washington county the estate of joyce c. willner c.a. … · whiner, at the same time michael...
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16 ilinci WP13-0400
STATE OF RHODE ISLAND SUPERIOR COURT WASHINGTON COUNTY
THE ESTATE OF JOYCE C. WILLNER C.A. NO.: WP13-0400
PRETRIAL MEMORANDUM OF APPELLEES, KURT WILLNER & YAFFA WILLNER
BACKGROUND
Kurt Willner and Joyce C. Winner were married in 1951 and emigrated to the United
States of America where they raised a family, put their children through college, and had lived
happily for more than sixty-two years. In the fall of 2012, Michael A. Willner came from up
Virginia and began to wreak havoc and a campaign of terror, harassment, and abuse against this
loving couple by his bullying and manipulated family members, neighbors, and healthcare
professionals. These battles were waged with the medical providers, at the probate court and
have now escalated to the Superior Court level.
While they were living at their home in South Kingstown, Kurt Willner's attempt to care
for his wife.with the assistance of Michael Willner, Yaffa Willner and other health care
professionals, and meet her level of care necessary for Joyce Winner, nearly killed Joyce and
Kurt. Joyce Willner was removed from the marital home nearly dead. Joyce Willner was placed
at South Kingstown Hospital where she received hospice services and was then transferred to
Roberts Health Center in North Kingstown, RI. Kurt Willner travels to the Roberts Health
Center a renowned skilled nursing facility, close to his home to visit with wife almost daily. His
love and devotion to her is clear. It was a difficult decision that he made with a heavy heart to
move Joyce from their marital home to the facility. At the direction of the medical professionals,
he was advised that the safest setting for Joyce would be in a long term care facility. The
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medical professionals were all in agreement in this decision, including but not limited to the
South County Hospital staff, Joyce C. Willner's primary care physician, Kurt Willner's primary
care physician, the staff of the Roberts Health Center, The Alliance for Better Long Term Care;
and the State of Rhode Island Transition Team. Joyce Willner's medical condition(s) are being
monitored and treated daily at Roberts Health Centre. She is comfortable and happy in this
setting.
At the time of the appointment of Michael Willner as the guardian, Kurt Winner, eighty-
nine years old, was physically, mentally, and emotionally spent at the time his son was appointed
Guardian of his wife. Due to his own health conditions, he was unable to assist his attorney with
the appeal he prepared and missed the statutory deadline for filing the same.
Upon his appointment as the permanent guardian, without limitation, Michael A. Willner
immediately began to make inappropriate decisions; he changed the long standing advance
directives of his mother from do not resuscitate, to a full code that would require heroic life
saving measures in the event of a serious medical event, such as a heart attack; he was abusive to
medical professionals, social services, state agency representatives and family members; he
promised the Ward she would return home which is tantamount to torture as her level of care
requires placement in a skilled nursing facility; his proposals to send her home or to the home of
a neighbor were so absurd they were immediately denied by the Probate Court.
Over time, the relationship between Kurt Winner and Michael Willner has become
adversarial. This was due in part because, Michael Milner wants to remove Joyce Willner from
her current residence at Roberts Health Centre and bring her back into the marital home or in the
alternative to a neighbor's home, and this is not in her best interest.
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Supulemental Facts and Case Travel (see attached joint statement of facts for additional
information)
1. Joyce Milliner is the wife of Kurt Willner and the mother of Michael and Yaffa Willner.
2. Kurt Willner is approximately 92 years old. Joyce Willner is approximately 90 years old.
3. Joyce and Kurt Willner continue to have a harmonious relationship. Joyce Willner
continues to express her unconditional love for her husband.
4. Due to his inappropriate actions, Michael Willner has been restricted in his interactions
with Joyce Willner. Michael Winner has been restricted to only visiting Joyce Winner in
the common areas at Roberts Health Centre.
5. On or about April 25, 2013 a Removal Petition was filed in the Town of South Kingston
Probate Court.requesting the removal of Michael Winner as the guardian of Joyce
Winner.
6. On or about July 9, 2013 an Objection to the Removal Petition was filed in the South
Kingston Probate Court. This objection was signed by Attorney Melish as the attorney
for the Estate. Michael Willner did not file an objection to the removal petition.
7. The hearing date for the removal petition was July 18, 2013. The removal petition was
continued until September 2013 without any objection as to notice.
8. The issue of proper notice relating to the pending removal petition and its continuance
was never raised by the Attorney Melish until the August 15, 2013 hearing.
9. Joyce Whiner's health providers have indicated that she suffers from Alzheimer's
disease, is blood transfusion dependent, at risk for falls, is on a restricted diet, suffers
from chronic urinary tract infections, and has almost daily lab testing.
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10. Kurt and Joyce Willner do not have the financial resources to employ full time caregivers
for Joyce. Joyce Willner receives Medicaid assistance that pays for her nursing home
care.
11. In the South Kingstown Probate Court, Attorney H. Jefferson Melish has entered his
appearance, or held himself out, as representing Joyce Winner, the Estate of Joyce
Willner, Michael Winner individually, and as the Guardian of Joyce Willner all at the
same time.
12. At some point prior to the hearing of August 15, 2013, and after he was appointed
Guardian for Joyce Winner, Michael Willner engaged in ex-party contact with the
Honorable Judge O'Keefe by telephoning the judge at his office, yelling in the courtroom
during a hearing and following the Judge into the parking lot after a hearing to speak with
him. (see South Kingstown Probate Court transcript of August 15, 2013).
13. Joyce Milner had expressed a desire to go home because she misses her husband. Since
her husband does not have the resources to care for his wife, he has been unable to bring
her home.
14. Joyce Willner has requested that her husband, Kurt Willner come to live with her at the
Roberts Health Centre. She has expressed that she loves him unconditionally and wants
to be with him wherever he is. Due to his age and the desire to be with his wife all of the
time, Kurt Willner has decided that he will abide by his wife's wishes and is planning on
moving into Roberts Health Center to be with his wife.
15. Two separate appeals have been filed with the Superior Court; the first is on behalf of the
Guardian, Michael Winner and the second (titled Amended Claim of Appeal) is on the
behalf of the non-entity, The Estate of Joyce Willner.
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Issues Presented
I. Initial Appeal - Claim of appeal by the Guardian. Michael Willner
This appeal presents the following issues:
1. Should Michael Willner be allowed to enter his appearance pro se, thereby representing
himself individually, and representing the guardian (a court appointed fiduciary) and by
implication, the ward, Joyce Willner, at the same time?
2. Should the court strike the pleadings filed by Michael Willner, pro se?
3. Should Attorney H. Jefferson Mash be allowed to represent the Estate of Joyce Willner?
4. Should the Court approve the home health care plan presented by Michael Willner?
5. Does Michael Willner need a court order to access Joyce Winner's assets?
II. Second Appeal - Claim of Appeal by the Estate of Joyce C. Winner
1. Are the remaining issues presented in the Amended Reasons of Appeal time bared?
2. What are the notice requirements for a pending matter (removal or miscellaneous
petition), that has led to exigent action being required due to the actions of the party
claiming lack of proper notice?
