A New York Probate Lawyer said that, in this contested probate proceeding, the proponent, moves for an order pursuant to CPLR 3212 granting summary judgment dismissing the objections and admitting the propounded instrument dated March 19, 2003 to probate. The objectant is the son of the decedent. The propounded instrument nominates the proponent as executor. The decedent, died on August 8, 2006, at the age of 88, survived by two children. Decedent and his wife of 42 years were divorced on January 8, 2004. The will offered for probate bequeaths substantially all of decedent’s assets to Perry to the exclusion of Nils. The decedent had as many as six wills, all but one of which (March 31, 2001) excluded Nils from decedent’s estate.
A New York Wills Lawyer said that, in 1954, the decedent founded a company in the business of the distribution of airplane parts and accessories. Decedent was the sole shareholder. Both the decedent’s children were employed by the company. In 1995, the first son’s employment was terminated and thereafter, he and decedent were estranged. On April 12, 2002, pursuant to a stock purchase agreement, the decedent sold his stock in the company to his son who executed a note for $9,600, 000, representing the purchase price of 80% of decedent’s shares. The remaining 20% of the stock was gifted by decedent to his son. Prior to the stock sale, decedent transferred substantial assets to his wife.
A Nassau Estate Litigation Lawyer, the objectant has interposed the following objections to the propounded instrument: lack of testamentary capacity, lack of due execution, fraud, and undue influence. In support of the motion to admit the will to probate, the proponent submits his own affidavit, the deposition testimony of witnesses to the will, the affidavits of employees of the company, the company’s accountant, the wife’s attorney an associate in proponent’s law firm. Various documentary evidence was also submitted.
A Nassau County Probate Lawyer said that, in opposition, the objectant submits his own affidavit, the affirmation of counsel and voluminous documentary evidence including hospital records, a prior will of the decedent dated March 3, 2001, a codicil dated January 19, 2002, and a will dated April 25, 2002, records of litigation involving the company, decedent and his son correspondence, and documents contained in the decedent’s divorce proceeding. In further support of the motion, the proponent submits his own affidavit, the reply affirmation of counsel, and decedent’s prior wills dated November 2, 1995, April 28, 1999, and February 5, 2000.
An attorney met the decedent in 2001 and represented the decedent in connection with the sale of the company and supervised the closing of that sale. The attorney also represented the decedent in his divorce action. He drafted the propounded instrument that is the subject of this proceeding. He had also drafted decedent’s 2002 will. According to the attorney, during the pendency of decedent’s divorce proceeding, the decedent asked him to draft a new will. Decedent met with the attorney alone in his office and stated that as a result of decedent’s estrangement with his other son; decedent did not want to leave anything to the son. In addition, because of the pendency of the divorce proceedings, decedent did not want to leave his wife anything either. The attorney stated that he again met with the decedent on the date of the execution of the will to review its terms. An associate in the attorney’s office, assisted in the supervision of the execution of the will. The attorney, the proponent, stated that he met with the decedent multiple times over the course of 2002-2004 and that decedent was aware of his assets and assuredly competent to execute a will in March of 2003, noting that several months after the execution of the will, decedent entered into a stipulation settling his divorce proceeding. The wife and her attorney concurred as to the decedent’s competency.
The issue in this case is whether the objectants motion for summary judgment dismissing the objections and admitting the propounded instrument dated March 19, 2003 to probate should be granted.
A Staten Island Probate Lawyer said the court said that 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 bounty. 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 execution of the propounded will. This testimony was buttressed by the testimony of the attorney-draftsman who was well familiar with the decedent and met the decedent to discuss the proposed distribution of his estate, as well as the attorney who assisted in the will’s execution. The affidavits of the witnesses also support decedent’s competency at the time he executed the will.
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 devoid any proof that at the date of the execution of the propounded instrument, decedent was incapable of handling his own affairs or lacked the requisite capacity to make a will. In particular, the 2001 North Shore University Hospital records do not raise an issue as to decedent’s testamentary capacity at the time he executed the will in 2003. The unsigned correspondence of the physician dated March 5, 2002 submitted by objectant in opposition has not been considered by this court as it is not in admissible form. Accordingly, the objection of lack of testamentary 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 that the instrument is his will and that the 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, the attorney-draftsman and the attorney who assisted in the supervision of the will prima facie establish due execution of the propounded instrument. Absent from the record is any proof that the propounded instrument was not executed in conformity with the formal requirements. 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 him to execute a will that disposed of his property in a manner contrary to that in which he would have otherwise disposed of it. There is no such evidence in this case. 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 a 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. The submission of multiple litigations involving corporate entities, decedent, his son, and his wife have no bearing on the validity of the propounded instrument dated March 19, 2003. Nor does the April 2002 sale of the company to his son at allegedly below market value bear on the validity of the propounded will. It should be emphasized that the propounded will was executed in March 2003 during the pendency of decedent’s divorce proceedings that culminated in a judgment of divorce in January 2004. The stipulation of settlement in the divorce action in August 2003, some five (5) months after the execution of the will encompassed the transfer of substantial assets. Contrary to objectant’s assertion, the fact commencing in April 2002, by reason of the pendency of the divorce proceeding, the decedent resided with the son is not evidence of undue influence. Indeed, the evidence on this issue shows that decedent voluntarily took up residence with his son. “An inference of undue influence cannot be reasonably drawn from circumstances when they are not inconsistent with a contrary inference”.
In this regard, the court notes that the propounded instrument is consistent with decedent’s overall testamentary plan, that is, the exclusion of the other son from decedent’s estate. There is no evidence that son actually exercised any undue influence upon the decedent. Accordingly, the objection of undue influence is dismissed.
Accordingly, the court held that, the proponent’s request for an award of costs pursuant to CPLR 2302 and sanctions is denied. Proponent’s motion is granted; the objections to the March 19, 2003 will are dismissed. A decree may be entered admitting the propounded instrument to probate.
Proponent has the burden of proving testamentary capacity. 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. If you want to contest the testamentary capacity of the testator, you will need the assistance of a Nassau Probate Attorney and Nassau Estate Litigation Attorney in order to file your opposition.