come up north and expressed interest in taking over his property. Edwin also allegedly expressed concern that his ex-wife was trying to influence John as a way to obtain more from Edwin than what she previously had received from their divorce.

         After conversing with Edwin and going over the provisions in the Will, Mr. Gazerro, Jr. was satisfied that Edwin possessed the requisite testamentary capacity to sign a Will. After Edwin read the Will, Mr. Gazerro, Jr. gave him a pad to place under the document so that he could sign the pages without having to get out of his chair. Both Mr. Gazerro, Jr. and Mr. Burns testified that they witnessed Edwin initial and sign the Will in their presence. The two men left the house at approximately 11:30 a.m., and shortly thereafter, they signed a "self-proving" Affidavit attesting to having witnessed Edwin's signing of the Will.

         Not long afterwards, Nurse Porter arrived at the house to perform an evaluation on Edwin. She determined that Edwin seemed a little confused and was unable to answer simple medical questions; however, she described him as being oriented as to time, place, and person. Nurse Porter noted that Edwin was suffering from fluid retention and that his fingertips were twitching; however, he did have function in his hands, which were not swollen. At 12:22 p.m., she placed a non-emergency call for an ambulance to transport Edwin to Kent Hospital. Edwin signed Nurse Porter's report.

         Witness statements from the Emergency Medical Technicians (EMTs) were submitted into the record by agreement. Rescue Lieutenant Christopher Connors stated that Edwin had fluid build-up in his hands, legs, and feet, and that although he seemed slightly confused, he "kinda had his whits [sic] about him." (Cristopher Connors' Witness Statement at 3, 4.) He also stated that he did not believe Edwin would have been physically capable of signing anything. Id. at 3. EMT Captain James Galligan stated that Edwin appeared weak and slightly confused. (James Galligan's Witness Statement at 3.)

         A subsequent medical report from the Kent Hospital described Edwin as "unable to provide clear history and is an extremely poor historian . . . ." (Final Report at 1, May 13, 2014.) Edwin remained at the hospital until he was transferred to a nursing home. He spent two days at the nursing home where he passed away on May 31, 2014.

         John came to Rhode Island soon after learning of his father's hospitalization. During this period, there was some conflict between Edwin and John. After Edwin's death, John asked Ms. Zarokostas to give him the keys to the house. Ms. Zarokostas agreed, but asked for a grace period of a few days to allow her to pack her belongings.

         Meanwhile, Ms. Zarokostas learned about the existence of the Will and sought legal advice. Her attorney informed her that she did not have to vacate the house because Edwin had left it to her in his Will. She also learned that Edwin had named her as his Executrix, and that after the payment of the estate's debts, he left the "rest, residue and remainder" of all of his assets to Ms. Zarokostas. The will specifically provided: "I have made no provision in this my Last Will and Testament for my son John Ogrodnik. My failure to make any provision for my said son is intentional and not occasioned by any accident or mistake on my part." (Will ¶ 3.) However, although Edwin did not make any provisions for John in his Will, John did receive approximately $140, 000 from Edwin's bank account. Ms. Zarokostas denies any prior knowledge of the Will or its contents. John also said he was unaware of the Will. The principal asset in the estate was Edwin's house and several cabins located on the same property.

         Thereafter, on behalf of Edwin's Estate, Ms. Zarokostas filed a petition with the Probate Court for the Town of West Greenwich to probate the purported Will. John duly objected on grounds that the signature was not Edwin's; that Edwin lacked testamentary capacity at the time; and that he had been unduly influenced by Ms. Zarokostas. The Probate Court of the Town of West Greenwich conducted a hearing on the matter on September 28, 2015, and October 2, 2015.

         At the hearing, John presented Jean Joanne Berrie-Perrino, a board certified forensic document examiner who opined that the signature on the Will was not genuine because it did not match numerous samples of Edwin's signature that she had in her possession. Ms. Berrie-Perrino did not testify before ...

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