3. Did the South Kingston Probate Court retain jurisdiction over a portion of the
Guardianship while an appeal is pending?
4. Should Michael Willner be removed as the Guardian of Joyce Willner?
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III. Should this Court give any weight to the orders and decision of the South Kingstown
Probate Court as provided for in RILL 33-23-1?
Although not required to do so, this Court may take into account the orders and decision of the
Probate Court. In order to fully grasp the scope and nature of this unique case, this Court should
take into account the orders and decision of the Probate Court
I. Arguments in support of the Apnellee's position. in opposition to the Initial Anneal -
Claim of appeal by the Guardian. Michael Wiliner:
The initial appeal titled Claim of Appeal was filed in the Superior Court on or about August 1,
2013 by Attorney H. Jefferson Melish on behalf of Michael Wiliner, Guardian. The Claim of
Appeal filed with the Town of South Kingstown Probate Court was also filed on behalf of
Michael Wiliner, Guardian on or about July 31, 2013. The wording and substance of the first
appeal filed with the Probate Court (Claim of Appeal) are substantially different from the
wording of the appeal filed with the Superior Court. However, each document is specific that the
appeal is being brought by the Guardian, Michael Winner.
1. Michael Milner should not be allowed to enter his appearance pro se, thereby
representing himself individually, and representing the guardian (a court appointed
fiduciary) and by implication, the ward; Joyce Whiner, at the same time
Michael Winner, an attorney, not admitted to the Rhode Island Bar, should be prevented
from representing himself, the guardian of the estate and by implication the ward, Joyce Wiliner.
The basis of this position is that it is unlawful for a party not licensed in this state to practice law.
The Rhode Island General Laws are clear as to what is the practice of law. RILL 4 11-27-2.
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states in part "Practice of law" defined "Practice law" as used in this chapter means the doing of
any act for another person usually.done by attorneys at law in the course of their profession.
The Rhode Island Legislature has enacted a law that makes this action a crime. RIGL § 1 1 -27-
-14. states in part "Penalties for violations"; Any person violating any of the provisions of this
chapter shall, upon a first conviction, be imprisoned for a term not exceeding one year, or fined
not exceedingfive hundred dollars (0500). or both. Since Michael Winner is not a member of
the Rhode Island Bar, he is precluded from representing the guardian of the estate and by
implication the ward, Joyce Winner. Since Michael Willner has taken the position that he should
also be the guardian, he would have a clear conflict of interest if he were to advance his own
agenda and that as the fiduciary at the same time. Clearly representing the court appointed
fiduciary; the Guardian, as well as the ward is by implication, the practice of law as outlined
above.
As a licensed attorney in the District of Columbia and former member of the Rhode
Island Bar; Michael Willner is familiar with the rules of professional practice. He has shown his
inability to conduct himself professionally and has taken action to the detriment of Joyce Winner
by filing a divorce complaint on behalf of Joyce Willner requesting that Kurt Winner be
removed from the marital home and acting inappropriately in the courtroom. On one occasion,
Michael Willner shouted out, while court was in session, "my father is stealing my mother's
money". This shows his inability to conduct himself as a professional in a court of law. This is
another example of his unprofessional conduct and his inability to follow the conduct expected
of him as an attorney and as a guardian. Pursuant to the rules of professional practice, he knows
that he cannot have ex parte communication with a Judge presiding over a case where Michael
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Winner is a party. Notwithstanding this prohibition, Michael Willner, while acting as a pro se
litigant and licensed member of the District of Columbia bar, had ex parte contact with the South
Kingston Probate Judge. He followed the judge into the parking lot after a Probate hearing to
speak with the Judge. On another occasion, he called the Judge at his office to speak with him
about this case. (see South Kingstown Probate transcript of August 15, 2013). This
demonstrates his inability or unwillingness to adhere to the rules of professional conduct. (See
Rules of Professional Conduct: Rule 3.5 Impartiality and decorum of the tribunal which states in
part a lawyer shall not: seek to influence a judge... by means prohibited by law; (b) communicate
ex pane with such a person during the proceeding). If he is unable to adhere to these well-
established rules, clearly he is not competent to represent himself and the Guardian as a Pro Se
litigant.
If Michael Winner were allowed to represent himself and the Guardian, he would be
precluded from being a witness in this matter. Since he is proposing several items that would
require his•testimony, he would be precluded from representing himself. (See Rules of
Professional Conduct: Rule 3.7 which states in part (a) A lawyer shall not act as advocate at a
trial in which the lawyer is likely to be a necessary witness). He cannot fulfill the role as a
witness and that as an attorney at the same time. Based upon the above, this Court should not
allow Michael Willner to enter his appearance pro se.
2. The court should strike the pleadings filed by Michael Willner, pro se.
Michael Winner is not a licensed attorney in the state of Rhode Island. He is a licensed
attorney in the District of Columbia and therefore should be held to a higher standard than the
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usual Pro se litigant should. The authority of Michael Winner, acting in his capacity as guardian, does not include his authority to practice law or represent the interests of Joyce Willner in his capacity as attorney and guardian. Although Michael Willner has entitled his request as a pro se litigant, he is the guardian and also the petitioning attorney on behalf of the guardian. This type of representation is prohibited by the Rules of Professional Conduct and the Rhode Island General Laws. Any action taken by Michael Winner in filing motions on behalf of the ward or the guardian would be tantamount to representing those parties as an attorney. This type of representation is prohibited. (Rules of Professional Conduct; Rule 5.5 which state in part (a) A lawyer shall not practice law in a jurisdiction in violation of the regulation of the legal profession in that jurisdiction). In re Steven E. Ferrey 774 A.2d 62 (R.I. 2001) states in part Recognizing that circumstances might arise when a particular client might on "special and infrequent occasion and for good cause shown" require the assistance of an out-of-state attorney in a particular court proceeding in this state, this Court promulgated Rule 9 of Article II of our Supreme Court Rules concerning the admission of out-of-state counsel to practice law in this state. It is clear that Michael Willner is requesting that he continue to represent a party in the State of Rhode Island, this is not a special or infrequent occasion as referenced in Ferry. Unlike the Ferry case, Michael Winner is very familiar with the standards of practice and procedure in the State of Rhode Island based upon his prior admission to the Rhode Island Bar. Since Michael Willer is not currently a member of the Rhode Island Bar and has not requested Pro Hoc Vice admission for a special or infrequent matter, he is precluded from representing any party before the Rhode Island Courts. The basis of this position is theft is unlawfirl for a party not licensed in this state to practice law. The Rhode Island General Laws are clear as to what is the practice of law. RILL 6 11-27-2. states in part "Practice of law" defined "Practice law" as
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used in this chapter means the doing of any act for another person usually done by attorneys at
law in the course of their profession. The Rhode Island Legislature has enacted a law that makes
the unauthorized practice of law a crime. RIGL § 11-27-14 states in part "Penalties for
violations"; Any person violating any of the provisions of this chapter shall, upon a first
conviction, be imprisoned for a term not exceeding one year, or fined not exceeding five hundred
dollars ($500), or both. Since he is not a member of the Rhode Island bar, he should be
precluded from filing any motions relating to the ward or the guardian.
