Estate of Louis J. Giuliano, Sr., et al. v. Louis J. Giuliano, Jr.

Supreme Court
No. 2007-100-Appeal.
(PC 06-4598)
Estate of Louis J. Giuliano, Sr., et al. 	:
v. 	:
Louis J. Giuliano, Jr. 	:
NOTICE: 	This opinion is subject to formal revision before
publication in the Rhode Island Reporter. Readers are requested to
notify the Opinion Analyst, Supreme Court of Rhode Island, 250
Benefit Street, Providence, Rhode Island 02903, at Telephone 222-
3258 of any typographical or other formal errors in order that
corrections may be made before the opinion is published.

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Supreme Court
No. 2007-100-Appeal.
(PC 06-4598)
Estate of Louis J. Giuliano, Sr., et al. 	:
v. 	:
Louis J. Giuliano, Jr. 	:
Present: Williams, C.J., Goldberg, Flaherty, Suttell, and Robinson, JJ.
O P I N I O N
Justice Robinson for the Court. The defendant, Louis J. Giuliano, Jr., appeals from the
entry of summary judgment in favor of the plaintiffs, the Estate of Louis J. Giuliano, Sr., and
Patricia Lett.
This case came before the Supreme Court for oral argument on May 14, 2008, pursuant
to an order directing the parties to appear and show cause why the issues raised in this appeal
should not be summarily decided. After considering the record, the memoranda submitted by the
parties, and the oral arguments of counsel, we are of the opinion that cause has not been shown
and that the case should be decided at this time.
For the reasons set forth below, we reverse the Superior Court’s grant of summary
judgment.
Facts and Travel
1. The Probate Court Proceedings
On February 8, 2006, defendant’s father, Louis J. Giuliano, Sr., died. 	Shortly after the
senior Mr. Giuliano’s death, Patricia Lett, on behalf of the Estate of Louis J. Giuliano, Sr., filed

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with the Probate Court for the Town of Smithfield a petition to probate the purported will of Mr.
Giuliano.1 Ms. Lett was the named executrix of the will, which specified that after debts,
expenses, and taxes were paid, tangible property designated in any letter of instructions was
distributed, and jointly held accounts became the property of the living joint holders of those
accounts, the residue of the decedent’s estate would be distributed to a trust that the decedent and
Ms. Lett had established before he created the will.
The defendant (decedent’s son) objected to the probate of the will, challenging the
authenticity of the testator’s signature; he alleged that it was not actually his father’s signature.
On April 27, 2006, a hearing was held before the Probate Court. 	The attorney who drafted the
will (the Drafting Attorney) testified at that hearing that he specifically recalled the decedent’s
execution of the will. In an affidavit2 notarized by the Drafting Attorney, the signatures of two
other attorneys (to whom we shall refer as Signer One and Signer Two) appeared beneath a
statement that was a part of the affidavit; that statement declared (1) that the signers had, in the
presence of each other, witnessed the execution of the will by the decedent and (2) that the
decedent appeared to be of sound mind.
At the hearing in the Probate Court, the Drafting Attorney also testified that the two
persons who signed the affidavit had witnessed the execution of the will. 	Signer One testified
that he had witnessed the decedent’s execution of the will, which occurred in a conference room
at his law firm; he testified, however, that he could not recall if Signer Two was present at the
1 In view of our holding today, the validity vel non of the purported will is yet to be
determined. 	Accordingly, at this stage, the document at issue is only a “purported will.” See
G.L. 1956 § 33-7-26. 	For the sake of conciseness, however, we shall hereinafter refer to it
simply as “the will.”
2 A Rhode Island statute, discussed later in this opinion, authorizes the use of what is often
referred to as a “self-proving” or “self-executing” affidavit as a basis for the admission of a will
to probate under certain specified circumstances.

