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Petitioner Moves for Summary Judgment in Will Contest Proceeding

This is a probate proceeding wherein petitioner, A, moves for summary judgment pursuant to CPLR 3212 dismissing the objections to probate of the respondent, B, and admitting into probate the last will and testament of the decedent dated 7 April 1997 and a codicil dated 2 August 2006.
The court grants the motion in its entirety.

A New York Probate Lawyer said the decedent, C, died on 31 October 2010. C was survived by her husband, A, the petitioner, and by her two sons: B, the respondent, and D.

An instrument purported to be the last will and testament of the decedent dated 7 April 1997 and a codicil dated 2 August 2006 were submitted for probate by the petitioner. A New York Will Lawyer said the purported will makes a specific bequest of $25,000.00 to decedent’s son, D, and leaves the decedent’s interest in any real property, including any interest in a condominium apartment, as well as the contents, in trust for the benefit of her husband, A, for his exclusive use for the remainder of his lifetime, with the balance of the trust being distributed to her son, B, upon her husband’s death. However, the purported codicil provides that upon the decedent’s death, her husband is to receive ownership of the condo at 30 Hampton Court, Woodbury, New York.

The respondent, B, filed objections to probate of the purported codicil alleging that on 2 August 2006, the decedent was not of sound mind or memory and was not mentally capable of making a will or codicil thereto, that the purported codicil was not freely or voluntarily made or executed by the decedent, but was procured by duress and undue influence practiced upon the decedent, that the purported codicil was not freely or voluntarily made or executed by the decedent, but was procured by fraud practiced upon the decedent and that the purported codicil was not duly executed by the decedent. No objections were made to the probate of the decedent’s 7 April 1997 will.

Long Island Probate Lawyers said it was held in Alvarez v Prospect Hosp. and Phillips v Joseph Kantor & Co. that summary judgment may be granted only when it is clear that no triable issue of fact exists. The court’s function on a motion for summary judgment is issue finding rather than issue determination as was also established in the case of Sillman v Twentieth Century-Fox Film Corp. because issues of fact require a hearing for determination. Consequently, it is incumbent upon the moving party to make a prima facie showing that he is entitled to summary judgment as a matter of law. If there is any doubt as to the existence of a triable issue, the motion must be denied.

If the moving party meets his burden, the party opposing the motion must produce evidentiary proof in admissible form sufficient to establish the existence of a material issue of fact that would require a trial as held in the analogous case of Zuckerman v City of New York. Queens Probate Attorneys said in doing so, the party opposing the motion must lay bare his proof. Mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient to overcome a motion for summary judgment.

Summary judgment in a contested probate proceeding is appropriate where an objectant fails to raise any issues of fact regarding testamentary capacity, execution of the will, undue influence or fraud.

The petitioner has the burden of proving testamentary capacity. It is essential that the testator understand in a general way the scope and meaning of the provisions of her will or codicil, the nature and condition of her property, and her relation to the persons who ordinarily would be the objects of her bounty. Although she need not have precise knowledge of her assets, she must be able to understand the plan and effect of the will or codicil, and less mental faculty is required to execute a will or codicil than any other instrument. Mere proof that the decedent suffered from old age, physical infirmity and progressive dementia is not necessarily inconsistent with testamentary capacity and does not preclude a finding thereof as the relevant inquiry is whether the decedent was lucid and rational at the time the will or codicil was made.

The record in this case establishes that at all relevant times, including the time when the codicil was executed, the decedent possessed the capacity required by EPTL 3-1.1 to make a will or codicil. In the affidavit and deposition testimony of the attesting witness to the codicil, DB; in the deposition testimony of the attesting witness to the codicil, BH; and the affidavit of HM, the decedent’s accountant, who was also present at the execution of the codicil, they each unequivocally state that the decedent was of sound mind at the time of the execution of the propounded codicil.

Based upon the foregoing, the petitioner has established prima facie that the decedent was of sound mind and memory when she executed the codicil (EPTL 3-1.1). The record is deprived of any proof whatsoever that on the date of the execution of the codicil, the decedent was incapable of handling her own affairs or lacked the requisite capacity to make a will or codicil.

The court grants the petitioner’s motion for summary judgment on the issue of testamentary capacity and dismisses the objection of lack of testamentary capacity.

In a probate contest, the proponent also has the burden of proof on the issue of due execution citing Delafield v Parish. Due execution requires that the proposed will or codicil be signed by the testator, that such signature be affixed to the will or codicil in the presence of the attesting witnesses or that the testator acknowledge her signature on the propounded will or codicil to each witness, that the testator publish to the attesting witnesses and that such attesting witnesses attest the testator’s signature and sign their names at the end of the will or codicil (EPTL 3-2.1).

In this case, the affidavit and deposition testimony of the respective attesting witnesses, as well as the affidavit of the decedent’s accountant, who was also present at the time of the execution of the codicil, prima facie establish due execution of the codicil. Absent from the record is any proof that the propounded instrument was not executed in conformity with the formal requirements of EPTL 3-2.1 The respondent’s argument that the codicil was purportedly handwritten by someone other than the decedent and then photocopied prior to its execution is of no moment, as long as there was compliance with the formalities of execution. Because all of the statutory requirements for due execution were met and no issues of fact requiring a trial exist, the objection of lack of due execution is dismissed and the petitioner is granted summary judgment regarding due execution.

In order to prove undue influence, the respondent must show that the existence and exertion of an influence, that the effective operation of such influence as to subvert the mind of the testator at the time of the execution of the will or codicil and that the execution of a will or codicil, that, but for undue influence, would not have been executed. Undue influence can be shown by all the facts and circumstances surrounding the testator, the nature of her will or codicil, her family relations, the condition of her health and mind and a variety of other factors such as the opportunity to exercise such influence. It is seldom practiced openly, but it is the product of persistent and subtle suggestion imposed upon a weaker mind and furthered by the exploitation of a relationship of trust and confidence as held in Matter of Burke. Without the showing that undue influence was actually exerted upon the decedent, mere speculation that opportunity and motive to exert such influence existed is insufficient.

In the case of Simcuski v Saeli, the court held that to prevail upon a claim of fraud, the respondent must prove by clear and convincing evidence that the proponent knowingly made false statements to the decedent to induce her to execute a codicil that disposed of her property in a manner contrary to that in which she would have otherwise disposed of it.

The respondent’s opposition to the petitioner’s motion for summary judgment fails to raise any facts that support his objection that the petitioner or any other individual exerted undue influence upon the decedent or procured the execution of the codicil by fraud. The respondent’s allegation that the codicil may have been handwritten by someone other than the decedent, even if true, is not indicative, in and of itself, of undue influence or fraud.

The record is devoid of any admissible evidence supporting the objections of undue influence or fraud and, accordingly, those objections are also dismissed.

The court grants petitioner’s motion for summary judgment. All objections to the probate of the propounded codicil are dismissed.

Nassau County Last Will and Testament Lawyers, Nassau County Probate Lawyers and Stephen Bilkis & Associates are experts in probate proceedings. If you are faced with the same legal dilemma as the one narrated above, do not hesitate to call us at our toll free number or visit our firm. We will guide you.

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