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Court Decides Case Regarding Petitioners Motion for Summary Judgment


A New York Probate Lawyer said the decedent in this Probate action is a resident of Nassau County. She was survived by three distributees, her adult children (2 daughters and a son). She was also survived by her second husband, a lawyer. An instrument dated March 11, 1996, has been offered for probate by the son. The daughters have filed objections to the Will, alleging that it was the product of undue influence and fraud. A guardian ad litem was appointed for the minor children of the daughters. She also filed the same objections with an additional allegation that “on March 11, 1996, the said testatrix did not know or understand the contents of the proposed Will.” However, that particular objection has been withdrawn, by virtue of the letter of the guardian ad litem to the court dated September 27, 2005.

A New York Will Lawyer said that when the decedent died in May 2003, she was married to a lawyer. It was her second marriage. She was first married to her former deceased husband, who died in May 1980. Decedent’s Will cannot be understood in isolation from former husband’s estate. The former husband, along with several members of his extended family, operated a real estate business that had been in existence for several generations. His Will was admitted to probate by this court in August1980. Under his Will, his residuary estate was divided into two shares (I and II). Share I was to be funded with assets that would qualify for the marital deduction then in effect. Three trusts were established by the Will’s Article SECOND, equally funded by Share I. Each of these three Article SECOND trusts was to be administered separately and the net income of each was to be paid to the deceased or applied to her benefit. The trustees were also given the discretion to make principal payments to herein deceased testatrix. Husband’s Will made deceased the donee of a general testamentary power of appointment of the remainder of the three Article SECOND trusts.

Long Island Probate Lawyers said the testatrix’s Will that has been offered for probate purports to exercise her power of appointment, directing that the remainder of the three Article SECOND trusts be disposed of as part of her residuary estate. Article FIFTH of her Will bequeaths the residuary as follows: two-thirds (2/3) in trust for the son; one-sixth (1/6) each for the daughters. The alleged intent of this unequal distribution, when considered with the equal distribution under Article THIRD of husband’s Will, is to apportion the spouses’ real estate interests so that the son obtains a 50% share, the daughters 25% each. It is fair to say that testatrix’s exercise of her power of appointment is the source of the objections to her Will.

Summary judgment may be granted only where it is clear that no triable issue of material fact exists. The traditional reluctance to grant summary judgment in probate proceedings has long since passed, and it is now recognized that “[a]lthough summary judgment must be exercised cautiously, it is proper in a contested probate proceeding where the proponent submits a prima facie case for probate and the objectant fails to raise any genuine factual issues”. Indeed, it is also clear that summary judgment may be granted even where such proceedings involve issues of a fact-sensitive nature, such as fraud and undue influence.

Because summary judgment is in derogation of the parties’ right to a jury trial, the rubric applied to the court’s analysis has always been “issue finding” rather than “issue determination”. Therefore, it is incumbent on the movant to make a prima facie showing that he or she is entitled to summary judgment as a matter of law. The papers submitted in support of and in opposition to the motion are scrutinized in a light most favorable to the party opposing the motion. If there is any doubt as to the existence of a triable issue of fact, then the motion must be denied.

The court recognizes that undue influence is rarely proven by direct evidence and is usually proven by circumstantial evidence. Among the factors that have been held to indicate the exercise of undue influence are: 1. the physical and mental condition of the testatrix; 2. whether the attorney who drafted the will was the testatrix’s attorney; 3. whether the propounded instrument deviates from the testator’s prior testamentary pattern; 4. whether the person who allegedly wielded undue influence was in a position of trust; and 5. whether testator was isolated from the objects of his natural affection.

With all this in mind, it is also important to remember that in order to defeat a motion for summary judgment, the objectant must demonstrate that there is a genuine triable issue by allegations which are specific and detailed, substantiated by evidence in the record and that mere conclusory assertions will not suffice.

The physical and mental condition of the testatrix is a leading factor when considering undue influence. If there is one fact that is unassailable in this motion it is that the testatrix faced her medical challenges bravely and in such a way that did not diminish her mental or physical capacity. The objectants ask the court to take judicial notice of the debilitating effects of chemotherapy. Not only is such notice unwarranted on the law, it is clearly belied by the evidence. The testatrix may have been diagnosed with lymphoma a few months before her initial meeting, but the facts submitted on this motion clearly illustrate her knowledgeable, competent, and active participation in her estate planning.

Medical records, affidavits from treating physicians, deposition testimony all point to the decedent being fully capable and in charge of her affairs during the relevant time. There is no proof that objectants were in any manner shut out of decedent’s life by petitioner. Indeed, one thing that the record impresses upon the court was the independence of the decedent during the relevant times, and the continuing relationship she enjoyed with all her children and grandchildren. Thus, on this point, objectants have failed to demonstrate the actual exercise of undue influence.