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same time as he had witnessed the will. 	Signer Two testified that he did not have a specific
recollection of the events that occurred during the execution of the will because so many years
had passed. 	Signer Two did identify the witness signature as his own. 	Offering the Probate
Court an interpretation based on the “normal course of action” that his law firm would have
followed when a will was executed there, Signer Two testified that, “based on past patterns and
practices,” he believed that the decedent had signed the will in his presence as well as in the
presence of Signer One and that they then had signed in the presence of each other.
Testimony was offered in support of defendant’s challenge to the authenticity of the
decedent’s signature that appeared on the will. The decedent’s former wife, his daughter, and his
son (defendant) all identified documents on which the decedent’s signature appeared. 	Curtis
Baggett, a handwriting expert, compared documents containing the decedent’s known signature
with the signature on the will, and he concluded that the signature on the will was not the
decedent’s own. He offered testimony concerning his methodology in examining the signatures
and his findings on the technical differences between the shape of letters in the known signatures
and the signature on the will. Mr. Baggett testified that it was his opinion that the signature on
the will was not the true signature of Louis J. Giuliano, Sr.3
On July 21, 2006, the judge who presided over the hearing in the Probate Court issued a
written decision concerning defendant’s objection to the probate of decedent’s will. 	The judge
concluded that neither side’s handwriting expert was particularly persuasive, but he added that he
thought the metholodology that plaintiffs’ expert used was more generally accepted in the field.
3 It appears from the record that plaintiffs also introduced the testimony of a handwriting
expert during the proceedings before the Probate Court; the transcript of this testimony was not
found in the record submitted to this Court, but we can infer from the Probate Court judge’s
decision that plaintiffs’ expert testified that the signature was authentic.

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He stated that the testimony of the three attorneys established that the signature on the will was
“more probably than not” the signature of the decedent.
Nevertheless, the judge denied plaintiffs’ petition for the probate of the will on the
grounds that the witnesses to the will’s execution could not remember whether they had
witnessed the decedent sign the will in the presence of each other or whether they signed as
witnesses in the decedent’s presence. The Probate Court judge found as follows:
“[T]he proponents have not shown more probably than not that
both witnesses signed in the presence of the testator and in the
presence of each other or that both witnesses were present at the
same time. These are essential elements.”
Accordingly, the judge ruled that, because plaintiffs could not demonstrate that the statutory
requirements had been met, the petition to probate the will would be denied. The judge entered
an order to that effect on August 3, 2006.
2. The Superior Court Proceedings
Thereafter, on August 31, 2006, plaintiffs filed a complaint4 in the Superior Court in
which they asked the Superior Court to order the Probate Court to admit the will to probate. In
that document, plaintiffs argued that the Probate Court judge had erroneously concluded that the
will was not properly executed.
In November of that year, plaintiffs filed a motion for summary judgment; they asserted
that the affidavit attached to the will established that there was no dispute that the witnesses to
the will signed in the presence of the decedent and each other and that the decedent signed in the
witnesses’ presence. The plaintiffs argued that the statutory requirements for executing the will
4 The document that plaintiffs filed for the purpose of appealing to the Superior Court from
the Probate Court was entitled “Complaint.”

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had been met and that the case should be remanded to the Probate Court with an order that that
court admit the will to probate.
For his part, defendant objected to plaintiffs’ contention, arguing that genuine issues of
material fact existed with respect to the proper execution vel non of the will. Pointing to the fact
that the witnesses were unable to state whether or not they had witnessed the decedent’s
signature in each other’s presence, defendant asserted that summary judgment would be
inappropriate. In addition, defendant submitted an affidavit from Curtis Baggett, the handwriting
expert, in which Mr. Baggett opined that the decedent did not sign the will.
On January 2, 2007, a hearing was held in the Superior Court on plaintiffs’ motion for
summary judgment.
With respect to the handwriting expert’s affidavit, the hearing justice remarked that it
“doesn’t say much.” 	In response to that remark, counsel for defendant stated that the basis for
Mr. Baggett’s conclusions was set forth more fully in his testimony before the Probate Court.
The hearing justice concluded that, because the affidavit was “so cursory,” she was unable to
find a genuine question of material fact. Reading the affidavit, the hearing justice stated:
“All he says is, ‘I base my opinion on my analysis of the signatures
on the known and question[ed] documents and my use of accepted
forensic document examination tools, principles and techniques.’”
After having quoted those words from the expert’s affidavit, the hearing justice sardonically
commented:
“Well, that’s helpful.
“* * *
“How can I say, ‘Oh, wow, this dispute is genuine.’?”

