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Petitioner Alleges Undue Influence Regarding Will Execution

A New York Probate Lawyer said that, in this contested probate proceeding, the proponent, the daughter of the decedent, moves for an order pursuant to CPLR 3212 granting summary judgment dismissing the objections and admitting the propounded instrument dated June 25, 2007 to probate. The objectant, who is the son of the decedent, cross-moves for summary judgment denying probate to the propounded will dated June 25, 2007.

A New York Will Lawyer said the decedent, died on August 2, 2008, survived by four children. The decedent’s wife, predeceased the decedent, as did his daughter. The will offered for probate provides a $25,000.00 bequest to his son; the remaining amount of a private mortgage held by decedent for property located at 225 Hillside Avenue, Douglaston, New York is to be divided evenly among his daughters and the residuary is to be divided evenly among them. The will nominates the proponent as executor.

A Westchester County Probate Lawyers said that, the objectant has interposed the following objections to the propounded instrument: “1. the instrument propounded is not the last will and testament of the decedent. 2. The instrument is not the last will and testament of the decedent in that the signature affixed thereto, alleged to be the signature of decedent, is not, in fact, decedent’s signature. 3. The instrument offered for probate was not duly executed by the decedent in that he did not affix his signature at the end thereof, nor was such signature made by the decedent in the presence of each of the attesting witnesses, or acknowledged by him to have been made, to each of the attesting witnesses, nor did the decedent declare the instrument to be his last will, nor did at least two attesting witnesses each sign their names to said instrument as a witness at the end thereof at the request of the decedent and in his presence. 4. The instrument offered for probate was not duly executed by the decedent in that he did not publish the same as her will in the presence of the witnesses whose names are subscribed thereto and that the said alleged witnesses did not sign as witnesses in his presence or in the presence of each other. 5. The instrument offered for probate was not freely and voluntarily made by the decedent. Upon information and belief, the instrument, and the signature thereto, was obtained and procured by fraud, duress and/or undue influence practiced upon the decedent by the proponent or by other persons acting in concert or privity with her whose names are presently unknown to respondent. 6. That on the 25th day of June, 2007, the said decedent, was not of sound mind or memory and was not mentally capable of making a will. 7. Said instrument purported to be the last will and testament of the decedent, was revoked, because decedent executed a second original will on the same day he executed the instrument being offered in this probate proceeding, and only said instrument has been produced and offered for probate.”

A Suffolk County Probate Lawyers said that, in support of the motion to admit the will to probate, the proponent submits the deposition testimony of the attorney-draftsperson, the deposition testimony of witnesses to the will and the proponent. In opposition and, in support of the cross-motion to deny probate, the objectant submits his own affidavit, the same deposition testimony as proponent, the affidavits of the decedent’s sister, the attorney-draftsman, annuity records, medical records and various documents. In further support of the cross-motion, the objectant submits the affirmation of counsel as well as affidavits and deposition testimony previously submitted.

The issue in this case is whether the will should be admitted to probate.

The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tending sufficient evidence to demonstrate the absence of any material issues of fact. Failure to make such a prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers. Once this showing has been made, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action. Summary judgment in a contested probate proceeding is appropriate where an objectant fails to raise any issues of fact regarding execution of the will, testamentary capacity, undue influence or fraud. The remedy, however, is inappropriate where there are material issues of act.

The proponent has the burden of proving testamentary capacity. It is essential that testator understand in a general way the scope and meaning of the provisions of his will, the nature and condition of his property and his relation to the persons who ordinarily would be the natural objects of his bound. Although he need not have a precise knowledge of his assets, he must be able to 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 does not preclude a finding thereof as the relevant inquiry is whether the decedent was lucid and rational at the time the will was made. “However, when there is conflicting evidence or the possibility of drawing inferences from undisputed evidence, the issue of capacity is one for the jury”.

In this case, the record establishes that at all relevant times, including the time when the will was executed, the decedent possessed the capacity required by EPTL 3-1.1 to make a will. Pursuant to their deposition testimony, the attesting witnesses stated that the decedent was of sound mind at the time of the examination of the propounded will. This testimony was buttressed by the testimony of the attorney-draftsman who met the decedent to discuss the proposed distribution of his estate, including the members of his family.
Based upon the foregoing, the proponent has established prima facie that decedent was of sound mind and memory when he executed the will (EPTL 3-1.1). The record is absent any proof that at the date of the execution of the propounded will, decedent was incapable of handling his own affairs or lacked the requisite capacity to make a will. In particular, neither the documentary evidence submitted by objectant in opposition to the motion, including excerpts from the Congressional Record, newspaper articles and community service award announcement, all dated some 3 to 5 years prior to the execution of the propounded will, nor the affidavit of decedent’s sister, raise an issue as to decedent’s testamentary capacity at the time he executed the will in 2007.