3. Attorney Melish should not be allowed to represent the estate of Joyce Willner and
should be disqualified from representing Michael Willner individually and as the
Guardian.
Attorney Melish has not been appointed by the court to represent the Estate of Joyce
Whiner. (see South Kingstown Probate transcript of August 15, 2013). The Estate of Joyce
Winner is a non-entity. In filing the first appeal of the Orders of July 16 and July 25, 2013,
Attorney Melish entered his appearance with the Superior Court on August 1, 2013, for Michael
Willner, Guardian for the estate of Joyce Willner. Attorney Melish never enter his appearance in
the Superior for the Estate of Joyce Willner.
In order to represent a client, an attorney needs to be able to enter into a professional
contract with the client. Rule 17 of the Rhode Island Superior Court Rules of Civil Procedure
provides guidance as to a proper party for taking an appeal. Rule 17 states in part (a) Real Party
in Interest. Every action shall be prosecuted in the name of the real Party in interest. An
executor, administrator, guardian, may sue in that person's own name without joining the party
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for whose benefit the action is brought. The Estate of Joyce Wiliner is not a person and therefore
cannot take an appeal. Pursuant to Rule 17, the appeal shall be taken in the name of the real
party in interest. The Superior Court Rules of Practice prescribe the proper parties relating to a
Probate Court appeal. Rules of Practice 1.7 states in part Probate appeals shall be entitled by the
appellant's attorney under the name of appellant against appellee The reasons of appeal
shall contain the names and residences of all the appellants .... This is not discretionary on
behalf of a party or the Court. In this matter the proper party would have been appellant, Joyce
Willner or appellant Michael Winner Guardian. Clearly it could not be a non-entity, the Estate
of Joyce Willner. Attorney Melish apparently was hired by Michael Willner in order to address
the claim that he (Michael Wiliner) should be entitled to enter his appearance pro se and for the
purpose of this appeal,: Since Michael Wiliner in his capacity of guardian has requested that he
be allowed to represent himself, the Guardian and by implication the ward, Joyce Wiliner, there
is no party remaining for Attorney H. Jefferson Melish to represent. The Estate of Joyce Willner
is a nonexistent entity. Since the Estate is a non-entity, Attorney Melish does not have anyone to
represent.
If this court determines that the Estate of Joyce Willner is in fact entitled to
representation, Attorney Melish is clearly not capable of fulfilling this duty. As the attorney for
Michael Willner, Attorney Melish has placed himself in a position of having a conflict. In this
particular case, the estate of Joyce Wiliner (if this Court finds this to be an entity); Michael
Wiliner, the guardian; and the ward, Joyce Willner all have differing interests and therefore
cannot be represented by the same attorney.
On July 19, 2013, Attorney Melish was allowed to enter his appearance in the South
Kingstown Probate Court on behalf of Michael A. Willner only. Mr. Melish was specifically
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ordered and was prohibited from representing either, the Ward, Joyce Willner, or the Estate of
Joyce C. Wilber.
On July 31, 2013, Attorney Melish filed an action for divorce on behalf of Joyce Winner
in the Washington County Family Court. The petition was apparently signed by Michael Willner
and Joyce Willner. The signatures on the complaint for divorce were not notarized. In filing the
complaint for divorce, it is alleged that the grounds for divorce are that iirreconcilable
differences have led to the breakdown of the marriage. This assertion is false as Mr. Willner
visits with wife nearly every day and continues to advocate for her best interests. The only
irreconcilable differences that exist are those between Michael Willner and his father, Kurt
Winner. In the Motion for Temporary Orders, it is alleged that the parties have lived separate
and apart since April of 2012. This assertion is blatantly false and is a material
misrepresentation to the Court. Joyce Willner is in a nursing facility and is receiving medical
care, not living separate and apart from her husband. Michael Willner has represented on several
occasions that he would like his mother to move back home with her husband. If Michael
Willner would like Joyce Willner to return home, his wishes are at odds with the filing of a
divorce complaint that requested the removal of his father from the home. Clearly, Attorney
Melish, in filing the Complaint for Divorce, has violated the Rules of Professional Conduct, Rule
3.1 and 4.4. (See Rules of Professional Conduct Rule 3.1 which states in part a lawyer shall not
bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in
law and fact for doing so that is not frivolous and Rule 4.4 (a) In representing a client, a lawyer
shall not use means that have no substantial purpose other than to embarrass, delay, or burden a
third person)
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Additionally, it appears that Attorney Melish may have committed a breach of his
professional duty by notarizing the signature of Joyce Winner on the Family Court form DR6.
Pursuant to the Family Court rules, a form DR6 must also filed with the divorce petition. The
DR6 is a statement of assets and liabilities. The DR6 must be signed and notarized. The
signature page on the DR6 appears to have the signature of Michael Willner and Joyce Winner.
The notary certification on the DR6 appears to be signed by Attorney Melish. Attorney Melish
apparently certified, as a notary public, that On this 30th day of July 2013, before me personally
appeared Joyce C Milner he/she executed and acknowledged said instrument to be his/her
free act and deed. Since Joyce Willner is under a full guardianship, without limitation, she does
not have the legal capacity to execute such a document.
Clearly, Joyce Willner does not have the mental capacity that would allow anyone to
attest that she executed and acknowledged said instrument to be his/her free act and deed A
person under a guardianship, without limitation does not have the legal capacity to make his or
her own decisions; as set out in RIGL § 33-15-2, Petition for appointment of a limited guardian
or guardian. This statute sets forth the standards upon which a person under guardianship may
make their own decisions: RIGL § 33-15-2 (2) (ii) the proposed ward needs a full guardian to
provide assistance with decision making in all areas (emphasis added). Joyce Willner has been
placed under a full guardianship, without limitation and is therefore incapable of making her own
decisions pursuant to RILL § 33-15-2 (2) (ii).
Attorney Melish has violated the Standards of Conduct for Notaries Publ"c in the Ste of
Rhode Island and Providence Plantations, (See Sections 4 and 5) as published by the Rhode
Island Secretary of State, which state in part: that the notary may not notarize the signature of
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the principal if the principle has a demeanor that causes a notary public to have a compelling
doubt about whether the principal knows the consequences of the transaction or documents
requiring the notarial act. The order and findings of the South Kingston Probate Court, that
Joyce Winner needs a full guardian were not appealed. If the probate court determined that
Joyce Wiliner retained decision making capacity in certain areas, it would have appointed a
limited guardian to make decisions in areas that Joyce Wiliner needed assistance. Since the court
did not place any limitations on the guardian, Joyce Winner requires a guardian, without
limitations and is therefore legally incapable of having the ability to sign legal documents under
oath. Since Joyce Wiliner lacked the mental and legal capacity to understand the consequences
of the documents that she was asked to sign, The regulations were enacted in order to prevent
this exact type of action occurring.