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The hearing justice characterized the content of the handwriting expert’s affidavit as “a bald
statement,” and she questioned how such “a bald statement” could be a predicate for the denial
of summary judgment.
Counsel for defendant countered the hearing justice’s queries by articulating the reasons
why defendant thought the case should proceed beyond the summary judgment stage. 	He
contended that the dispute was genuine in view of the fact that, in counsel’s words, “a witness
with the suitable qualifications is testifying in that affidavit that his professional conclusion is
that the signatures are not genuine.” He further argued:
“I think in the case where we’re talking about the genuineness of a
signature, your Honor, and the document examiner says that * * *
his professional conclusion is that the signature is not genuine, that
that does raise an issue of fact for the trier of fact.”
The hearing justice disagreed with defendant’s arguments in opposition to plaintiffs’
motion for summary judgment. She stated:
“I’m going to grant the motion. I’m not satisfied that based on
this affidavit that the dispute is a genuine dispute. 	I understand
that experts can’t be expected to detail every bit of their findings in
an affidavit, or even in an interrogatory answer, or even in
deposition testimony, but he has not come forward to give me
enough so that I can, with confidence, say that this dispute is
genuine. As I said before, I think the legislature enacted this whole
process 	of 	self-executing 	affidavits 	to 	create 	some 	sort 	of
presumptive effect. 	I don’t think I’ve completely thought it
through, but that’s what I see that we have here, and the question is
whether this is enough to get us by and shift the burden on to the
estate.”
The hearing justice additionally remarked that she did not believe the handwriting expert’s
affidavit overcame the “presumptive effect” of the self-executing affidavit. 	The hearing justice
further stated that, because she could not “say with confidence” that a genuine dispute existed in
the case, she would grant plaintiffs’ motion for summary judgment.

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In an order entered on January 4, 2007, the hearing justice sustained plaintiffs’ probate
appeal and ordered that the will be admitted to probate. The defendant filed a notice of appeal to
this Court on January 16, 2007.
3. The Issues on Appeal
On appeal, defendant presents two arguments in support of his claim that this Court
should reverse the judgment of the hearing justice: (1) that the self-executing affidavit is not
sufficient to establish that all of the requirements for probating the will were satisfied; and (2)
that he raised a genuine issue of material fact with respect to the authenticity of the decedent’s
signature on the will. 	The defendant contends that these two issues should have precluded the
hearing justice from granting plaintiffs’ motion for summary judgment.
The plaintiffs assert (1) that defendant improperly relied on the proceedings before the
Probate Court to try to create a genuine issue of material fact; and (2) that the hearing justice
appropriately granted their motion for summary judgment because the handwriting expert’s
affidavit was conclusory and failed to set forth sufficient facts in support of his opinion that the
decedent did not sign the will.
Standard of Review
Summary judgment is “a drastic remedy,” and a motion for summary judgment should be
dealt with cautiously. 	Ardente v. Horan, 117 R.I. 254, 256-57, 366 A.2d 162, 164 (1976)
(“Summary judgment is a drastic remedy and should be cautiously applied * * * .”); see also
DePasquale v. Venus Pizza, Inc., 727 A.2d 683, 685 (R.I. 1999) (“This Court has consistently
acknowledged that summary judgment is a harsh remedy that must be applied cautiously.”);
Sjogren v. Metropolitan Property and Casualty Insurance Co., 703 A.2d 608, 610 (R.I. 1997).

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The summary judgment papers filed by the movant must seek to establish that there exists
no genuine dispute with respect to the material facts of the case. 	If the movant satisfies that
requirement, the nonmovant must point to evidence showing that a genuine dispute of material
fact does exist. 	See Benaski v. Weinberg, 899 A.2d 499, 502 (R.I. 2006); Superior Boiler
Works, Inc. v. R.J. Sanders, Inc, 711 A.2d 628, 631-32 (R.I. 1998). 	The nonmovant must, by
competent evidence, prove the existence of a disputed issue of material fact. Benaski, 899 A.2d
at 502. 	The nonmovant may not rely upon “mere allegations or denials in the pleadings, mere
conclusions or mere legal opinions.” Tanner v. Town Council of East Greenwich, 880 A.2d 784,
791 (R.I. 2005) (internal quotation marks omitted).
A hearing justice who passes on a motion for summary judgment “must review the
pleadings, affidavits, admissions, answers to interrogatories, and other appropriate evidence from
a perspective most favorable to the party opposing the motion.” 	Steinberg v. State, 427 A.2d
338, 340 (R.I. 1981). The hearing justice may grant the motion for summary judgment only if,
after conducting that required analysis, he or she determines that “no issues of material fact
appear and the moving party is entitled to judgment as a matter of law * * *.” Id.
It is important to bear in mind that the “purpose of the summary judgment procedure is
issue finding, not issue determination.” 	Industrial National Bank v. Peloso, 121 R.I. 305, 307,
397 A.2d 1312, 1313 (1979); see also Saltzman v. Atlantic Realty Co., 434 A.2d 1343, 1345
(R.I. 1981); Steinberg, 427 A.2d at 340 (“[I]n ruling on a motion for summary judgment, the trial
justice must look for factual issues, not determine them.”); O’Connor v. McKanna, 116 R.I. 627,
633, 359 A.2d 350, 353 (1976) (“[I]n passing on a motion for summary judgment, the question
for the trial justice is whether there is a genuine issue as to any material fact and not how that
issue should be determined.”).