Accordingly, on the issue of testamentary capacity, the proponent’s motion is granted, and the objection of lack of testimony capacity is dismissed.

The proponent has the burden of proof on the issue of due execution. Due execution requires that the proposed will be signed by the testator, that such signature be affixed to the will in the presence of the attesting witnesses or that the testator acknowledge his signature on the propounded will to each witness, that the testator publish to the attesting witnesses attest the testator’s signature and sign their names at the end of the will. If the will execution is supervised by an attorney, the proponent is entitled to the presumption of due execution. Where an attorney states to the attesting witnesses, in the decedent’s presence, that decedent is executing a will, such statement meets the publication requirement. If the decedent does not expressly request that a particular witness sign the will, such a request may be inferred from a testator’s conduct and from circumstances surrounding execution of the will. The attestation clause and self-proving affidavits further support proponent’s assertion that the propounded will was executed in compliance with statutory formalities.
Here, the testimony of the two attesting witnesses and the attorney-draftsman prima facie establish due execution of the propounded instrument. The objectant’s contention that the health care proxy, dated June 21, 2007, bearing the signatures of the attesting witnesses was either not witnessed on that date or that the witnesses may have witnessed the execution of the health care proxy and not the will, does not raise an issue of fact. Although the attesting witnesses in their affidavits could offer no explanation as to appearance of their signatures on the June 21, 2007 health care document, such failure does not, in the court’s view, detract from their testimony as to witnessing the decedent’s propounded will dated June 25, 2007. 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. Accordingly, the objection of lack of due execution is dismissed.
To prevail upon a claim of fraud, the objectant must prove by clear and convincing evidence that the proponent knowingly made false statements to decedent to induce her to execute a will that disposed of her property in a manner contrary to that in which she would have otherwise disposed of it. Accordingly, the objection of fraud is dismissed.

In order to prove undue influence, the objectant must show (1) the existence and exertion of an influence; (2) the effective operation of such influence as to subvert the mind of the testator at the time of the execution of the will; and (3) the execution of a will, 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 his will, his family relations, the condition of his health and mind and 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. Without the showing that undue influence was actually exerted upon the decedent, mere speculation that opportunity and motive to exert such influence existed in insufficient. Circumstantial evidence is sufficient to warrant a trial on the question of undue influence.

The record is devoid of any evidence supporting the objection of undue influence and accordingly, the objection of undue influence is dismissed.

It is well settled that where a will is executed in counterpart all counterparts constitute the will and revocation of one is a revocation of all. The failure to produce the copy of the instrument, last shown to have been the possession of decedent, raises a presumption that he destroyed it with the intent of revoking it.

Here, there is an issue of act as to whether decedent executed two original wills as to implicate the doctrine of revocation. While the attorney-draftsman asserts that only one will was fully executed by decedent, and, therefore, no other original exists, the attorney’s own deposition testimony, excerpted above, raises an issue in that regard.

Objectant’s assertion that the proponent’s motion for summary judgment should be denied as discovery is not complete is without merit. Objectant notes that the proponent has failed to produce the power of attorney that decedent allegedly executed June 21, 2007 and contends that examination of that document is essential. The missing power of attorney, however, does not raise issues of fact as to the execution of the propounded instrument dated June 25, 2007 and, for the same reason that the health care proxy dated June 21, 2007 does not raise issues of fact, neither does the power of attorney. There has been no showing that facts essential to oppose proponent’s motion may exist but cannot now be stated.

The proponent’s motion for summary judgment is granted to the extent of dismissing the objections of lack of due execution, lack of testamentary capacity, fraud and undue influence and is otherwise denied. The objectant’s cross-motion denying probate to the propounded will is denied as there is an issue of fact as to whether decedent executed two original wills. This matter will proceed to trial on the issue of revocation on December 13, 2010 through December 16, 2010. The attorneys are directed to appear for a pre-trial conference on April 28, 2010, at 9:30 a.m. Settle order on five days’ notice with five additional days, if service is made by mail.
If you wish to question the testamentary capacity of the testator, seek the assistance of a Nassau Will Contest Attorney and Nassau Estate Litigation Attorney at Stephen Bilks and Associates.

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