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Petitioner Claims Decedent Lacked Capacity in Will Contest Action


The decedent, a former court reporter, died at the age of 78 following an almost two-week hospitalization. The propounded instrument was executed one day prior to the decedent’s death, while he was hospitalized. A New York Probate Lawyer said the amended probate petition indicates that the decedent’s distributees are four first cousins, each of whom was served with process. One of the cousins requested that a subpoena duces tecum be “so ordered” by the court in order to obtain the decedent’s hospital records, and her time to file objections was extended to 10 days after the completion of the SCPA 1404 examinations. Ultimately, she did not file objections.

According to a New York Will Lawyer, a judicial subpoena duces tecum issued for the production of the decedent’s hospital records. In addition, SCPA 1404 examinations were conducted of the witnesses to the propounded instrument, as well as of its drafter, a non-attorney who also works in the court system and was a friend of the decedent and the movant. Prior to conducting SCPA 1404 examinations, the objectant filed initial objections asserting that the decedent lacked testamentary capacity, the propounded instrument was not properly executed pursuant to EPTL 3-2.1, and was procured by the undue influence of the movant.

New York City Probate Lawyers said the non-attorney drafter testified at her SCPA 1404 examination that the decedent first spoke about leaving everything to the movant about three years prior to his death, upon his return from a California trip. According to the drafter, the decedent always stated that he knew he should have a will, but he was “superstitious” and believed that, if he signed one, he would die. The decedent also stated repeatedly that the movant was “like a son” to him and he wanted to leave his estate to the movant. Over the years, particularly when the decedent did not feel well and raised the subject, the drafter encouraged the decedent to retain a lawyer to draw up a will or, alternatively, to complete a Blumberg form will and she gave him blank forms, noting that he did not have to sign any draft or form until he felt death was imminent. The drafter, the decedent and the movant were all friends and used to dine together, and the drafter considered the movant to be like “family.” Specifically, although the decedent and the drafter were friendly, each of them had a closer relationship with the movant.

Manhattan Probate Lawyers said that during the decedent’s last hospitalization, the drafter did not go to the hospital but she often spoke with him by telephone; the decedent knew he was dying, and was always alert and coherent in those conversations. During the same conversations from the hospital, the decedent asked her to type the propounded instrument because he did not believe that the handwritten instrument on a Blumberg form looked official.

The medical records annexed to the motion reveal that while hospitalized, the decedent underwent several gastrointestinal procedures. The decedent was verbally responsive, in no acute distress and alert and oriented “x3” although he received Percocet for pain. Thereafter, on the date of the propounded instrument, a Foley Catheter was removed and “discontinued,” and fluid was drained from the decedent’s abdomen at 8:45 a.m. By 8 p.m. that evening, the decedent was in renal failure and, by that time, he complained of pain in his abdomen and refused Percocet, stating that he wanted stronger medication; as a result, at 9:32 p.m., he received morphine intravenously. Other than those instances of receiving Percocet and morphine, the record notations for January 1, 2009 through the morning consistently indicate that the decedent made his needs known, denied pain, was conversant, “awake, alert and oriented x3,” “eyes bright” and responsive to commands, with no acute distress. Thereafter, the discharge plan for the decedent was “home;” however, by after several days, the notes indicate that the decedent had executed a “DNR” order and the discharge plan was “Calvary.”

Following SCPA 1404 examinations and the receipt of the medical records, the objectant filed supplemental objections.

In his motion for summary judgment, the movant relies on the foregoing examinations and documents and annexes his own affidavit in support. He urges that the medical records demonstrate that the decedent had the capacity to make a will and knew its contents and the decedent was always awake and alert to the date of his death.

Summary judgment cannot be granted unless it clearly appears that no material issues of fact exist. The movant must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence in admissible form to demonstrate the absence of any material issue of fact. When the movant makes out a prima facie case, the burden shifts to the party opposing the motion to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact. Summary judgment is a drastic remedy which requires that the party opposing the motion be accorded every favorable inference, and issues of credibility may not be determined on the motion but must await the trial.

As an initial matter, the court notes that to the extent that the movant’s affidavit relates to personal transactions or communications with the decedent, CPLR 4519 bars its consideration in support of a summary judgment motion.

