Plaintiff: Nelson F. Brinckerhoff, Esq.
Defendant: Jean A. Boulanger, Esq.
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). Jurisdiction is pursuant to chapter 23 of
title 33 of the Rhode Island General Laws.
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.
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.
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.
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
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.
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.
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,
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.
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.
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
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.
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.
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.)
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.
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.
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.
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.
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