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Court found that testator was of sound mind when he executed his will. In Matter of the Estate of Scher, 2008 N.Y. Slip Op. 51819 (N.Y. Surr. Ct. 2008)


In New York, being of “sound mind” to execute a will means that the testator must possess testamentary capacity. See EPTL § 3-1.1. This entails understanding the nature and consequences of making a will, knowing the extent of one’s property, and recognizing the natural beneficiaries. While a presumption of having a sound mind exists, a testator’s mental capacity can be challenged as it was in In Matter of the Estate of Scher, 2008 N.Y. Slip Op. 51819 (N.Y. Surr. Ct. 2008). It’s important to note that common conditions associated with aging or mental health issues may not automatically invalidate a will, and the burden of proof rests on the party contesting testamentary capacity.

The probate proceeding involving the estate of Harold Scher, who passed away on February 11, 2006, has unfolded with a myriad of legal complexities and familial tensions. The surviving spouse, Leah Scher  objects to probate, and the decedent’s sons from a previous marriage, Mark Scher and David Scher and the proponents of he will. Objectant seeks to challenge the probate of Harold Scher’s will dated July 12, 2005, citing reasons such as lack of due execution, lack of testamentary capacity, fraud, and undue influence. In response, Proponents have filed a cross-motion for summary judgment, aiming to dismiss Objectant’s objections and secure the probate of the contested will.

Background Facts
Harold Scher’s passing marked the commencement of a contentious legal battle over the distribution of his estate. Decedent’s sons from a prior marriage, Mark and David Scher, found themselves in opposition to their stepmother, Leah Scher. Objectant alleged that Harold Scher, at the time of executing the will, lacked the mental capacity and was unduly influenced by Proponents.

The central issues at play revolve around the validity of the will dated July 12, 2005. Objectant contends that Harold Scher was not of sound mind when making the will and that Proponents exerted undue influence and committed fraud. Proponents, on the other hand, assert that the will was duly executed, and Harold Scher possessed testamentary capacity.

The court, after considering extensive discovery, depositions, and supporting documents, has granted summary judgment in favor of Proponents. The court finds that the will of July 12, 2005, is genuine, validly executed, and reflects the decedent’s true intent. The objections raised by Objectant are deemed insufficient to challenge the probate of the will.

The burden of proof in a contested probate proceeding is distributed between the proponent and the objector. Proponents must establish a prima facie case for probate, including due execution and testamentary capacity. In this case, the court notes that the attorney overseeing the will’s execution, Judith Menschik, raises a presumption of regularity in the execution process. Additionally, the self-executing affidavit signed by the three witnesses creates a presumption that the will was duly executed.

Objectant’s objections hinge on allegations of Harold Scher’s mental incapacity at the time of executing the will. She presents medical records and affidavits pointing to physical, mental, and psychological problems, including severe depression. However, the court finds this evidence insufficient to overcome the affirmation of Dr. Gendelman, a neurologist, who conducted a comprehensive examination and found Harold Scher to be mentally competent.

Undue influence, another key element of Objectant’s objections, requires a showing that Proponents coerced the decedent into signing the will against his free will. Objectant fails to provide direct evidence of such coercion and relies on circumstantial evidence, including the fact that the will reduced her bequest compared to earlier wills. The court deems this circumstantial evidence as insufficient to raise a triable issue of fact.

The court also addresses the issue of Proponents’ potential conflict of interest, as the will was drafted by Ann Scher, the wife of one of the beneficiaries. While acknowledging the rule established in Matter of Burke, the court emphasizes that the inference of undue influence is counterbalanced by the close family relationship between the decedent and the beneficiaries. The court concludes that Objectant has failed to present significant circumstantial evidence of undue influence.

In this probate dispute, the court, after careful consideration of the evidence, grants summary judgment in favor of Proponents. The will of July 12, 2005, is admitted to probate, and letters testamentary are to be issued to Mark Scher and David Scher. The court finds that Objectant’s objections lack merit, failing to establish issues of due execution, testamentary capacity, undue influence, or fraud. This legal saga highlights the complexities of familial relationships intersecting with legal proceedings and underscores the need for substantial evidence to challenge the probate of a will.

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