The proponent has the burden of demonstrating by a preponderance of the evidence that a purported will was duly executed. A presumption of regularity or validity may arise where the propounded instrument contains either an attestation clause preceding the genuine signatures of the attesting witnesses. Nonetheless, before admitting a will to probate, the court must be satisfied that the execution of the will was valid, even if no interested party files objections to its validity.

Here, the propounded instrument was not attorney-drafted or supervised; however, it contains both an attestation clause and a self-proving affidavit signed by three witnesses, giving rise to a presumption of regularity and validity. Although the objectant contends that proof of publication is lacking because the provisions of the propounded instrument were not read aloud during the execution ceremony, there is no requirement that an instrument be read aloud during the execution ceremony. In any event, there was substantial compliance with the publication requirement as evidenced by the testimony of the attesting witnesses, that the decedent stated he understood they were there to witness him sign the instrument and refused an offer to read its contents aloud, stating that he knew its contents and just wanted to get the instrument signed. As the proponent met his burden of proof with respect to due execution and the objectant failed to raise any issue of fact for trial, the proponent is granted summary judgment dismissing that objection.

With respect to testamentary capacity, it is well settled that the proponent has the burden of proving by a preponderance of the evidence that the decedent possessed sufficient testamentary capacity by demonstrating that the decedent: (1) understood the nature and consequences of executing a will; (2) knew the nature and extent of the property being disposed of; and, (3) knew the natural objects of his bounty and his relations with them. Where there is conflicting evidence or the possibility of drawing conflicting inferences from undisputed evidence, the issue of capacity is one for the jury.

Here, the movant met his burden of establishing the decedent’s testamentary capacity with the self-proving affidavit of the attesting witnesses stating that the decedent was of “sound mind, memory and understanding and not under any restraint” and was not in any respect incompetent. The SCPA 1404 examinations, the medical records and the affidavits that may be considered, collectively, demonstrate that the decedent knew and understood the consequences of making a will, the nature and extent of his property and the natural objects of his bounty, and that he consciously decided not to make a bequest to relatives.

The objectant has the burden of demonstrating by a preponderance of the evidence the exercise of undue influence. A finding of undue influence requires proof of “a moral coercion, which restrained independent action and destroyed free agency…”. To meet the burden of proving undue influence, the objectant must establish not only motive and opportunity, but also the actual exercise of undue influence, either through direct evidence or through significant circumstantial evidence of specific instances in which the undue influence was actually exercised.

Other than pointing to the possibility that the movant may have had a motive and opportunity to influence the decedent, the objectant failed to proffer any direct or circumstantial evidence, significant or otherwise, of the actual exercise of any alleged undue influence. As the objectant has the burden of proof on the issue of undue influence and she failed to make a prima facie showing that undue influence was actually exercised, the proponent is entitled to summary judgment dismissing the undue influence objection.

In summary, the guardian ad litem was clearly correct in vigorously exploring the validity of the propounded instrument in light of the following: (1) it is a “death-bed” will; (2) there were questions with respect to the need for the January 9, 2008 instrument as its predecessor by eight days, contains similar provisions; and, (3) the will was prepared by a person who was not an attorney, but was a close friend of the sole beneficiary who was not related to the decedent. Nonetheless, after a diligent inquiry into all of the circumstances surrounding the execution of the will, a cousin and alternate beneficiary under the will, opted not to file any objections. There are no triable issues of fact in view of all of the uncontroverted proof adduced, including the following: (1) the will was executed in accordance with all statutory formalities required by EPTL 3-2.1; (2) the decedent remained competent from the time he entered the hospital until he executed the will on January 9, 2009 and it was only much later in the evening on that day that there might have been any reason to question his testamentary capacity; (3) the sole beneficiary and the decedent enjoyed an extremely close relationship akin to a father-son relationship for a period of approximately two decades; and, (4) the reason the decedent waited for such a long period of time to effectuate his long-standing intent to name his friend as the sole beneficiary of his estate was that he was superstitious about making a will and it was only when he was convinced that his death was imminent, regardless of whether he made a will, that he executed a will.

Accordingly, the motion for summary judgment dismissing the objections is granted.

A person making a will should be of sound mind when executing such instrument, since it is a disposition of property. Here in Stephen Bilkis and Associates, our Bronx County Probate attorneys examine carefully on the soundness of mind of the decedent when the latter executed his will. Our Bronx County Estate lawyers render their advice to our client as to drafting a will and embodying the provisions thereof.

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