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To Hamogelo Toy Paidiou v. Estate of Papadopouli

Superior Court of Rhode Island, Newport

October 25, 2019


          For Plaintiff: Kevin B. Murphy, Esq.; Paul F. Green, Esq.

          For Defendant: Peter B. Regan, Esq.; Melissa Green, Esq.



         Before this Court for decision is the Appellant's, To Hamogelo Toy Paidiou a/k/a The Smile of the Child (TSOTC), appeal from an April 13, 2017 Order (April 13th Order) from the Probate Court of the Town of Middletown (Probate Court). The Appellee, Cynthia A. Kendall, in her capacity as Administratrix of the Estate of Matoula Papadopouli (Administratrix), timely objected. Jurisdiction is pursuant to G.L. 1956 § 33-23-1.

         I Facts and Travel

         The decedent, Matoua A. Papadopouli (Papadopouli), [1] was born in Newport, Rhode Island on January 12, 1955. (Kelemenis Aff. ¶ 4.) During Papadopouli's life, she attained her bachelor's degree from Tufts University and her master's degree in Library Sciences from the University of Rhode Island. (Appellee's Ex. 2.) Papadopouli served twenty years in the military, where she was stationed in Greece and Turkey. (Appellee's Ex. 1.) Once Papadopouli returned to the United States, she continued her work as a librarian. Id. Throughout Papadopouli's life, she had dual citizenship in the United States and Greece. (Kelemenis Aff. ¶ 4.) She also owned property in Greece and in the United States, which included property located in Rhode Island. (Revised Joint Statement of Facts ¶ 3.)[2]

         On March 27, 2001, Papadopouli executed a will (2001 Will) while she was residing at RR #2 Box 2080, Lakewood, Pennsylvania 18439. (Appellee's Ex. 3.) In the 2001 Will, Papadopouli devised her residuary estate to her three first cousins: Christina Haines, Catherine Ann Michael, and Cynthia Ann Kendall-all of whom resided in Middletown, Rhode Island. Id. Thereafter, Papadopouli moved to 115 Rolling Hill Road, Portsmouth, Rhode Island, where she made her permanent residence. However, Papadopouli continued to visit and live on Skiathos, Greece. (Kelemenis Aff. ¶ 4.)

         On October 2, 2013, Papadopouli purportedly drafted a holographic will (Holographic Will) that was drafted and executed in Skiathos, Greece. (Appellee's Ex. A.) The Holographic Will declares the following: "I Matoula Papadopouli of Alexander I inherit [sic] all my property to Hamogelo tou[3] Paidiou. ( Giannis[4] N. Kontomanis will have the right to stay living in my house in Skiathos, St. George, as long as he lives to take care of my animals." Id. The Holographic Will also bore Papadopouli's signature. Id. After Papadopouli allegedly executed the Holographic Will, she handed the Holographic Will to her close friend and attorney, Attorney Styliani Lilou (Attorney Lilou). (Kelemenis Aff. ¶ 5.) The Holographic Will sought to devise Papadopouli's Estate to Hamogelo Toy Paidiou, which is a voluntary, non-profit child welfare organization based in Athens, Greece. The Greek name, "To Hamogelo Toy Paidiou," translates into English as "The Smile of the Child." This organization has a stated purpose of protecting and promoting the rights of children. In addition, the Holographic Will sought to devise a life estate to Ioannis N. Kontomanis, a resident of Greece, who was living with Papadopouli at the time of her death. (Kelemenis Aff. ¶ 6.)

         In November of 2014, Papadopouli was admitted to Tufts Medical Center and underwent surgery, which resulted in a pathology result that diagnosed her with Stage IV brain cancer. (Appellee's Ex. 1.)[5] On October 4, 2015, Papadopouli passed away at a medical rehabilitation center in Volos, Greece. (Revised Joint Statement of Facts ¶ 8.) At the time of her death, Papadopouli was not married, left no descendants, and her parents were predeceased. Id. at 9.

         After Papadopouli's death, an Administration Petition was filed with the Probate Court, which sought the appointment of Cynthia Kendall as the Administratrix[6] of Papadopouli's Estate (Estate). (Revised Joint Statement of Facts ¶ 10.) On October 28, 2015, the Petition was granted, and Cynthia Kendall was appointed as the Administratrix of the Estate. Id. However, also after Papadopouli's death, Attorney Lilou proceeded with the necessary actions in Greece to publish Papadopouli's Holographic Will.[7] (Kelemenis Aff. ¶¶ 6-8.) In accordance with the Holographic Will, Attorney Lilou sought to institute TSOTC as the sole heir and devisee of the Estate, with the exception of the life estate granted to Ioannis N. Kontomanis. Id.

