CARMELA CURLEY & Another v. FABIANA TERNULLO.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

23-P-1393

CARMELA CURLEY & another1

vs.

FABIANA TERNULLO.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Carmela Curley and John Ternullo appeal from a decree and

order of the Probate and Family Court on the petition of Fabiana

Ternullo admitting the will of Domenico Ternullo (decedent) to

formal probate, as well as a judgment denying Carmela and John's

equity complaint against Fabiana.2 Carmela and John argue that

the judge erred in denying their motion for recusal and in

allowing summary judgment in favor of Fabiana on the issue of

the decedent's testamentary capacity. They also argue that the

judge's finding that the deed, will, and powers of attorney were

1 John Ternullo.

2Because two of the parties share a last name, we refer to
all parties by their first names to avoid confusion.
not the product of undue influence was clearly erroneous. We

affirm.

Background. The decedent died on August 30, 2019, at age

sixty-seven. He was survived by his wife, Fabiana; their minor

son, Domenico Ternullo, Jr. ("Mimmo"); and his two children from

a prior marriage, Carmela and John. Before marrying in 2006,

the decedent and Fabiana executed a prenuptial agreement, under

which Fabiana disclaimed any intestate share of the decedent's

estate. However, the prenuptial agreement allowed the decedent

to provide for Fabiana by a will. After he and Fabiana married,

the decedent purchased a home and took title in his name alone.3

The couple lived there with their son Mimmo, who was born in

2007, until the decedent's death.

In January 2019, the decedent was diagnosed with

mesothelioma. In April 2019, Fabiana had dinner with Attorney

Myra Lyons, who had represented the decedent in the preparation

of the couple's prenuptial agreement and assisted him with

various legal matters. At that dinner, Attorney Lyons asked

Fabiana if the decedent had an estate plan, and Fabiana told her

that he did not. Attorney Lyons later helped the decedent with

some legal matters in July and August of 2019. On August 27,

3 In 2013, the decedent reconveyed the property to himself,
and again took title solely in his name.

2
2019, the decedent was hospitalized for the final time. After

Attorney Lyons learned of the decedent's hospitalization, she

prepared a deed conveying title to the couple's residence to

Fabiana. "Neither Fabiana nor the [d]ecedent asked her to

prepare a deed." However, Attorney Lyons believed that the

decedent did not have an estate plan and thought he might "want

to take care of [it]."

On August 28, 2019, Attorney Lyons and her husband visited

the decedent in the hospital. After asking Fabiana to leave the

room, Attorney Lyons told the decedent that "she had prepared a

deed and asked what he wanted to do." The decedent told her

that he wanted to "take care of Fabiana and Mimmo," and leave

everything to them. He confirmed that he understood what he was

signing and that no one had told him what to do, and he signed

the deed with Attorney Lyons, her husband, and Mimmo in the

room. Attorney Lyons also asked the decedent about a trust that

he had previously established, and he told her to "leave it

alone."4 Attorney Lyons left the hospital and prepared a will

and two copies of a power of attorney.

On August 29, 2019, Attorney Lyons returned to the hospital

with the prepared will and powers of attorney. Michael Lyle and

4 The decedent created the trust in 1999. Carmela and John
each hold a beneficial interest in the trust.

3
William Vinci, longtime friends of the decedent, were present to

witness the execution of the documents. During the visit, which

lasted approximately an hour, the decedent answered questions,

appeared alert, and remembered having signed the deed the day

before. Attorney Lyons explained that the will "left everything

to Fabiana other than the [t]rust, and the [d]ecedent said that

was what he wanted." Attorney Lyons also explained the powers

of attorney. The decedent stated that he understood, and he

"repeated several times" that he wanted to take care of Fabiana

and Mimmo. The decedent signed the will and the two copies of

the power of attorney.5

Following the decedent's death, on October 16, 2019,

Carmela and John filed an equity complaint in the Probate and

Family Court seeking recission of the deed conveying the

residence to Fabiana based on lack of capacity and undue

influence.6 On March 6, 2020, Fabiana filed a petition for

formal probate of the decedent's will and requested to be

appointed as the personal representative.7 On July 9, 2020,

5 On August 29, 2019, using a power of attorney that the
decedent signed that day, Fabiana withdrew money from the
decedent's bank accounts and transferred it to her own account.

6 The complaint also alleged interference with expectancy
and unjust enrichment.

7 On June 2, 2020, a Probate and Family Court judge entered
a decree and order admitting the decedent's will to formal
probate and appointing Fabiana as the personal representative.

