In this case, the Appellate Division, Second Department, considered whether the Surrogate’s Court of Kings County erred in granting summary judgment dismissing the objectant’s objections and admitting the decedent’s will to probate.
The decedent died on May 20, 2014 leaving a will dated March 28, 2014. The petitioner filed a petition for probate on July 22, 2014. Several people filed objectants claiming lack of due execution, lack of testamentary capacity, undue influence, and fraud. The Surrogate’s Court dismissed the objections and admitted the will to probate. An objectant appealed.
Appellate Court decision
The Appellate Court upheld the Surrogate’s Court’s decision to dismiss the objectant’s objections. The court found that the petitioner (the proponent of the will) met her burden by presenting prima facie evidence of due execution through. The will contained an executed attestation clause and also had a self-proving affidavit. In addition, she presented the transcript of the deposition testimony of the attorney-drafter as well as and the transcripts of the deposition testimony of the attesting witnesses.
In addition, the proponent met her burden of showing that the testator had testamentary capacity. The self-proving affidavit, transcript of the depositions of the witnesses as well as the attorney-drafter constituted prima facie evidence of testamentary capacity.
On the other hand, the objectant did not raise a triable issue of fact on either the issue of due execution or testamentary capacity. Furthermore, the evidence that supported due execution and testamentary capacity also supported the petitioner’s position that there was no undue influence or fraud.
The facts of the Schmidt case and the issue of undue influence bear a closer look. Undue influence exists when someone takes advantage of someone who typically is ill, elderly, or weak in order to receive an inheritance. These undue influencers intentionally exploit the weakened position of the person in order to convince them to revoke their prior will and estate plan and instead make a new will that made the undue influencer the sole or substantial beneficiary. As a result, the testator’s legal heirs or beneficiaries of the prior will would be disinherited.
Proving undue influence can be difficult and the burden is on the objectant to produce evidence. Evidence of undue influence is often circumstantial. However, for a court to be convinced by circumstantial evidence, it must be substantial.
One type of circumstantial evidence is showing that the testator disinherited their natural heirs such as their children, grandchildren, or siblings. Or that the will deviates from the testator’s prior estate plan. Unless there are special circumstances, it is uncommon for a testator to disinherit their children or other natural heirs. On the contrary, testator’s typically want to leave their property to their children and want to provide for them. Thus, if a testator disinherits those who are their natural heirs, the court will look closely at the circumstances surrounding that decision.
In Schmidt on March 24, 2009, the decedent executed his will. The testator disinherited his son. The decedent’s daughter submitted the will for probate and the son objected.
The son argued that the will should not be probated for a number of reasons including undue influence. Anticipating that the son might initiate a will contest, the testator added language in the will that explained the rationale behind his decision to disinherit his son– he had “generously provided for him during (his) lifetime.”
The proponent of the will also submitted evidence showing that the 2009 will did not deviate from the testator’s long standing estate plan. In fact, the 2009 will was not the testator’s first will. The testator had written multiple wills in the past. The 2009 will was the third will since 1992 in which the decedent chose not to leave the objectant an inheritance. Thus, that the testator disinherited one of his natural heirs is not circumstantial evidence pointing to undue influence.
Schmidt is a good example of the wisdom of including language in a will explaining a choice to disinherit a natural heir. Even though the explanation did not prevent a will contest, it offered an explanation as to why the will contained terms that the court my view as unusual, unnatural, or unexpected.