The probate record reflects the parties participating in the August 15, 2013 Probate Court
hearing were Kurt and Yaffa Wiliner through their attorney, RJ Connelly, HI; Joyce Winner
through her Attorney, Laura Krohn; Michael Wiliner, Guardian, through his attorney, Attorney
Melish; and the Estate of Joyce Wainer by its attorney, Attorney Melish. During the
proceedings on August 15, 2013, the Probate Judge stated, in part:
"A decree of a probate court removing an executor, administrator, or guardian shall have
effect not withstanding an appeal, until otherwise determined on appeal. So you can't
move, so Mr. Wiliner can take no action, and is so ordered not to take any action until
Justice Rogers, or whoever is sitting in Washington County, or any Superior Court judge
says otherwise. And I'll look at it as contempt if he takes any steps. So as of this time,
which is, I'm looking at 12:10 on August 15, Mr. Wiliner is effectively removed and take
no further action."
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The South Kingston Probate Court issued an order on August 19, 2013 granting the
successor guardian, Yaffa Willner the authority to dismiss the Family Court Divorce action.
This order was not appealed to the Superior Court.
Attorney Melish was present on September 12, 2013, in the Family Court and argued
against the dismissal of the Divorce Complaint. Notwithstanding the dismissal of the Divorce
action and the directive of the South Kingston Probate Court, Attorney Melish filed a Motion in
the Family Court on September 12, 2013, in order to appoint a guardian ad litem for Joyce
Willner. The motion was signed by attorney Melish as "Plaintiff, by her attorney". The Divorce
action was dismissed on or about September 12, 2013.
Representation of more than one client pertaining to the same matter is allowed in
certain situations. However, this representation requires the informed consent of all parties.
Since Joyce Willner is under a guardianship without limitation, she cannot give her informed
consent (See Rules of Professional Conduct Rule 1,7 which states in part that (a)... a lawyer
shall not represent a client if the representation involves a concurrent conflict of interest). Since
Michael Willner has his own agenda, as shown by tiling a divorce, and allegations that his
behavior is inappropriate as it pertains to the ward, he is unable as the guardian to give such
consent for dual representation. It would be self-serving and unethical if Michael Willner were
allowed to waive this conflict since his actions as the Guardian are being challenged as not being
in the best interest of the ward. Informed consent must be in writing and understood by the
potential client.
The actions of Attorney Melish in representing the Estate, Michael Whither, the Guardian
and the ward, Joyce Winner create a conflict in the litigation. It is alleged in the removal petition
that Michael Willner in his capacity as guardian has taken action adverse to the ward; there is a
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clear conflict as it relates to the litigation. (See Rules of Professional Conduct Rule 13
Commentary note 22, which states in part Paragraph (b) (3) prohibits representation of opposing
parties in the same litigation, regardless of the clients' consent). Based upon this rule Joyce
Winner could never have given her consent, nor could her Guardian have given it for her.
If Michael Winner and Attorney Melish wanted to continue with the divorce action, the
proper procedure would have been to request a stay of the order of the Probate Court or the
permission of the Superior Court. Instead, they took it upon themselves to act outside of the
court order and without the consent of the Successor Guardian. Their action should not be
rewarded by this court; it should be met with contempt. Attorney Melish has clearly placed
himself in a precarious position that this court needs to put an end to.
4. The Court should not approve the home health care plan presented by Michael
Willner.
Approximately fourteen months ago, Michael Winner took it upon himself to prepare a
home health care plan. This was completed without consulting with the treating physician, Dr.
Shahzad Khurshid or determining the assets of Joyce Willner. Michael Willner is neither a
doctor, nor a licensed health care provider, nor has he had any medical training. The proposed
plan is contrary to the best interest of Joyce Wilber. Joyce Willner has been evaluated by
several medical providers and has been found to not be a candidate for the implementation of
home health services. Joyce Willner has several serious medical problems that require the
highest level of medical care. She suffers from dementia, chronic anemia, is blood transfusion
dependent as a result of the anemia (Roberts Health Centre record at page 4 of 72), requires
nearly daily testing of her blood, is a risk for falls, and is unable to eat a regular diet. Since
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Joyce Winner has been a resident of Roberts Health Care Centre since May of 2012, she has
required the highest level of care. The plan proposed by Michael Winner is not in the best
interest of Joyce Winner. This Court must give this type of action requested the highest level of
scrutiny. See In re Estate of Griggs, 121206 RI SUP, 2005-949 which states in part The
determination of what is or is not in the "best interests" of a person who stands before a court
requires the exercise of sound judicial discretion and necessarily involves a fact-based inquiry.
See e.g. In re Kayla N., 900 A.2d 1202 (R.I. 2006). Rhode Island has a settled judicial tradition
of engaging in an examination of all relevant circumstances when determining what is in a
person's "best interests", particularly when that person is impaired or otherwise incapable of
making his or her own decisions because of age or infirmity. See e.g., Andreozzi v. Andreozzi,
813 A.2d 78, 82 (R.I. 2003); In re Jane Doe, 533 A.2d 523 (R.I. 1987).
The plan proposed by Michael Willner proposes that Joyce Willner be returned home and
that Michael Willner act as a caregiver in the marital domicile. Evidently, this was one of the
reasons that he requested that the Family Court remove his father, Kurt Milner from the home.
In the alternative, Michael Wainer proposed that Joyce Willner move in with her neighbors. The
neighbors do not have any health care training and this would interfere with the marital
relationship between Mr. and Mrs. Willner. Clearly Mr. Winner would not be able to spend
quality time with his wife is she were living in a neighbor's home. This placement would further
the agenda of Michael Willner by separating his parents in order to punish his father. The
records from Roberts Health Centre indicate that Kurt Willner spends quality time with his wife
Joyce Willner. The record indicates that Kurt Willner remains attentive to his wife (Roberts
Health Centre record at page I of 72, 2 of 72, and 10 of 72). Joyce Winner has acclimated
herself to the routines at Roberts Health Center. She is engaged in daily activities, received a
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special diet, and had befriended several staff members to the point that she occasionally eats her
meals at the nurses' station. Based on her having dementia, it would be unfair to her to change
her residence at this point in time. A change in residence would only disrupt her life even further
and would not meet the level of medical care that she needs.
Michael Winner has made representations on several occasions that his mother, Joyce
Willner has expressed a desire to return home. This statement, if true, is a result of coercion by
Michael Willner. On October 1, 2013, Michael Winner was visiting with Joyce Willner at the
Roberts Health Centre. During this visit, Michael Willner was observed videotaping his mother,
prompting her to say the words I want to go home. This was witnessed by Karen Golish, a
registered nurse at Roberts Health Centre. This was documented in Joyce Wiliner's chart.