4
Carmela and John filed affidavits of objection on grounds that

the decedent lacked testamentary capacity to execute the will

and that the will was the product of undue influence. The

equity complaint and the petition for probate were then

consolidated. On February 10, 2021, Carmela and John amended

their equity complaint to add counts seeking recission of the

power of attorney instrument and recission of actions taken

under that instrument by Fabiana.

On August 10, 2021, Fabiana filed motions for summary

judgment, seeking to have Carmela and John's equity complaint

dismissed and to admit the will to probate. On November 12,

2021, Carmela and John moved to recuse the judge. After a

hearing, the Probate and Family Court judge denied the motion

for recusal and granted partial summary judgment in favor of

Fabiana on the issue of the decedent's testamentary capacity to

execute the deed, will, and powers of attorney. The judge

denied summary judgment on the issues of undue influence and

unjust enrichment, and dismissed the claim of interference with

expectancy. After a four-day trial, the judge concluded that

the deed, will, and powers of attorney were not procured through

On June 18, 2020, Carmela and John filed a motion seeking an
extension of time to file their objections to the petition and
asked the court to vacate the decree. The judge allowed their
motion and vacated the decree.

5
undue influence by Fabiana.8 The judge further denied Carmela

and John's request to rescind the actions taken under the powers

of attorney, struck their objections to the will, and admitted

the will to formal probate. This appeal followed.

Discussion. 1. Motion for recusal. Carmela and John

argue that the denial of their motion for recusal constituted an

abuse of discretion because the judge's "decisions and remarks"

revealed a "bias" against them and his impartiality might

reasonably be questioned due to his familiarity with Attorney

Lyons.9 This claim is unavailing.

In deciding a motion for recusal, a judge must "consult

first [his] own emotions and conscience" to ascertain whether he

is subjectively free from bias. Commonwealth v. Morgan RV

Resorts, LLC, 84 Mass. App. Ct. 1, 9 (2013), quoting Lena v.

Commonwealth, 369 Mass. 571, 575 (1976). If the judge

"subjectively believes [he] can rule impartially," he "must next

8 The judge found that the elements of unjust enrichment
were not present.

9 Carmela and John argued in their motion for recusal that
the case was "inappropriately pre-judged" based on the judge's
"rulings and commentary" in the present action and in a related
breach of fiduciary duty litigation. They pointed to, inter
alia, the judge scheduling the case for trial while there were
motions pending, the judge dismissing their complaint for breach
of fiduciary duty on "flawed procedural grounds," and the
judge's observations that they seemed to be "seeking a larger
share of their late father's assets than what would be left for
their minor half-brother."

6
attempt an objective appraisal of whether . . . [his]

impartiality might reasonably be questioned" (citation omitted).

Morgan RV Resorts, LLC, supra. We review a judge's decision on

a recusal motion for abuse of discretion. See Haddad v.

Gonzalez, 410 Mass. 855, 862 (1991).

Here, Carmela and John have failed to show that any alleged

bias of the judge stemmed from an extrajudicial source. See

Demoulas v. Demoulas Super Mkts., Inc., 424 Mass. 501, 524-525

(1997). The mere fact that they "suffer[ed] adverse rulings

during litigation does not establish lack of judicial

impartiality." Clark v. Clark, 47 Mass. App. Ct. 737, 739

(1999). Moreover, the judge's "familiarity" with Attorney Lyons

arose from his judicial role, which is a factor that "weighs

heavily in favor of the judge's decision not to disqualify

himself" (citation omitted). Haddad, 410 Mass. at 862. While

Attorney Lyons was a witness in the case, Carmela and John

offered no evidence, and made no proffer to suggest, that the

judge had any relationship with her beyond her appearing before

him in other proceedings. On the record before us, we cannot

say that the judge made "a clear error of judgment in weighing

the factors relevant to the decision such that the decision

falls outside the range of reasonable alternatives" (quotation

and citation omitted). L.L. v. Commonwealth, 470 Mass. 169, 185

n.27 (2014).

7
2. Testamentary capacity. Carmela and John contend that

the judge improperly entered summary judgment in favor of

Fabiana on the issue of the decedent's testamentary capacity to

execute the deed, will, and powers of attorney because there

were material facts in dispute. We disagree.

We review a grant of summary judgment de novo to determine

whether, "viewing the evidence in the light most favorable to

the nonmoving party, all material facts have been established

and the moving party is entitled to judgment as a matter of law"

(citation omitted). Casseus v. Eastern Bus Co., 478 Mass. 786,

792 (2018). "While we examine the record in its light most

favorable to the nonmoving party . . . '[c]onclusory statements,

general denials, and factual allegations not based on personal

knowledge [are] insufficient to avoid summary judgment.'"

