A New York Probate Lawyer said in this contested probate proceeding, the proponent moves for an order granting summary judgment dismissing the objections and admitting the will to probate. The youngest son of the deceased man cross-moves for summary judgment to authorize the immediate distribution of $2,000,000.00.
A New York Will Lawyer said the man died on at the age of 81. He was survived by his three adult children as his sole distributees. The eldest son is the petitioner; the daughter is the objectant. The youngest son has filed an affirmation in support of his brother’s motion for summary judgment.
The instrument offered for probate was allegedly executed on August 28, 2010. It contains pre-residuary totaling to $525,000.00 bequests $100,000 to the eldest son’s wife, $100,000 to the eldest son’s child, $150,000 to the decedent’s sister, $100,000 to the decedent’s niece, and $75,000 to the decedent’s friend. The residue is bequeathed 2/3 to the eldest son and 1/3 to the youngest son. The daughter is expressly disinherited. She filed objections to probate alleging that the will was not duly executed, that the decedent lacked the capacity to make a valid will, and that the instrument is the result of undue influence and fraud having been perpetrated on the decedent by his eldest son.
Manhattan Probate Lawyers said the deposition testimony and affidavits submitted in support and in opposition to the motion for summary judgment reveal that the instrument offered for probate was executed at the home of the attorney/draftsman. The decedent and his attorney first met in mid-1960. The draftsman, a certified public accountant as well as an attorney, did tax accounting work for the decedent and the family business entities for many years and also provided legal services, but to a lesser extent. He averred that his legal practice is limited to probate and estate matters and representing fiduciaries before the IRS. He also averred that he conducted his legal practice from his accounting office. In addition to their professional relationship, the decedent and the attorney/draftsman were friends who socialized and played golf regularly for decades.
Bronx Probate Lawyers said the will was executed on a weekend. The attesting witnesses were the attorney’s longtime companion, and another longtime friend and golf partner of the decedent, who post-deceased the decedent before his deposition was taken in this proceeding. The attorney/draftsman testified at his deposition that he and the decedent went into his den where he and the decedent read the will outside the presence of the two attesting witnesses. As the decedent finished reading each page he initialed it, at the attorney’s direction. After the will had been read and the pages initialed, the attorney and the decedent returned to the dining room where the will was executed in the presence of the attesting witnesses. The attorney declared that the instrument was the decedent’s will, he asked the decedent if it was his will to which the decedent gave an affirmative reply and the decedent then asked his long time partner and his friend to witness the will. The decedent then executed the will and the witnesses then signed the attestation clause and the self-proving affidavit.
The petitioner has clearly made out a prima facie case for summary judgment on the issue of due execution. In opposition, the daughter’s counsel attempts to discredit the testimony of the attorney and his partner by pointing out that the attorney, now 88 years old, didn’t recall if the decedent was wearing glasses when the will was executed and testified that the will was executed on a Sunday when, in fact, it had been executed on a Saturday. The attorney also testified that the decedent lived approximately 10 miles from him when, in fact, it was only four miles. The inability of the attorney and his partner to recall minor details of the execution ceremony are insufficient to rebut the presumption of due execution which arises from the attestation clause and self-proving affidavit and the otherwise corroborating testimony they provided. The branch of the motion to dismiss the objection regarding due execution is therefore granted.
A testator must understand the plan and effect of the will and less mental faculty is required to execute a will 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 do not preclude a finding thereof as the relevant inquiry is whether the decedent was lucid and rational at the time the will was made. A will may not be rejected simply because the testator does not make it until near death, or because he is ill or weak.
Here, the will was executed on August 28, 2010 and the decedent died on October 10, 2010, approximately six and one-half weeks after execution of the will. As indicated above, one of the two attesting witnesses died in February 2011 and his deposition was never taken. Thus, the only testimony regarding the decedent’s mental state on the date of the will’s execution is the depositions of the draftsman and his companion, the surviving attesting witness. Both testified unflinchingly regarding the decedent’s capacity to execute on a will on August 28, 2010. Both the attorney, who knew the decedent well for over forty years, and the draftsman partner, who knew the decedent socially for approximately sixteen years, testified that the decedent was in full control of his mental faculties on the date the will was executed. They gave similar testimony about the decedent’s condition the following weekend when the decedent and his companion dined together with them at a restaurant in Locust Valley, to which the decedent drove along with his companion. The attorney’s partner offered that on the date of the will’s execution the decedent acted normally, rationally and with no signs of mental infirmity. The attorney testified that the decedent never exhibited any signs of dementia, at least up until the decedent’s admission to a hospital on September 11, 2010.