(Roberts Health Centre record at page 15 of 72). The medical record from Roberts Health
Centre also indicates that Joyce Willner becomes agitated after her son visits, but calms when her
husband or daughter are present. (Roberts Health Centre record at page 19 of 72). Michael
Willner has developed a pattern of agitating his mother and making inappropriate decisions on
her behalf. The medical record from Roberts Health Centre also indicates that on June 1, 2013,
son has also been noted to be lying with his mother in bed, and has been asked to leave, when
there late during 3"1 shift, early AM hours. (Roberts Health Centre record at page 25 of 72). The
medical record from Roberts Health Centre also indicates that on May 12, 2013 staff noticed son
was lying next to his mother in a twin bed. He was directed to leave the facility. (Roberts
Health Centre record at page 31 of 72). Michael Willner denied in his deposition that he had
ever climbed into his mother's bed.
The medical record from Roberts Health Centre also indicated that Michael Willner has
removed his mother from the facility against medical advice. (Roberts Health Centre record at
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page 32 of 72), This shows his inability to come to terms with the fact that his mother is ill and
needs medical care. His actions are clearly placing Joyce Willner at risk. If Joyce Willner were
in the community as Michael Willner desires, he would have the sole ability to make decisions
for her, even if they are against medical advice, and not in the best interest of his mother. A
stable setting, such as Roberts Health Care Centre is an appropriate residence in order to protect
the wellbeing of Joyce Winner.
Since Michael Willner is neither a licensed attorney in Rhode Island, nor a health care
provider, his motion to implement a home health care plan is without merit. Even if he were
allowed to propose the plan, he has not taken all of her financial, health and social issues into
account and therefor the plan would not be in her best interest. If this court determines that he
has the right to propose a home health care plan, the plan presented is stale and outdated, Due to
the progress of her dementia, the medical condition of Joyce Willner has declined over the past
fourteen months. The plan indicates that Michael Willner will provide approximately fourteen
days of care in the Willner home with additional help from his sister Yaffa Winner. Since his
request to implement the plan, he has assisted Attorney Melish in filing a divorce and due to his
actions, has become estranged from his father and sister. Clearly the plan in no longer viable.
5. Michael Winner was provided wills a court order to access Joyce Winner's assets
and failed to do so as required by the Rhode Island General Laws.
Michael Winner was given a court order, pursuant to his appointment as the temporary
guardian, to make a determination of the assets of Joyce Willner. The Probate Court specifically
provided him with an order at the time of his appointment as the temporary guardian, so that he
19
Willact WPI3-0400
could determine her financial condition. He failed to carry out his fiduciary duties in making this
inquiry and filing a required inventory within thirty days of his appointment as the Temporary
Guardian as required by RIGL 4 33-1519, which states in part (a) Within thirty (30) days after
his or her appointment, or any longer time that may be allowed by the probate court, a
temporary guardian, guardian, or limited guardian shall return to the probate court, under oath,
an inventory and appraisement of all the real and personal property of his or her ward Michael
Winner failed to determine the assets of Joyce Willner and failed to file an inventory from the
time of his appointment on December 14, 2012 until his removal on August 15, 2013. Clearly,
this was sufficient time to make such an inquiry and the failure to do so is contrary to the best
interests of his ward.
H. Arguments in support of the Appellee's in opposition to the Second Appeal - Claim of
Appeal by the Estate of Joyce C. Willner
The wording and parties identified in the second appeal filed in the Probate Court (titled
Amended Claim of Appeal) are substantially different from the Amended Claim of Appeal filed
in the Superior Court. The Probate Court claim of appeal lists Michael Wiliner, Guardian as the
party, while the Superior Court claim lists the Estate of Joyce Willner as the party claiming the
appeal. Since the Estate of Joyce Wiliner did not file a notice of claim of appeal with the Probate
Court, the Estate was not the proper party to file the second claim of appeal with the Superior
Court. It would appear that the Guardian did not perfect the appeal pertaining to the August 15,
2013 hearing, due to his failure to file an amended reason for appeal with the Superior Court.
20
WV13-0400
1. The remaining issues presented in the Amended Reasons of Appeal are time bared.
Attorney Melish took it upon himself to file a second appeal Although he may have
titled the appeal as an amendment, it was clearly a new appeal filed by a different entity, the
Estate of Joyce Winner. The new appeal was filed by the Estate of Joyce C. Winner, not by the
Guardian or some other interested person. In order to determine who may file an appeal, we
must look to the statute that sets forth the procedure for taking such an appeal. The plain
language of the statute limits to authority to file a claim of appeal to a person only. RIGL § 33-
23-1 states in part; (a) any person (emphases added) aggrieved by an order or decree of a
probate court (hereinafter "appellant"), may, unless provisions be made to the contrary, appeal
to the superior court. Rule 17 of the Rhode Island Superior Court Rules of Civil Procedure
provides guidance as to a proper party for taking an appeal. Rule 17 states in part (a) Real Party
in Interest. Every action shall be prosecuted in the name of the real party in interest. An
executor, administrator, guardian, may sue in that person's own name without joining the party
for whose benefit the action is brought. The Estate of Joyce Willner is not a person and therefore
cannot take an appeal. Pursuant to Rule 17, the appeal shall be taken in the name of the real
party in interest. The Superior Court Rules of Practice prescribe the proper parties relating to a
Probate Court appeal. Rules of Practice 1.7 states in part Probate appeals shall be entitled by
the appellant's attorney under the name of appellant against appellee The reasons of appeal
shall contain the names and residences of all the appellants .... This is not discretionary on
behalf of a party or the Court. In this matter the proper party would have been appellant, Joyce
Whiner or appellant Michael Winner Guardian. Clearly, it could not be a non-entity, the Estate
of Joyce Willner.
21
Milner WP13-04130
In filing the first appeal of the Probate Orders of July 16 and July 25, 3013, Attorney
Melish entered his appearance with the Superior Court on August 1, 2013, for Michael Water,
Guardian for the estate ofJoyce Willner. This Court must look to the attorney of record in order
to determine whom she or he represents. It is clear that Attorney Melish only represents Michael
Winner, Guardian for the estate of Joyce Winner. Attorney Melish never enter his appearance
for the Estate ofJoyce Willner with the Superior Court.
The Amended Claim of Appeal filed with the South Kingstown Probate Court alleges
that the Guardian is aggrieved by an order of the order or decree entered. The Amended Reasons
for Appeal filed in the Supreme Court were filed by the Estate ofJoyce Willner, a non-person.
Since the Estate of Joyce Willner did not file a required claim of appeal with the South
Kingstown Probate Court, relating to the August 15, 2013 hearing, it does not have standing to
perfect an appeal.