Another factor the courts look to in these analyses is the identity of the attorney-drafter of the Will. It has been held that where a Will has been prepared by an attorney associated with a beneficiary, that relationship must be explained and it is a question of fact whether undue influence existed if that relationship is not adequately explained.

If a confidential relationship existed between the decedent and the proponent, then an inference of undue influence arises and the proponent therefore has the burden of going forward with evidence supporting an alternate explanation for the decedent’s largesse. It is generally considered a question of fact whether the alternate explanation offered by the proponent is adequate. However, the courts have not been reluctant to grant summary judgment in this area where the result is warranted by the facts.

A confidential relationship maybe inferred if the party so charged has disparate power and control over the decedent, such as a power of attorney, guardian, doctor, etc. However, even in the case of a guardian or attorney, a close family relationship may counterbalance any legal presumption, even to the point of dispensing with the need of an alternate explanation for the Will. Indeed, it has been held that even if a confidential relationship has been established, the presence of a family relationship is generally sufficient to rebut any adverse inference.

In this case, there is some evidence of a confidential relationship between mother and son (a power of attorney, assistance with some finances, etc.). However, as Surrogate Roth wrote in a case “even if a confidential relationship existed between decedent and proponent and undue influence can be inferred, proponent has effectively offset such inference with ample evidence establishing that decedent was animated by something other than undue influence” The same result is called for here.

The evidence is more than sufficient to explain decedent’s testamentary plan, regardless of the outcome of an analysis based upon a confidential relationship. The salient bit of evidence in this regard is decedent’s letter to her children that she considered of such importance so as to request the draftsman to help her draft it. It describes her decision-making process in exercising her power of appointment. The evidence submitted by the objectants does no more than to establish the normal and expected interaction between a mother and child. Indeed, the record is replete with instances of decedent’s close relationship with all her children. Ironically, her decision to delay delivery of her letter to her children proved prescient, because it caused the very acrimony she feared in life. Her decision to delay the letter’s deliverance until after her death was a rational and understandable desire to maintain harmonious family relations for the remaining years of her life.

To sum up the undue influence analysis, it is well-settled that any influence based upon gratitude, consanguinity, or affection is not necessarily or even presumptively undue. Without a showing that undue influence was actually exerted upon the decedent, mere speculation that opportunity and motive existed is insufficient to defeat summary judgment. The mere allegation of a confidential relationship is likewise insufficient to preclude summary judgment. As pointed out by the court in a case, the courts must consider the totality of the circumstances when considering these issues. The relationship between the son and his mother as evidenced by the facts, and even when considered in the light most favorable to the objectants, does not rise to the level of creating a material issue of fact. Therefore, the proponent’s motions for summary judgment as to undue influence are granted.

As to the allegations of fraud, the objectants claim that the petitioner misled their mother about his management of the family’s real estate interests and that as a result decedent decided to favor the son in her Will.

Although frequently joined, the concepts of undue influence and fraud are distinct. To prove fraud, and the objectants bear the burden on this issue, it must be shown that “the proponent knowingly made a false statement that caused decedent to execute a will that disposed of his [or her] property in a manner different from the disposition he [or she] would have made in the absence of that statement”. Moreover, a finding of fraud must be supported by clear and convincing evidence. As with allegations of undue influence, in order to defeat the motion for summary judgment on the issue of fraud, the objectants must come forward with more than “mere conclusory allegations and speculation”. Indeed, to defeat a motion for summary judgment as to fraud the objectants must come forward with sufficient evidence to show that there is an issue of fact to the effect that the son made a false statement or statements to deceased to induce her to make this Will, that deceased believed the statement, and that without such statement the propounded Will would not have been executed. As with undue influence, a showing of motive and opportunity to mislead are insufficient; actual misrepresentation is necessary.

The objectants have failed to come forward with anything more than unsupported conjecture regarding compensation taken by the son from the trusts over the years relevant to the Will’s execution. Of course, the son’s conduct as co-trustee is being challenged in the contested accountings now before the court. None of the objectants’ arguments rise to the level of creating a triable issue of material fact. The objectants link the son’s various alleged defalcations to the text of deceased’s post-mortem letter of explanation to her children

Without even a minimal showing of fraudulent misrepresentation, the opposition to summary judgment on the issue of fraud must fail.

Here in Stephen Bilkis and Associates, we have Nassau County Estate lawyers who will assist you in drafting your last will and testament. We will inform you of the requirements provided by law for a valid will. By this, during the probate of the will, the process of allowing the last will and testament will be expedient. During the probate, our Nassau County Probate attorneys will represent your named executor for the proper allowance of the will.

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