O'Rourke v. Hunter, 446 Mass. 814, 821 (2006), quoting Cullen

Enters., Inc. v. Massachusetts Prop. Ins. Underwriting Ass'n,

399 Mass. 886, 890 (1987).

"At the time of executing a will, the [testator] must be

free from delusion and understand the purpose of the will, the

nature of [his] property, and the persons who could claim it."

O'Rourke, 446 Mass. at 826-827. "[A] person [. . .] may possess

testamentary capacity at any given time and lack it at all other

times." Matter of the Estate of Rosen, 86 Mass. App. Ct. 793,

798 (2014), quoting O'Rourke, supra at 827. "The proponent has

8
the burden of proof on the issue of testamentary capacity"

(citation omitted). Id. "A presumption that the testator had

the requisite testamentary capacity aids the proponent, but it

disappears if the opponent presents evidence of lack of

capacity." Maimonides Sch. v. Coles, 71 Mass. App. Ct. 240, 252

(2008).10

Here, Carmela and John did not present any direct evidence

to rebut the presumption of testamentary capacity. See Haddad

v. Haddad, 99 Mass. App. Ct. 59, 69 (2021). While they claimed

that the decedent's "mental and physical condition had worsened"

by the time he was hospitalized, they offered no evidence that

he lacked testamentary capacity during the August 28, 2019

execution of the deed or the execution of the will and powers of

attorney the next day.11 Carmela and John presented evidence

that the decedent was physically dependent on others, was

receiving morphine, and had difficulty speaking due to shortness

10Carmela and John argue that the judge "improperly
reversed the burden at the summary judgment stage." As
discussed infra, Fabiana's submissions bolstered the presumption
of testamentary capacity and "discharged [her burden as the
movant] by showing that there is an absence of evidence to
support the non-moving party's case." Kourouvacilis v. General
Motors Corp., 410 Mass. 706, 711 (1991). Thus, we discern no
error in the judge's allocation of the burden of proof.

11Indeed, the affidavit that Carmela and John cited to
support their claim that the decedent's "mental and physical
condition had worsened" contained no evidence of his mental or
cognitive condition.

9
of breath, but they failed to present evidence or facts

connecting his physical decline to a lack of testamentary

capacity. Aside from conclusory statements about the decedent's

capacity, neither Carmela nor John attested to first-hand

observations of the decedent's mental state.

In contrast, both Attorney Lyons and the witnesses to the

execution of the will and powers of attorney perceived the

decedent to possess testamentary capacity. They attested that

the decedent was of sound mind during the execution and

described him as "lucid, alert, and awake" during their visit.

The decedent expressed his desire to take care of Fabiana and

Mimmo, answered questions, indicated that he understood what he

was signing, and instructed Attorney Lyons to leave the trust

alone. In addition to the medical records and affidavits of the

witnesses, Fabiana presented an affidavit from a medical expert

who opined that the low dose of morphine the decedent received

was "insufficient" to impact his judgment. Carmela and John's

references to areas of the medical records where the decedent

received morphine, he was fatigued, or an instance where he

experienced "confusion" do not contradict the specific and

detailed observations made by Attorney Lyons and the two

witnesses. Thus, the entry of summary judgment in favor of

Fabiana on the issue of testamentary capacity was proper.

10
3. Undue influence. Carmela and John challenge the

judge's allocation of the burden of proof on the issue of undue

influence as well as the judge's factual findings. We discuss

each in turn.

a. Burden of proof. "To prove undue influence, a

contestant must show 'that an (1) unnatural disposition has been

made (2) by a person susceptible to undue influence to the

advantage of someone (3) with an opportunity to exercise undue

influence and (4) who in fact has used that opportunity to

procure the contested disposition through improper means.'"

Maimonides Sch., 71 Mass. App. Ct. at 255-256, quoting O'Rourke,

446 Mass. at 828. "In a will contest involving allegations of

undue influence, the burden of proof ordinarily rests with the

party contesting the will." Matter of the Estate of Moretti, 69

Mass. App. Ct. 642, 651 (2007). As Carmela and John point out,

"in cases involving a fiduciary, the fiduciary who benefits in a

transaction with the person for whom [she] is a fiduciary bears

the burden of establishing that the transaction did not violate

[her] obligations" (quotation and citation omitted). Matter of

the Estate of Urban, 102 Mass. App. Ct. 284, 290 (2023).

However, "[t]he burden of proving the absence of undue influence

shifts to the fiduciary only where [she] has actually taken part

in the questioned transaction" (quotation and citation omitted).

Id.

