Law of Wills, 2016A

Facts Relevant to Claims of Undue Influence and Duress:
Decedent, her sisters Lillian and Loretta, and proponent and his family all lived in various
apartments in 45 Morton Street, a building owned by LoRoss Realty Corp., a closely-held
corporation controlled by members of the Rosasco family. When proponent’s parents threw him out
of their home, proponent, according to his deposition testimony, simply moved from his parents’
units, Apartments 7 and 8, into Apartment 2, which belonged to Lillian. Lillian resided with
decedent in Apartment 5. Loretta lived in Apartment 4. In 1989, decedent gave proponent a key to
Apartment 5.
In August 1997, proponent (along with Lillian and Loretta) attended a meeting between decedent
and Joseph J. Cella, Esq., (no relation to proponent), the attorney who drafted the September 16,
1997 instrument, at which the terms of the proposed instrument were discussed. “In essence,”
proponent testified at his deposition, “she said she’d like to leave all her possessions to her sisters
first and then to me.”
In 1997, that same year, proponent’s relationship with his sister Kate, according to his own
deposition testimony, was “hostile.” Proponent knew that decedent and her sisters provided Kate
(who no longer was residing at 45 Morton Street) with financial support. It was “common
knowledge”; besides, at the time, according to his deposition testimony, proponent had unfettered
access to decedent’s checkbook and monitored checks payable to Kate. Decedent’s financial support
of Kate infuriated proponent. He berated decedent and her sisters loudly and often. His anger
incited him to violence. He testified at his deposition that, in 1997, on one of Kate’s weekly visits to
Apartment 5 to ask decedent and her sisters for money, he struck Kate and “pushed” her to the
floor.
Kate also testified at her deposition about the 1997 incident:
“A. There was one time I believe in—I believe it was 97 when John hit me in the back while I was—
while I was leaving the apartment and he was coming in. He just swung around and hit me. And it
was in front of all three of my aunts. And that was one of the—
Q. As you were coming the [sic ] apartment?
A. As I was going out.
Q. As you were going out the door?
A. Yes. And that was the one time that—well, not the one time; but it was, like, a major time when
all three aunts got up and went after him. They were yelling at him to leave me alone. They were
very agitated and they were very upset. They called the police.”
The court notes that decedent was crippled from polio. In 1997, according to proponent’s
deposition testimony, decedent was 5′7″ and “skinny,” weighing approximately 100 pounds, while
proponent was 5′11″ tall, weighing 190 pounds.
According to Kate, the 1997 incident was not proponent’s first act of violence against her in
decedent’s presence. As she testified at her deposition:
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