Sacramento judge rejects dying man’s last-minute will

A Sacramento Superior Court judge refused Tuesday to validate a hotly contested will that a prominent lawyer claimed to be the last wishes of a dying friend. The will would have given all but a small portion of Joseph Herb O’Brien’s estate to a mutual friend.

Judge Christopher E. Krueger, in a tentative ruling, also did not uphold any allegations of undue influence or fraud that had been lodged by the contestants’ lawyers in the legal aftermath of O’Brien’s death on March 12, 2011, at a Greenhaven nursing home.

Krueger said the will filed on behalf of local veterinarian Kenneth Pawlowski did not meet the standard of “clear and convincing evidence” that O’Brien was of a sound mental state when he signed his mark on a testament that attorney Kenneth L. Rosenfeld said he took from the dying man in the last half-hour of his life.

“Indeed, the evidence points to the conclusion that Mr. O’Brien was extremely weak and actually in the process of dying,” Krueger wrote.

The judge said there was significant evidence that O’Brien wanted to change the will that he had left in a trust – worth an estimated $611,000, according to court documents – that provided for a stepson with drug problems and a criminal record. But the judge said that there was a “very significant doubt on Mr. O’Brien’s capacity at the time of execution.”

“Under those circumstances, this court concludes that petitioner has failed to show by clear and convincing evidence that (O’Brien) intended the instrument to be his will at the time he signed it. The court therefore DENIES to admission of the will to probate,” Krueger wrote.

The judge said that in reaching his decision, “the court does not find that anyone exercised undue influence over Mr. O’Brien.” Krueger said that testimony from Pawlowski and others showed that O’Brien wanted to write his stepson, Glenn Scott Slattery, out of the lion’s share of the will.

“His friends attempted to help him carry forward what they believed to be his wishes for the estate. But the proponent of the will cannot show by clear and convincing evidence that the will in this case was intended by the decedent to be his will at the time he put his mark on it,” Krueger wrote.

The will, handwritten by Rosenfeld and marked only by an “X” that the lawyer said came from O’Brien, was filed in May 2011. It was challenged four months later by attorneys who represented O’Brien’s brother, James Bryan, of Melbourne, Fla., and the decedent’s stepson, Slattery, 44, who is serving time in prison for vandalism, terrorist threats and other charges related to a dispute with an ex-girlfriend over his rights to visit their daughter.

“It’s a win for us – justice prevailed,” said Bryan’s attorney, Thomas M. Papez, of Reno. “The court in my opinion correctly evaluated the evidence.”

Even though Krueger’s ruling was a tentative decision, Papez said, “I’m confident because of the legal standard that the court quoted that the decision will hold up.”

John Kessler, the Oakland lawyer who represented Slattery, summed up his thoughts on the verdict in two words:

“Well, hallelujah,” he said.

Pawlowski could not be reached for comment, and his attorney, Jerry L. Guthrie, did not return phone calls to say what action he intends to take, if any, in light of the tentative ruling.

Rosenfeld, who was not a party in the case and contended that he only took a dying friend’s final request, said in a statement, “It’s unfortunate that this matter has become so sensationalized” and that “the ruling supports what I’ve stated throughout this matter. I was a mere witness.”

“More important, I was a friend to a kind man that in his last moment of life asked me to carry out his last request. I did my best to comfort my friend. As the court stated, there was no undue influence and the evidence showed that Mr. O’Brien wanted to change his will, but his health betrayed him.”

Krueger’s decision Tuesday came in a second trial on the O’Brien will. Last year, he ordered the will submitted into probate. He reversed himself, however, and ordered a new trial after the contestants’ attorneys presented evidence that O’Brien lacked the mental capacity to change his will.

One new piece of evidence was information that Pawlowski, on a referral from Rosenfeld, had retained the services of a forensic psychologist, Christopher Heard, to evaluate O’Brien two days before his death. Pawlowski has denied in previous testimony that he had ever taken any steps to have O’Brien evaluated. Rosenfeld said he had no knowledge of O’Brien’s competency.

At the second trial, Heard, who later died in a residential fire of undetermined origin, testified that O’Brien, not long after undergoing dialysis treatment, appeared to be incoherent during his attempted examination. The judge cited Heard’s testimony at the second trial as “significant evidence” that was not presented at the first trial.

Krueger did not take issue with evidence presented on behalf of Pawlowski’s petition that O’Brien appeared to be more capable the night before died. But he said there were “other facts casting doubt on his ability to form the requisite intent to make a will on the night that he died.”

O’Brien, the judge said, had again undergone dialysis treatment the day he died and, according to notes taken by nurses at the Eskaton Care Center, was lacking in oxygen and appeared to be disoriented in the time just before his death.