11
Carmela and John argue that the judge erred in allocating

the burden of proving undue influence to them because Fabiana

was a fiduciary under the power of attorney and an "interloper"

in the decedent's attorney-client relationship with Attorney

Lyons. We disagree. There is no evidence that Fabiana "ha[d]

actually taken part in the questioned transaction" (citation

omitted). Matter of the Estate of Urban, 102 Mass. App. Ct. at

290. Fabiana was not present during the execution of the deed,

will, or powers of attorney, and there is no evidence that she

asked Attorney Lyons to prepare the documents or directed the

provisions of the will. Moreover, as further discussed below,

the record supports the judge's findings that Attorney Lyons

provided independent counsel to the decedent, and that Fabiana

neither asked Attorney Lyons to have the will or deed executed

nor directed her regarding the provisions of the will.

b. Factual findings. Carmela and John challenge the

judge's findings of fact underlying his conclusion that the

decedent was not subject to undue influence by Fabiana. We

review the judge's findings of fact for clear error. See

Demoulas, 424 Mass. at 509. "A finding is clearly erroneous

only when, although there is evidence to support it, the

reviewing court on the entire evidence is left with the definite

and firm conviction that a mistake has been committed"

(quotations and citation omitted). Id.

12
First, we discern no clear error in the judge's finding

that the disposition was not unnatural. "A testamentary

disposition is not 'unnatural' simply because it favors certain

members of the testator's immediate family over others."

Rostanzo v. Rostanzo, 73 Mass. App. Ct. 588, 605 (2009). Given

that the decedent and Fabiana were married for thirteen years

and had a minor child, it was not unnatural for the decedent to

leave his assets to Fabiana to provide for them both. See

O'Rourke, 446 Mass. at 828 (nothing "inherently unnatural" about

disposition benefitting some children and not others). Nor does

the fact that the decedent kept his finances separate make the

disposition unnatural. See Tetrault v. Mahoney, Hawkes &

Goldings, 425 Mass. 456, 465 n.11 (1997) (disposition "is not

made unnatural merely by showing that the wife and the testator

kept separate finances"). In addition, the decedent still

provided for Carmela and John through the trust, which remained

unchanged. Based on these circumstances, the judge properly

concluded that the disposition of assets to Fabiana was not

unnatural.

Second, the record supports the findings that the decedent

was not susceptible to undue influence and that Fabiana did not

have an opportunity to exercise undue influence. The decedent

was not isolated during his final hospitalization and had

13
numerous visitors, including Carmela and John.12 Compare Matter

of the Estate of Moretti, 69 Mass. App. Ct. at 655 (overwhelming

evidence of undue influence, including that decedent was

isolated from his "long-time friends and advisers"). Further,

although the decedent was dependent on others and asked Fabiana

to speak on his behalf during his final hospital stay, she was

not present during the execution of the deed, will, or powers of

attorney, and did not discuss estate planning with the decedent

before or during his hospitalization.

Finally, Carmela and John argue that the judge erred in

finding that there was no evidence that Fabiana had procured the

deed, will, or powers of attorney. This is so, they contend,

because "it is clear from the record that Attorney Lyons acted

based on representations from Fabiana." Contrary to this

argument, the record supports the judge's finding. The judge

credited Attorney Lyons's testimony that she prepared the deed,

will, and powers of attorney without any involvement from

Fabiana and that she prepared the will and powers of attorney

after speaking with the decedent. The judge also did not err in

finding that Attorney Lyons provided independent counsel to the

decedent and did not have a relationship with Fabiana other than

12John described the hospital as a "circus" when he arrived
there on August 29, 2019, due to the amount of people there to
visit the decedent.

14
knowing her as the decedent's wife. Furthermore, the judge

found that Fabiana testified credibly that she did not procure

the deed, will, or powers of attorney, and although Fabiana

acknowledged concern about the absence of a will, "she did not

discuss this with the [d]ecedent." The trial evidence supports

the judge's findings and thus, we discern no error.13

Conclusion. For the foregoing reasons, we affirm the

decree admitting the decedent's will to formal probate and the

judgment on Carmela and John's equity complaint.14

Judgment affirmed.

Decree and order on petition
for formal adjudication
affirmed.

By the Court (Neyman, Singh &
Toone, JJ.15),

Clerk

Entered: January 17, 2025.

13We recognize that the parties presented competing
testimony and evidence at trial, and do not imply that the
arguments made by Carmela and John are without a measure of
persuasiveness. We hold only that the judge's findings of fact
and conclusions of law are supported by the record.

14 Fabiana's request for attorney's fees and costs is
denied.

15 The panelists are listed in order of seniority.

15