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This Court reviews the granting of a motion for summary judgment on a de novo basis; in
so doing, we employ the same rules and standards that the hearing justice used. 	Benaski, 899
A.2d at 502; see also O’Sullivan v. Rhode Island Hospital, 874 A.2d 179, 182 (R.I. 2005);
Gliottone v. Ethier, 870 A.2d 1022, 1027 (R.I. 2005); DePasquale, 727 A.2d at 685. 	Summary
judgment will be upheld by this Court only if no genuine issues of material fact exist and the
movant is entitled to judgment as a matter of law. 	Liberty Mutual Insurance Co. v. Kaya, 947
A.2d 869, 872 (R.I. 2008) (noting that this Court will “affirm a summary judgment only when,
after reviewing the admissible evidence in the light most favorable to the nonmoving party, we
conclude that no genuine issue of material fact remains to be decided, and that the moving party
is entitled to judgment as a matter of law”) (internal quotation marks omitted); see also American
Express Bank, FSB v. Johnson, 945 A.2d 297, 299 (R.I. 2008); Lacey v. Reitsma, 899 A.2d 455,
457 (R.I. 2006).
Analysis
I. The Self-Executing Affidavit
Pursuant to the Rhode Island General Laws, any “person of sane mind and eighteen (18)
years or older in age, may devise, bequeath, or dispose of, by his or her will, executed in the
manner required by [statute], all real estate and all personal estate * * *.” 	G.L. 1956 § 33-5-2.
Importantly, for a will to be admitted to probate, the will must meet the specific requirements set
forth in the General Laws.5
5 The rationale that underlies the strict requirements surrounding the execution of wills has
been cogently described in a law review article:
“Although 	the 	primary 	purpose 	of 	succession 	laws 	is
realization of the decedent’s intent, statutes intercede to thwart
even the dearest goals of a would-be-testator * * *.

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Section 33-5-5 sets forth the criteria governing the validity of a will in Rhode Island. It
provides in pertinent part as follows:
“No will shall be valid * * * unless it shall be in writing and
signed by the testator, or by some other person for him or her in his
or her presence and by his or her express direction; and this
signature shall be made or acknowledged by the testator in the
presence of two (2) or more witnesses present at the same time,
and the witnesses shall attest and shall subscribe the will in the
presence of the testator, but no form of attestation shall be
necessary, and no other publication shall be necessary.” Id.
Therefore, a valid will in Rhode Island must be signed by the testator in the presence of two
witnesses; those witnesses, in turn, must sign the will in the presence of each other.
General Laws 1956 § 33-7-26 authorizes a particular procedure for proving a purported
will or codicil—which procedure is at issue in the instant case. That statute allows for the use of
oral testimony or the submission of an affidavit to prove the validity of a will and therefore
justify its admission to probate. Section 33-7-26 provides in pertinent part:
“In the absence of objection by anyone interested in the estate
of a deceased person, the probate court may admit to probate a
purported 	will 	or 	codicil 	of 	the 	deceased 	person 	upon 	oral
testimony or affidavit in the following manner:
“(1) The oral testimony of any one of the subscribing witnesses
as to the due execution of any purported will or codicil shall
constitute sufficient evidence thereof.
“(2) An affidavit by the subscribing witnesses or any one or
more of them, to any purported will or codicil, executed at any
time after execution of the will or codicil, whether before or after
the 	death 	of 	the 	testator, 	before 	any 	officer 	authorized 	to
“Naturally, the purpose of these statutes, which set forth the
requirements for a valid will, is not to convert the will-writing
process 	into 	a 	game 	of 	connect-the-dots. 	The 	statutory
requirements are generally straightforward, and as long as the
testator is careful, she [or he] should succeed in meeting these
requirements.” 	Julia 	E. 	Swenton, 	The 	Missing 	Piece: 	The
Forgotten Role of Testator Intent in the Application of the Doctrine
of Dependent Relative Revocation in Oklahoma, 59 Okla. L. Rev.
205, 205 (2006).