All of the information provided to the attorney for the preparation of will came from the decedent. The will clearly identifies those who would be the natural objects of his bounty and his relationship to them. The decedent was involved in running the real estate entities which form a substantial portion of the estate and otherwise handled, at least until near the very end of his life, his own financial affairs, which supports an inference that the decedent apprehended the size of his estate.
The daughter’s own affidavit in opposition to the motion for summary judgment does not offer any evidence regarding the decedent’s capacity to make a will on the date in question. It appears that in opposition to the motion, the daughter is relying primarily on the unsworn memorandum of law submitted by her attorney. It is well settled that unsworn allegations of fact in a memorandum of law are without probative value.
The only evidence probative on the issue of testamentary capacity filed in opposition to the motion for summary judgment are the hospital records of the decedent from the Hospital, related to the decedent’s admission there on September 11, 2010 and the later hospital records of the Hospital which contain some references to delirium and the decedent’s deteriorating mental condition. However, there is no evidence to rebut the testimony of the attorney and his partner that the decedent was not only fully competent on the date of the will’s execution on August 28, 2010; his capacity remained undiminished when they dined out with him the following week. Although there is evidence that the decedent’s physical health was beginning to fail prior to the will’s execution, there is absolutely nothing to indicate that his mental capacity was in any way impaired prior to his being taken to the Hospital on September 11, 2010. The daughter’s own deposition testimony was that she did not think that the attorney and his partner were lying when they testified about the decedent’s mental capacity.
The branch of the motion to dismiss the objection regarding testamentary capacity is therefore also granted. There is simply no evidence adduced that the will was the product of fraudulent conduct and, therefore, the proponent’s motion for summary judgment dismissing the objection of fraud is granted.
The daughter argues that his elder brother prevented her from visiting with her father and that he was always abusive toward her. There is also sufficient evidence, in the form of pharmacy records, to establish that the elder son, a physician, wrote prescriptions or renewal prescriptions for many of the decedent’s medications. He also provided the decedent with alcohol and cigarettes, the decedent having been a smoker and drinker for many years. It appears therefore that the elder had ample opportunity to exercise undue influence, given his close relationship with the decedent and his physical presence in the waning weeks and months of the decedent’s life. The motive for unduly influencing is apparent such as to gain a larger share of the estate and the will does provide the eldest son and his family with a substantial portion of the estate. What is missing from the case is any evidence that the eldest son actually exercised any influence, undue or otherwise, on the decedent.
Here, the most telling evidence regarding the drafting of the propounded instrument came from the draftsman, decedent’s longtime friend, accountant, and attorney. He testified that he drafted a series of wills for the decedent, the last several of which, while different in certain particulars, were consistent in their express disinheritance of the daughter. The attorney’s deposition revealed that for years the decedent was unhappy with his daughter not only because of her lifestyle, but primarily because he viewed her as an obstacle to the resolution of the family real estate business in the manner that he preferred. Although no copies of the prior wills are in existence as it was the attorney’s practice to advise the decedent to destroy the earlier wills, the attorney testified that the daughter had been disinherited from the decedent’s wills since 2002, as his notes reveal. The daughter’s own deposition testimony reveals a very distant relationship between her and her father for at least a number of years before his death. Although she alleges that she attempted to reconcile, there is no objective evidence of that and clearly no evidence that any reconciliation ever took place.
The final event that cemented the severance of the relationship between the daughter and the decedent was a meeting in July 2010, approximately one month before the will’s execution, to discuss a resolution of the real estate ventures. The proposed agreement provided for distribution of the several parcels of real estate and cash adjustments to account for the unequal value of the realty being distributed. The evidence is that this resolution of the real estate business was extremely important to the decedent, as the daughter concedes. It also appears that all other interested parties other than the daughter had either already signed the agreement or had indicated their approval and willingness to sign. Although all parties were present, the closing did not take place because the daughter refused to execute the settlement documents, ostensibly on the advice of counsel. Whether on the advice of counsel or not, the decedent was angry at the daughter’s refusal to join in the agreement. Shortly thereafter, the decedent advised his attorney that he wanted to draft a new will increasing his eldest son’s share and reiterated his position that he did not want his daughter to inherit from his estate. It is unfortunate, but it appears clear to the court that the only person who influenced the decedent to disinherit the daughter was the daughter herself.
The objectant having failed to raise an issue of fact on the issue of undue influence, that objection is also dismissed. Accordingly, the proponent’s motion for summary judgment is granted in full. The objections to probate are dismissed and the propounded instrument will be admitted to probate. The cross-motion by the youngest son to authorize the release of $ 2,000,000.00 is denied as moot.
Last will and testaments signifies a person’s control over his estate and how he or she wants it to be distributed. If you want to contest a probate proceeding, consult a Nassau County Probate Lawyer or a Nassau County Will Contest Attorney. Stephen Bilkis and Associates also provide the services of Nassau County Estate Attorney if you need one.