         On March 21, 2016, Papadopouli's Uncle, Charles Michael (Michael), contested the Holographic Will on grounds before the Court of First Instance at Volos (Greek Litigation). (Kelemenis Aff. ¶ 8.) Michael requested the Court of First Instance to declare the Holographic Will void asserting that the Holographic Will was not drafted by Papadopouli. Id. ¶ 9. In support, Michael presented an Expert's Handwriting Analysis which evaluates the Holographic Will. Id. The expert's analysis demonstrated that the Holographic Will was written by a third-party, and Papadopouli's purported signature was written sometime after the Holographic Will was drafted. (Appellee's Ex. 4.) Specifically, Papadopouli's signature was written "when her brain disorder had already emerged, leading to the corresponding effects on her cognitive functions." Id.

         On May 26, 2016, TSOTC filed a petition with the Probate Court requesting (1) the Administratrix to identify the assets of the Estate that are subject to administration; (2) the Administratrix to return funds that were distributed or obtained by the Estate until the final determination of the proper beneficiary; and (3) the Court to place a stay on the administration of the Estate until the disposition of the Greek Litigation. (Appellant's Ex. B.) On July 19, 2016, the Probate Court held a hearing on the petition. (Revised Joint Statement of Facts ¶ 15.) On August 30, 2016, the Probate Court entered an Order (August 30th Order), setting forth the following: (1) the Administratrix shall identify and take possession of the assets of the Estate; (2) the Administratrix shall identify any Estate asset that was distributed and take the appropriate steps to have those assets returned to the Estate; (3) there shall be no distribution of the Estate assets pending final disposition of the active will contest pending before the Court of First Instance at Volos, Greece, or until further order of this Court; and (4) the Administratrix and the Petitioner shall within 7 days each disclose to the other any information that may have regarding the decedent's assets, including all real and personal property, in the United States, Greece or elsewhere, following which, the Administratrix shall prepare and file the Estate inventory. (Appellant's Ex C.) After the August 30th Order was entered, the parties exchanged a list of assets. (Appellant's Ex. D.) The Estate assets included bank accounts at BankNewport, Stifel Bank, and ABN-AMRO. (Revised Joint Statement of Facts ¶ 17.) On February 1, 2017, TSOTC sent a letter to Stifel Bank, asserting that they were the sole devisee to the Estate and requested the bank to freeze all accounts held in the name of the Papadopouli. (Revised Joint Statement of Facts ¶ 20.)

         On February 7, 2017, the Administratrix filed a Miscellaneous Petition with the Probate Court requesting an Order granting the Administratrix full access to all of the Estate's accounts, so that the Administratrix can pay expenses related to the pendency of the will contest. TSOTC timely objected to the Administratrix's Miscellaneous Petition. In addition, TSOTC filed a Cross-Petition requesting an accounting of the Estate's expenses, a declaration that the Administratrix cannot use the assets of the estate to contest the will, and an order disgorging and requiring the return of all expenses for legal fees related to the will contest. The Administratrix responded to TSOTC's objection and objected to the Cross-Petition. On March 15, 2017, the Probate Court held a hearing on the Administratrix's Miscellaneous Petition. On April 13, 2017, the Probate Court issued the April 13th Order that mandated the following: (1) to lift the freeze on the Stifel Bank Account; (2) to use the Estate assets to pay for the fees and costs associated with the will contest which was an extension of administrative costs; and (3) requiring any additional payments to be approved by the Probate Court. TSOTC now appeals the Probate Court's April 13th Order. The Administratrix on behalf of the Estate objected.

         II Standard of Review

         Section 33-23-1 of the Rhode Island General Laws governs probate appeals, which provides the following:

"(a) Any person aggrieved by an order or decree of a probate court (hereinafter 'appellant'), may, unless provisions be made to the contrary, appeal to the superior court for the county in which the probate court is established by taking the following procedure:
"(1) Within twenty (20) days after execution of the order or decree by the probate judge, the appellant shall file, in the office of the clerk of the probate court, a claim of appeal to the superior court and a request for a certified copy of the claim and shall pay the clerk his or her fees therefor.
"(2) Within thirty (30) days after the entry of the order or decree, the appellant shall file, in the superior court, a certified copy of the claim and the reasons of appeal specifically stated, to which reasons the appellant shall be restricted, unless, for cause shown, and with or without terms, the superior court shall allow amendments and additions thereto.
"(3) The appellant shall file with the probate clerk an affidavit in proof of the filing and docketing of the probate appeal pursuant to the time deadlines set forth in subdivision (a)(2)." Section 33-23-1(a).

         When reviewing a probate appeal, "the [S]uperior [C]ourt is not a court of review of assigned errors of the probate judge, but is rather a court for retrial of the case de novo." In re Estate of Paroda, 845 A.2d 1012, 1017 (R.I. 2004) (citing Malinou v. McCarthy, 98 R.I. 189, 192, 200 A.2d 578, 579 (1964)); see also § 33-23-1(b). Furthermore, "the findings of fact and/or decisions of the probate court may be given as much weight and deference as the superior court deems appropriate, however, the superior court shall not be bound by any such findings or decisions." Section 33-23-1(b).

         III Discussion

         A ...

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