IN RE: the Petition of Anthony Abbadessa (2026)

In this proceeding to vacate a decree of probate and other relief, the court, by order dated February 4, 2025, directed a traverse hearing on the issue of whether one of the interested parties was properly served with the probate citation and a copy of the purported will. After several conferences with the court, counsel for the respective parties agreed to submit the matter for determination predicated upon the papers of record, additional proof as may be filed with the court, and counsels' memoranda of law.

Background

As stated in the court's February 4, 2025 determination, decedent died on June 15, 2016 at the age of ninety-six leaving a last will and testament dated December 20, 2012. This instrument was offered for probate by Donna Geminder, decedent's niece who is the sole beneficiary thereunder. The petition for probate was filed on September 29, 2016. Decedent was survived by twenty-six distributees. Waiver of Process and Consent to Probate forms were filed by the some of the necessary parties while others were served with citation.

Three distributees filed objections to probate which were later withdrawn when the parties resolved their differences by the filing, on March 5, 2019, of a stipulation of settlement. Being satisfied with the genuineness of the propounded instrument and the validity of its execution, the court admitted decedent's will, dated December 20, 2012, to probate by decree dated March 5, 2019.

On December 18, 2020, petitioners Anthony Abbadessa, Linda Bourie a/k/a Linda Redmond, Lorraine Bourie, Stephen Bourie, Roberta Dimaio, Jane Hahn, and Barbara-Ann Westbrook filed a petition seeking to vacate the probate decree as it pertains to them and allow them to file objections. An answer was filed to the underlying petition.

The aforementioned order of February 4th dismissed the underlying petition to vacate the probate decree with respect to all of petitioners except for Roberta Dimaio, as there was a question whether jurisdiction was properly obtained over her. Since the filing of underlying petition, Ms. Dimaio has died and her son Edward Demaio was appointed fiduciary of her estate. Edward and Karin Overbeck, Edward's then girlfriend, were deposed in connection with the limited issue currently before the court and their deposition transcripts were submitted for consideration by the court.

The following facts related to this limited issue concerning jurisdiction are not in dispute. The affidavit of service upon which respondent alleges jurisdiction was obtained over Ms. Dimaio indicates that the probate citation was mailed to a "Robert Dimaio" at 5838 County Road TT, Sturgeon, WI 54235, the residence of Edward Dimaio, Roberta's son. Ms. Dimaio never resided at such address and was residing at 3851 North River Road, West Lafayette, IN 47906 at the relevant time. The mailing address for Ms. Dimaio was purportedly given to respondent by Edward Dimaio, who was his mother's agent pursuant to a power of attorney executed by her while residing in Oregon. The return receipt or "green card" accepting service of the mail addressed to "Robert Dimaio" that was sent by respondent was signed by Karin Overbeck, who resided with Edward at the Wisconsin address.

Edward acknowledged that his mother executed a power of attorney while residing in Oregon that appointed him as her agent in 2007, that the power of attorney remained in effect until her death, that he resided at the address indicated on the green card, and that he and Karin customarily signed for packages and mail that were addressed to the other. Karin Overbeck testified that she lived with Edward at the Wisconsin address during the relevant time period. She recalled signing and taking delivery of a package addressed to "Robert Dimaio," which she gave to Edward when he returned home from work. Edward recalls receiving the package and a copy of decedent's will. Although Ms. Demaio was residing in an Indiana Veterans Home at the time, nothing in the record suggests that she was under a disability that would interfere with her ability to understand the importance of legal papers.

Upon these facts, the sole issue is whether jurisdiction was properly obtained over Roberta Dimaio by serving her attorney-in-fact, as the timing of the service and contents of the package, namely the citation and copy of the will are not disputed.

In October of 2016, SCPA 307(2) provided in pertinent part that service of process may be made by certified mail or by special mail service upon a non-domiciliary without court order. As Roberta Demaio was a non-domiciliary at the time, this provision would have been applicable. However, in this instance, service was not made upon Roberta personally, but upon Edward, her attorney-in-fact, who was residing in another state at the time. As an alternative to service pursuant SCPA 307(2), SCPA 307(3)(d) provided that service may be made within or without the state, by personal delivery to someone Roberta authorized to accept service on her behalf or some other individual that the court found would be reasonably calculated to timely apprise her of citation related to the then pending probate proceeding. SCPA 307(3)(d) requires a court order. There is neither an application seeking to serve Roberta's agent and son, Edward, nor an order permitting same in the record. Further, it is undisputed, and conceded by implication, that the package containing the citation and a copy of the purported will were not served upon Edward by personal delivery.

In the absence of a court order allowing substituted service upon a designated agent, the court need not address whether the power of attorney executed by Roberta cloaked Edward with the authority necessary to accept service of process on her behalf.

Accordingly, it is

ORDERED, that the probate proceeding of this decedent is hereby opened with respect to Roberta Demaio and, absent a voluntary appearance by the duly appointed fiduciary of Roberta's estate, a reprobate proceeding shall be commenced and citation issue accordingly; and it is further

ORDERED, that counsel for the respective parties appear for a TEAMS conference on August 5, 2026 at 9:30 a.m.; and it is further

ORDERED, that failure to appear at the conference on the date and time scheduled may result in the imposition of sanctions without further notice.

VINCENT J. MESSINA, JR., Surrogate

Vincent J. Messina, Jr., S.