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Mondelli v. Kendel Homes Corp.

With regard to the Mondellis' appeal, we conclude that the district court abused its discretion in excluding the testimony of Drs. Pour and King. This exclusion of evidence was prejudicial error. The district court did not abuse its discretion in refusing to allow joinder of the claims of the Mondelli family.

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Trial is legal surgery, the narrowest specialty, and it requires unique skills. Our clients want our service and hope they never need it again- like surgery.

Domina Law Group pc llo Client Prevails in Will Contest

On the seventh anniversary of the decedent’s execution of a deathbed Will, Domina Law Group pc llo resolved a long standing dispute between the decedent’s lifelong friend and her distant relatives.

An elderly woman, communicating through a friend and caregiver, requested a lawyer come to her nursing home to discuss preparation of a Last Will. A lawyer was selected and summoned. After discussion with the person calling, the lawyer learned the caller believed the aged woman, who was widowed and childless, wanted to make a Will, a power of attorney, and a living will. Using standard form documents typical of his practice, the lawyer prepared as much of the materials as he could and took them with him to the nursing home.

Upon arriving, the lawyer encountered an aged, frail, and emaciated woman, approximately 85-pounds, who he believed to be alert, oriented, and mentally intact. The medical records confirm this assessment.

After discussion, the lawyer satisfied himself the decedent was competent to make a Will. He was convinced she knew the general nature of her property, the natural objects of her bounty, the act of making a Will, and the planned disposition of her estate. She asked the lawyer to complete the Will by filling out, in handwriting, sections that could not be prepared before the lawyer arrived. He did so.

A second witness was summoned. The elderly nursing home patient declared the document to be her Will, executed it, initialed two spelling mistakes, and declared the document to be her Will in the presence of the lawyer and second witness, both of whom signed it. The Will was not self proving.

The decedent omitted, without reference in the Will, two nephews and a niece. They were not close to her. She left her considerable estate, consisting of more than $8 million, to her lifelong friend, also an aged woman.

A Will contest ensued. It appears to have been triggered by a genealogy group that routinely combs courthouses looking for Wills of decedents who leave their property to non-family members. Where the assets may be considerable, the genealogy company searches for relatives, contacts them, and notifies them of the death and Will. If circumstances appear right to the genealogy company, it offers to engage counsel and assist in the prosecution of the Will contest case in exchange for a contingent fee.

After the case commenced and prior counsel was disqualified, Domina Law Group pc llo was called upon to undertake prosecution of the Will contest. It languished in an urban court in Michigan for seven years before it was finally resolved.

“We were able to marshal enough evidence, even belatedly, to persuade the trial court that summary judgment was appropriate on the issue of testamentary capacity,” Dave Domina said. The formalities of execution were somewhat in doubt because of inconsistent deposition descriptions between the lawyer and non-lawyer witness, but the issue was not significant. Undo influence required trial simply because of that particular claim’s nature. “Undo influence, like fraud, does not lend itself to summary judgment,” Domina explained.

The case was resolved. “Our client is now incompetent and cared for by two of her children, who have been court appointed to act as her guardians, resolved the case on the basis that nearly 85% of the total estate passes to our clients. The decision to resolve the matter was deemed prudent in view of the circumstances attending execution of the Will. The decedent died approximately 16 hours after the Will was made.”

“Our aged client, initially herself and later through her children, persevered through the long travail of this litigation. Their commitment was fortified by their disdain for the manner in which the Will contest arose, though they recognized the unusual circumstances in which the decedent’s final testamentary instrument was made,” said Brian Jorde, who assisted Domina with the litigation.

May 24, 2010

Domina Law Group pc llo is a firm of trial lawyers. We specialize in complex litigation on a national basis. Our lawyers are ethical, aggressive, and committed to providing spirit and vitality to the judicial system and our client’s legal rights.

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