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administer oaths in or out of this state, stating the facts as the
witnesses or witness would be required to testify to in court to
prove the will or codicil, shall constitute sufficient evidence of the
due execution of the purported will or codicil.”
The statute goes on to provide an acceptable form for the affidavit described in subparagraph (3)
of § 33-7-26—an affidavit that is commonly referred to as a self-executing or self-proving
affidavit.
Pursuant to the explicit terms of the statute, such an affidavit can serve as proof of the
facts that the affiant(s) “would be required to testify to in court to prove the will”—if, but only
if, there is “the absence of objection by anyone interested in the estate.” Section 33-7-26. In his
appeal to this Court, defendant has properly emphasized that such an affidavit serves as proof of
the proper execution of a will only in the absence of an objection by an interested party. In view
of the fact that defendant did, in fact, object to the probate of the will, he contends that the
Superior Court’s ruling that the will should be admitted to probate was improper. We agree.
Inasmuch as the hearing justice’s decision to grant plaintiffs’ motion for summary
judgment rested on her perception that the self-executing affidavit created a “presumptive effect”
of the will’s validity,6 we observe that our statutory law governing the use of such a document
expressly stipulates that its function is to establish the validity of a will in a case in which there is
an “absence of objection by anyone interested in the estate.” Section 33-7-26. This is not such a
case. 	As indicated above, defendant did object to the probate of his father’s will; although the
self-executing affidavit may offer some evidentiary value to the outcome of this case, we are
unable to view it as determinative at the summary judgment stage.
6 The hearing justice remarked that she did not believe that the affidavit of defendant’s
handwriting expert overcame the “presumptive effect” of the self-executing affidavit; she then
stated that, because she could not “say with confidence” that a genuine dispute existed in the
case, she would grant plaintiffs’ motion for summary judgment.

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Because defendant did indeed object to the probate of the will, it is clear from the express
language of § 33-7-26 that the affidavit cannot alone serve as sufficient evidence to admit the
will to probate; because the testimony of the signing attorneys raises questions about their
presence during the will’s execution, we conclude that a genuine issue of material fact exists
with respect to whether or not the will was properly executed.
Accordingly, we conclude that this genuine issue of material fact caused the granting of
summary judgment by the Superior Court to have been inappropriate.
II. The Authenticity Vel Non of the Signature on the Will
Additionally, defendant argues that he sufficiently pointed to another genuine issue of
material fact—viz., the issue of the authenticity vel non of the signature on the will; he contends
that his showing in that regard should have precluded the hearing justice from granting plaintiffs’
motion for summary judgment. We agree with defendant.
Our examination of the record in this case leads us to the ineluctable conclusion that a
material factual dispute exists with respect to the issue of whether the signature that appears on
the will is authentic.7 We disagree with the hearing justice’s conclusion that the affidavit of
defendant’s handwriting expert, Mr. Baggett, constituted an insufficient showing that there was a
genuine factual dispute about the signature for the purposes of Rule 56 of the Superior Court
Rules of Civil Procedure. While Mr. Baggett’s affidavit was certainly somewhat laconic, he did
sufficiently (1) provide information concerning his expertise as a document examiner; (2)
indicate the documents that he examined; (3) summarize the examination technique that he
employed (viz., comparing the signatures on the “questioned” documents with the signatures on
7 It should go without saying that the authenticity vel non of signatures on documents is
always a matter of grave concern in our judicial system. 	See generally Rockdale Management
Co. v. Shawmut Bank, N.A., 638 N.E.2d 29 (Mass. 1994). For obvious reasons, that concern is
heightened where the probate of wills is concerned.