The proper party for taking an appeal in this matter would be the guardian, the ward, or
some other real party in interest. Attorney Melish specifically alleges in the Amended Reasons
for Appeal filed with the Superior Court (the second appeal) that the Appellant is; The Estate of
Joyce Winner. If he had intended this to be an amendment to the initial appeal, he would have
had to bring it on behalf of the Guardian that had filed the first appeal. The amended reasons for
appeal are based upon a Probate Court hearing that occurred on August 15, 2013 and therefore is
based upon a new set of facts not related to the first appeal. Since the appeal of the order,
pertaining to the August 15, 2013 hearing, was not filed in the Superior Court by a real party in
interest, the same person who filed the Claim of Appeal with the Probate Court, it is time bared
and should be dismissed. R1(L Section 33-23-1. sets forth a strict two-step procedure for filing
an appeal from an order of the Probate Court. Section (a) (1) requires that within twenty (20)
22
Winner WPI3-0400
days after execution of the order or decree by the probate judge, the appellant shall file in the office of the clerk of the probate court a claim of appeal to the superior court and a request for a certified copy of the claim and the record of the proceedings appealed from, and shall pay the clerk his or her fees therefor.
Section (a) (2) requires that within thirty (30) days after the entry ofthe order or decree, the appellant shall file in the superior court a certified copy of the claim and record and the reasons of appeal specifically stated.
Michael Willner, as Guardian was listed as the appellant in the notice of appeal that was filed with the Probate Court. Michael Willner, as the Guardian and appellant, did not file a certified copy of the identical claim with the Superior Court as required by RIGL § 33-23-1. The claim in the Superior Court was filed by the Estate of Joyce Wainer. It would appear that the Guardian did not perfect the appeal pertaining to the August 15, 2013 hearing, due to his failure to file an amended reason for appeal with the Superior Court.
MU. 33-234. (e) further states that the deadline of subsections (a)(1) and (a)(2) of this chapter are jurisdictional and may not be extended by either the probate court or the superior court, except for purposes of extending the time to file the transcript under subsection (c). See In re: Estate of Philip Bray, RI SUP No. PP/06-2237 (2006).
Since the procedures set forth in taking an appeal have not been adhered to, there are no issues for this court to decide as they pertain to the August 15, 2013 hearing. This Court must dismiss the second appeal. In the event that this court determines that the second appeal should stand, the reasons for the appeal are contrary to law as set forth below. •
23
Winner WP13.0400
2. What are the notice requirements for a pending matter that has led to exigent action
being required, due to the actions of the party claiming lack of proper notice?
In September 2012, Michael Willner, through his Attorney David Reilly filed a motion to
waive the statutory notice requirement for the appointment of Michael Winner as the Temporary
Guardian. Michael Willner's allegation for waiving the statutory notice requirement in
appointing a temporary Guardian because it was an emergency. Clearly, Michael Winner has set
the precedent in this case, that statutory notice can be waived in an emergency situation. Surely,
the Court having the authority to shorten the notice requirement for the appointment of a
temporary guardian, an action that deprives an individual of certain inalienable rights, it has the
authority to shorten the notice requirement of the removal of a guardian in extreme and
emergency situations.-
Since the hearing date on the removal petition had been changed several times without an
appeal or objection to notice, the parties assented to all changes in the scheduling of the hearing
for the removal of the Guardian.
The Court is within its right to dispense with notice pursuant to RIGL 8-9-9, which
states in part that every probate court shall have the power to follow the course of equity insofar
as necessary to fulfill the mandates of title 33 of General Laws. The Court's power to shorten
the notice requirements in certain time sensitive cases is also evident under the RIGL § 33-15-
17.1(a) which states that in part in the case of a petition for the appointment of a temporary
guardian, such fourteen day notice shall be reduced to five days, unless a shorter period is
ordered by the court. (emphasis added) A miscellaneous petition was filed on August 14, 2013
requesting that the hearing date for the pending removal petition be accelerated to August 22,
24
Williner WPI3-0400
2013. Upon review of the allegations contained in the miscellaneous petition, including a copy
of the divorce complaint requesting the removal of Kurt Willner from the marital home, the
Court convened an emergency hearing for August 15, 2013. It is undisputed that the South
Kingston Probate Court provided notice to all Attorneys of record. Such short notice is
appropriate in an emergency.
3. The South Kingston Probate Court retained jurisdiction over a portion of the
Guardianship while an appeal is pending.
Notwithstanding an appeal of an order of the Probate Court, the Probate Court retains
jurisdiction over a portion of the Probate matter pursuant to: RIGL§ 33-23-7, which states in
part; A decree ofa probate court removing .. guardian shall have effect; notwithstanding an
appeal ... The probate court may in this case appoint a successor to the person removed.
Further guidance is provided in MI, 6 33-23-3. which states in part, If an appeal is claimed
from a decree of a probate court granting letters... of guardianship, the guardian, on giving
bond as by law required .... shall apply as if no appeal had been claimed
The appealing of an order from the Probate Court does not nullify all of the orders of the
Probate Court. This Court must defer to the plain language of RILL 6 33-23-3 and & 33-23-7 in
determining the powers retained by the Probate Court during the pendency of an appeal. Bentsen
v. Finn, 051706 RI SUP, PP02-566, citing Sindelar v. Leguia, 750 A.2d 967, 970 (R.I. 2000)
states in part, this_Court must be mindful of the long tradition of legal authority that prohibits a
court of review from engaging in statutory construction if the statute before it is clear and
25
Willner WPI3-0400
unambiguous. This Court has clear guidance from the statutory provisions relating to the powers
retained by the Probate Court when an appeal has been filed.
The successor guardian remains under the supervision of the Probate Court. McSolev v.
McSoley 186 A.2d 573 (R.1. 1962) states in part; If then, we were to agree with appellants'
contention that the probate court had lost such jurisdiction pending their appeal the decedent's
estate would be deprived of the very protection which the policy of our probate law was intended
to provide. Clear the Probate Court had a duty to insure the continued protection of the ward and
the proper administration of her estate. This cannot be clearer in light of the fact that Michael
Willner and Attorney Melish filed a Divorce Complaint requesting that Joyce Willner be
divorced from her loving husband. Had the Probate Court not retained jurisdiction, the Willnees
would now be divorced.
The South Kingston Probate Court issued an order on August 19, 2013 granting the
successor guardian, Yaffa Winner the authority to dismiss the Family Court Divorce action. The
order of August 19, 2013 was a result of the hearing on August 15, 2013 and addressed the main
issue that led to the removal of Michael Willner as the guardian, the filing of a divorce action.
The August 19th order was not appealed to the Superior Court. Since the Appellants did not
appeal the order granting certain powers to the successor guardian, the August 19, 2013 order is
the law of the Probate Court. Appellants have failed to challenge the actions of the Successor
Guardian in carrying out her fiduciary responsibilities, as well as the Probate Courts continued
jurisdiction (the August 19, 2013 order) to act and therefore have waived any right to address the
circumstances relating to the continued jurisdiction of the Probate Court. if the Appellants
disagreed with the Probate Courts ability to grant powers to the successor guardian, they would
26
Winner WPI3-0400
have included it in the amended reasons for appeal that were filed in this Court on August 20,
2013, just as they did with the August 15, 2013 order.
4. Michael Willner must be removed as the Guardian of Joyce Milner
Michael Willner's appalling behavior culminated in his filing a divorce action,
purportedly on behalf of Mrs. Willner, was yet another blatant action to disregard and ignore the
Orders of the South Kingstown Probate Court. Pursuant to the Probate Order dated July 19,
2013 Attorney Melish was allowed to enter his appearance on behalf of Michael A. Willner only.
Attorney Melish was specifically Ordered and was prohibited from representing either the Ward
or the Estate of Joyce C. Winner. On or about July 31, 2013, Michael Winner with the
assistance of Attorney Melish filed a Divorce action with the Washington County Family Court,
with Attorney Melish listed as the "attorney for Joyce C. Willner". Attorney Melish also filed a
motion for temporary orders requesting that Kurt Willner be removed from the marital domicile.
The South Kingston Probate Court on August 15, 2013 informed Attorney Melish:
"A decree of a probate court removing an executor, administrator, or guardian shall
have effect not withstanding an appeal, until otherwise determined on appeal. So you
can't move, so Mr. Willner can take no action, and is so ordered not to take any action
until Justice Rogers, or whoever is sitting in Washington County, or any Superior Court
judge says otherwise. And I'll look at it as contempt i fhe takes any steps. So as of this
time, which is, I'm looking at 12:10 on August 15, Mr. Willner is effectively removed and
take no further action."
The South Kingston Probate Court issued an order on August 19, 2013 granting the
successor guardian, Yaffa Willner the authority to dismiss the Family Court Divorce action.
27
Winner WP13-0400
This order was not appealed to the Superior Court. The Divorce action was dismissed on
September 12, 2013. Notwithstanding the dismissal of the Divorce action and the directive of
the South Kingston Probate Court, Michael Winner assisted in the filing of a motion in the
Family Court on September 12, 2013, in order to appoint a guardian ad litem for Joyce Winner.
This motion was denied by the Family Court.
If Michael Willner and Attorney Melish wanted to continue with the divorce action, the
proper procedure would have been to request a stay of the order of the Probate Court or the
permission of the Superior Court. Instead they took it upon themselves to act outside of the court
order. Their action should not be rewarded by this court; it should be met with contempt.
Due to his inappropriate behavior, Michael Winner has been restricted in his interactions
with Joyce Willner. This Court must take into account the actions of Michael Winner in
determining if he is acting in the best interest of Joyce Winner. In re Estate of Griggs, 121206
RI SUP, 2005-949 which states in part the determination of what is or is not in the "best
interests" of a person who stands before a court requires the exercise of sound judicial
discretion and necessarily involves a fact-based inquiry. See e.g. In re Kayla N., 900 A.2d 1202
(R.1.2006). Rhode Island has a settled judicial tradition of engaging in an examination of all
relevant circumstances when determining what is in a person's "best interests", particularly
when that person is impaired or otherwise incapable of making his or her own decisions because
of age or infirmity. See e.g., Andreozzi v. Andreozzi, 813 A.2d 78, 82 (R.I. 2003). The medical
records from Roberts Health Centre indicate that Michael Willner removed Joyce Willner from
the nursing home on at least two occasions against medical advice. (Roberts Health Centre
record at page 32 of 72). The records from Roberts Health Centre indicate that Joyce Milner
becomes agitated after her visits with Michael Milner. (Roberts Health Centre record at page 19
28
Iner WP13-0400
of 72). Michael Winner was observed by nursing staff lying in a twin bed with his mother late at
night. (Roberts Health Centre record at page 25 and page 31 of 72). Michael Willner was
observed by medical staff videotaping Joyce Wainer and coaching her to state that I want to go
home. (Roberts Health Centre record at page 15 of 72). Michael Winner has produced several
videos of Joyce Willner and has posted those videos on You Tube and on the savejoyce.com
webpage. At least one of the videos has Joyce Willner partially nude with her breast covered
with a napkin and her top pulled down over her shoulder. A second video has Michael Willner
berating his mother and confusing her in order to get her upset with her husband and daughter.
Another video has Michael Willner informing his mother that if she remains in the nursing home
and if she continues to take prescribed medication that she will die in about two weeks. He has
even gone as far as requesting donations from the public by using the www.savejoyce.com
webpage. Michael Willner has been restricted to only visiting Joyce Willner in the common
areas. Notwithstanding the directive to discontinue videotaping his mother, he has continued to
do so and has taken and posted a video of Joyce Willner as recently as the end of March 2014.
He may or may not have a right to video his mother for his own reasons; however he is violating
her dignity and right to privacy by posting the videos online for the whole world to see. Clearly
this is not in the best interest of Joyce Willner.
The actions by Michael Willner should be considered contempt of court and clearly are
grounds for the removal of a guardian. The Rhode Island General Laws state that the court shall
remove any limited guardian, guardian, or conservator that have not fulfilled their duties. The
actions of Michael Willner, including utilizing a member of the Rhode Island Bar (Attorney
Melish) in order to circumvent the valid orders of the Probate Court are grounds that would
require the removal of Michael Willner as the guardian. Additionally Michael Winner has taken
29
Winner WP/ 3-0400
actions, as outlined above, that are not in the best interest of the ward, Joyce Winner in violation
of the standard set forth in RIGL§ 33-15-18 (a) (1) states, in pertinent part, "that the court shall
remove any limited guardian, guardian or conservator...upon finding that [he] has not
fulfilled...the duties of the appointment as forth by the order itself and/ or the ...guardianship
law." Clearly Michael Willner does not have the requisite ability to fulfill his duties as guardian
with the best interest of Joyce Willner in mind.
III Findings and Decision of the South Kingstown Probate Court
Although this is a trial De Novo, this Court may refer to the Probate Record in order to
guide itself in ruling on this matter. This Court should take notice of the Probate Court findings
of fact and decision. RILL 6 33-23-1 states in part, that the findings of fact and/or decisions of
the probate court may be given as much weight and deference as the Superior Court deems
appropriate. See Bentsen v. Finn, 051706 RI SUP, PP02-5663 (2006) and In Re: Estate Of
Anthony Getnrna RI SUP, No. KP-08-0828 (2009).
Since this Court will be making a determination as to the best interest of Joyce Willner,
an elderly woman with Alzheimer's disease, it should take into account as much information as
possible in order to come to a fair and just decision. In re Estate of Griggs, 121206 RI SUP,
2005-949 which states in part The determination of what is or is not in the "best interests" of a
person who stands before a court requires the exercise of sound judicial discretion and
necessarily involves a fact-based inquiry. See e.g. In re Kayla N., 900 A.2d 1202 (R.I. 2006).
Rhode Island has a settled judicial tradition of engaging in an examination of all relevant
circumstances when determining what is in a person's "best interests", particularly when that
30
Appellee Kurt Willner & Yaffa Winner
cir Attorney,
Witinq WP13.-0400
person is impaired or otherwise incapable of making his or her own decisions because of age or
infirmity. See e.g., Andreozzi v. Andreozzi, 813 A.2d 78.82 (R.I. 2003).