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the “known” documents); and (4) set forth his “professional conclusion and expert opinion that
the signatures on the [questioned] documents were signed by someone other than Louis Giuliano,
Sr. * * *.”
Even though the handwriting expert’s affidavit was less than replete with information
about the methodology that he employed before reaching his expert conclusion, it was at least
minimally adequate to satisfy the obligation of defendant (the nonmovant) to show the presence
of a “genuine issue as to [a] material fact.” 	Rule 56(c). 	The affidavit was sufficient to
accomplish what a nonmovant must do in order to defeat a facially proper motion for summary
judgment; it was far from being an improper compilation of “naked conclusionary assertions that
there may be underlying but unarticulated admissible and supporting evidentiary facts which, if
uncontroverted, might serve as grounds for the relief sought.” 	Harold W. Merrill Post No. 16
American Legion v. Heirs-at-Law of Orlando, 116 R.I. 646, 648, 360 A.2d 110, 112 (1976); see
also Carrozza v. Carrozza, 944 A.2d 161, 164 (R.I. 2008); Roitman & Son, Inc. v. Crausman,
121 R.I. 958, 959, 401 A.2d 58, 59 (1979) (mem.).
We conclude that there is indeed a “genuine issue” of material fact with respect to the
authenticity of the testator’s signature. 	Although the hearing justice determined that she could
not “say with confidence” that a genuine dispute exists in this case, we do not understand our
caselaw to mandate such a requirement of “confidence” on the part of the hearing justice.8
Rather, we have stated that summary judgment is to be employed cautiously because it is such an
extreme remedy; summary judgment should occasion the termination of a case only where it is
8 See Mitchell v. Mitchell, 756 A.2d 179, 185 (R.I. 2000) (stating that the purpose of
summary judgment “is not to cull out the weak cases from the herd of lawsuits waiting to be
tried” and further stating that “only if the case is legally dead on arrival should the court take the
drastic step of * * * granting summary judgment”); see also Rodrigues v. DePasquale Building
and Realty Co., 926 A.2d 616, 622 (R.I. 2007).

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absolutely clear “that no genuine issue of material fact exists and that the moving party is entitled
to judgment as a matter of law.” 	American Express Bank, FSB, 945 A.2d at 299 (internal
quotation marks omitted).
Conclusion
In view of the record before us, we conclude that summary judgment was improperly
granted. 	Two issues of material fact perdure in this case: (1) whether or not the will was
executed in accordance with the statutory requirements; and (2) whether or not the signature on
the will is genuine. The resolution of those issues should not have been foreclosed by summary
judgment.9
For the reasons set forth in this opinion, we reverse the Superior Court’s grant of
summary judgment. The papers in this case may be remanded to the Superior Court.
9 While we express absolutely no view about the authenticity issue at this stage of the
litigation, it may well be that the trier of fact will ultimately give short shrift to defendant’s
attempt to challenge the authenticity of the signature at issue; but it is also entirely possible that
the trier of fact will reach the opposite conclusion. 	For today’s purposes, however, that is
precisely the point: under our Rule 56 jurisprudence, this is an issue that must be scrutinized and
decided by a trier of fact. See Gliottone v. Ethier, 870 A.2d 1022, 1027 (R.I. 2005). The weight
of the evidence should not be evaluated at the summary judgment stage. Steinberg v. State, 427
A.2d 338, 340 (R.I. 1981); see also Doyle v. State, 411 A.2d 907, 909 (R.I. 1980); see generally
Beaton v. Malouin, 845 A.2d 298 (R.I. 2004).

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COVER SHEET
TITLE OF CASE: 	Estate of Louis J. Giuliano, Sr., et al v. Louis J. Giuliano, Jr.
DOCKET NO: 	2007-100-Appeal
COURT: 	Supreme
DATE OPINION FILED: 	June 20, 2008
Appeal from
SOURCE OF APPEAL: 	Superior 	County: Providence
JUDGE FROM OTHER COURT: 	Judge Patricia A. Hurst
JUSTICES: Williams, C.J., Goldberg, J., Suttell, J., Flaherty and Robinson, JJ.
NOT PARTICIPATING:
WRITTEN BY: 	Justice William P. Robinson, III, for the Court
ATTORNEYS:
For petitioner: 	Jeffrey Techentin, Esq.
ATTORNEYS:
For respondent: 	Thomas Dickinson, Esq.