The inappropriate actions of Michael Willner go beyond the facts and issues presented to
this Court. The Probate Court was made aware and viewed a pattern of inappropriate actions by
Michael Willner. A review of the transcript and orders of the Probate Court are necessary in
order to determine if Michael Winner is truly acting in the best interest of Joyce Winner.
Alan M. Barnes, Ems. ,Bar #4263 Connelly Law Offices, Ltd. 3'72 Broadway Pawtucket, RI 02860 (401) 724-9400
April 4, 2014
31
STATE OF RHODE ISLAND SUPERIOR COURT WASHINGTON, SC
IN RE: ESTATE OF JOYCE C. WILLNER, C.A. NO: WP13-0400 by and through her GUARDIAN
JOINT STATEMENT OF UNDISPUTED FACTS
1. Joyce Willner is the wife of Kurt Willner.
2. Kurt and Joyce Wiliner were married on April 12, 1948 in the Country of Israel.
3. Kurt and Joyce Willner purchased their home on Indian Lake in South Kingstown
Rhode Island in 1968.
4. Joyce Willner is the mother of Michael Willner and Yaffa Winner.
5. Michael Winner and Kurt Willner are currently estranged from each other.
6. Michael Willner and Kurt Winner are no longer on speaking terms.
7. Michael Willner and Yaffa Whiner are currently estranged from each other.
8. Michael Willner and Yaffa Willner are no longer on speaking terms.
9. Joyce Willner is currently residing at Roberts Health Centre in North Kingstown,
Rhode Island.
10. Joyce Wiliner has been residing at Roberts Health Centre since approximately May 9.
2012.
11. Joyce Willner is currently receiving Medicaid benefits from the State of Rhode Island.
12. Kurt Winner is incapable by himself of caring for his wife, Joyce Winner, due to his
advanced age and poor physical health.
13. A Guardianship Petition was filed on September 24,2012. by Michael Winner in the
South Kingstown Probate Court seeking to become the Guardian of his mother, Joyce
C. Willner, d.o.b. 9/12/25 based on a DMAT prepared by Dr. Andrew S. Rosenzweig. a geriatric
psychiatrist.
14. On September 27,2012, Michael Willner was appointed Temporary Guardian of his mother
over the objection of Kurt Wainer, the spouse of the Ward.
15. On or about November 26, 2012, a deposition was taken of Andrew Rosenzweig, MD, MPH on
behalf of Kurt Willner.
16. A Guardian Ad Litem was appointed by the Probate Court and after conducting an
investigation filed a report on November 292012. recommending that Michael Willner be
appointed Permanent Guardian and that Joyce Willner be allowed to return to her home or to her
neighbor's home from the nursing home at which she was residing with
round the clock supervision.
17. On December 14, 2012, Michael Willner was appointed Permanent Guardian of the person
and estate of Joyce C. Willner.
18. No appeal was pursued to the December 14, 2012 Decision by the Spouse or any other
interested party.
19. A proposed Home Health Plan of Care was prepared by Michael Willner for Joyce Willner
dated January 3., 2013
20. On or about February 14, 2013, a quitclaim deed was recorded in the land evidence records of
South Kingstown, which was signed by Kurt Willner. The deed transferred the property at 21
Tomahawk Trail, South Kingstown, RE to Yaffa Willner for one Dollar, and reserved a life
estate interest in the property of Kurt Willner.
21. The Guardian filed motions seeking to transfer his mother to a less restrictive environment
than the nursing home, to wit: either to her home or to her next door
2
neighbor's home; and to have access to the Ward's assets and income to fulfill his fiduciary duty as Guardian.
22. The Probate Court denied the Guardian's home care plan and his effort to access his mother's assets and income.
23. The Probate Court also ruled that the Estate Attorney could not represent both the Guardian and the Ward, but neither could the Guardian represent himself pro se.
24. On or about April 25, 2013 a Removal Petition was filed in the Town of South Kingstown Probate Court requesting the removal of Michael Willner as the guardian of Joyce Wiliner.
25. On or about July 9, 2013, Attorney H. Jefferson Melish filed an Objection to the Removal Petition.
26. The Objection to the Removal Petition indicated a notice of hearing for July 18, 2013. 27. The removal petition was originally scheduled for a hearing before the South
Kingstown Probate Court for July 18, 2013, and on that date was rescheduled to September 19, 2013.
28. A Miscellaneous Petition attempting to schedule the removal petition was filed on August 14, 2013 requesting an August 22, 2013 hearing date.
29. On August 15, 2013, the South Kingstown Probate Court convened a special session hearing regarding the matter ofthe Estate ofJoyce Willner.
30. At some point on August 14, 2013 prior to the above referenced hearing on August 15, 2013, the South Kingstown Probate court was made aware of the pending divorce action entitled Joyce C. Willner v. Kurt Winner W 13-0271.
31. On the afternoon of August 14, 2013, the office of Attorney H. Jefferson Melish and
3
the office of Attorney RJ Connelly, HI were notified via telephone and by email, by a
representative of the South Kingstown Probate Court, that a hearing would take place
on August 15, 2013.
32. Attorney H. Jefferson Melish participated in the hearing on the morning of August 15,
2013 by telephone from out-of-state.
33. Attorney H. Jefferson Melish notified Michael Wiliner via telephone of
the hearing that was to take place on August 15. 2013 the morning of the hearing.
34. At the August 15. 2013 hearing of the Probate Court of South Kingstown, Attorney
Melish was allowed to participate, via telephone, and voiced his objection to the
Court's lack of jurisdiction over a matter whose appeal had already been perfected in
the Superior Court,'-and to the violation of notice requirements for the Guardian and the
Ward and the lack of sufficient notice.
35. A transcript of the August 15.2013 Special Session Hearing of the South Kingstown
Probate Court was made.
36. On or about August 15, 2013 the South Kingstown Probate Court issued an order
removing Michael Wiliner as the guardian of Joyce Willner and appointed Yaffa
Willner as the successor guardian.
37. Joyce Willner needs a permanent guardian.
38. Joyce Willner has been determined to be unable to make her own medical decisions.
39. Joyce Winner requires 24 hour supervision.
40. Kurt and Yaffa Willner indicate Joyce Willner has income which includes a net
monthly Social Security payment ofS923.00 per month, annuities of approximately
$892.17 per month and German Reparations Payments of S1 ,282.00 received
periodically, presumably on a quarterly basis.
4
41. Joyce Winner does not have a Representative Payee appointed by the Social Security
Administration.
42. The 2013 tax assessed value of the property at 21 Tomahawk Trail, South Wakefield,
RI is $358, 900.00.
5
CERTIFICATION
1. hereby certify that on April 2014; a copy of the foregoing was sent by regular U. ail, postage prepaid to:
FL Jefferson•Mash, Esquire 74 Main Street Wakefield, RI 02879
Anne M. Mulready, Esquire Rhode Island Disability Law Center, Inc. 275 Westminster Street, Suite 401 Providence, RI 02903