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Court Finds Decedent’s Testamentary Capacity is in Question


This case is contested probate proceeding brought to the court by the nephew of the decedent, A. Objectant moves for an order pursuant to CPLR 3212 granting summary judgment denying probate to the two propounded wills dated 19 October 2001. A New York Probate Lawyer said the proponent, B, cross moves for summary judgment dismissing the objections and admitting the propounded instruments dated 19 October 2001 to probate. The objectant has interposed his objections to the propounded instruments alleging undue influence and lack of testamentary capacity. Objectant also seeks to disqualify B as executor of the estate pursuant to SCPA 707.

On 19 December 2001, decedent C died. He was survived by five brothers and sisters and nieces and nephews of predeceased siblings. Proponent B petitioned for probate of two instruments dated the same day, 19 October 2001. Both instruments contain the names of L, M, and N as the attesting witnesses and O, notary, with a stamp and signature.

Both instruments nominate B as executrix; one of them nominates D as successor. Both instruments divide the estate equally between D and B.

A New York Will Lawyer said as one of the decedent’s distributees was incapacitated, a guardian ad litem was appointed to represent her interest in the proceeding. The guardian ad litem’s investigation uncovered some potential problems with the probate of the wills. As a result, a settlement was negotiated and agreed to wherein the guardian ad litem’s ward would receive one-seventh of the estate. The settlement was subject to court approval. The settlement, however, was never approved because the guardian ad litem’s ward died. While awaiting the appointment of the appropriate fiduciaries to enter into a settlement agreement, the court granted objectant’s motion to excuse his default in filing objections. Objections were filed on 30 October 2008. There is no allegation that the propounded instruments were not executed in accordance with statutory formality or that they were procured by fraud.

In support of the motion to deny probate to the will, the objectant submits the deposition testimony of L, M and N, the witnesses to the will, the affidavits of S, T and U, the guardian ad litem report, affidavits of the proponent dated 8 October 2002 and 29 May 2007 and certain medical records. In opposition and in support of the cross motion to dismiss the objections, the proponent submits her own affidavit, the affidavits of the attesting witnesses, the deposition transcript of O, the notary, banking records, and medical records. In opposition to the cross motion, the objectant submits the affirmation of counsel, the affidavit of P, tax records and a report of the guardian ad litem. In further support of the cross motion, the proponent submits her own affidavit and various records related to the maintenance and upkeep of the decedent’s residence located at 84 Lakeview Avenue, Lynbrook, New York.

A perusal of the respective submissions shows that on the very day his wife V died, 19 October 2001, decedent, 92 years of age, executed two wills containing essentially the same provisions, i.e., dividing his estate equally between Gloria B and D. Both beneficiaries came to decedent’s home that day and participated in the preparation and execution of the wills, apparently each bringing a form; proponent gave inconsistent accounts as to whether decedent filled in the forms or whether she did. The stated purpose of executing two wills that day was that decedent was unsure as to where he was going to reside in the future, either Connecticut or New York. Proponent also obtained a power of attorney naming herself as attorney-in-fact. By all accounts, decedent had health problems, was hard of hearing, legally blind and obviously upset and distraught on the day his long-time spouse died. One witness, V, stated decedent “was incoherent of everything and did not know what was going on around him.” The submissions further show that decedent was taken to Franklin General Hospital the day after his wife died. The hospital records state a change in mental status, Alzheimer’s Disease; dementia; glaucoma; restraints in place and very restless; patient very confused and does not follow directions. The hospital discharge summary, dated 25 October 2001, states a final diagnosis “confusion secondary to dementia.” Decedent was transferred from Franklin General to a rehabilitation and healthcare center.

A Westchester County Probate Lawyer said the attesting witnesses N and O are both related to D. They state that the decedent asked them to witness his will and they observed decedent sign the will. Each executed a SCPA 1406 affidavit stating that in all respects the decedent appeared to be of sound and disposing mind, memory and understanding, competent to make a will, and not under any restraint. The attesting witnesses, however, disagree as to whether the wills were already filled out or whether decedent filled them out.

A Suffolk County Probate Attorney said that as held in Alvarez v Prospect Hosp., the proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact. It was also established in Winegrad v New York Univ. Med. Ctr. That 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 based on the ruling in the case of Zuckerman v City of New York. Summary judgment in contested probate proceedings is appropriate where a contestant fails to raise any issues of fact regarding execution of the will, testamentary capacity, undue influence or fraud.

The proponent has the burden of proving testamentary capacity. It is essential that a 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 court finds that there are issues of fact as to the decedent’s testamentary capacity. It appears that the wills were drafted and executed on the very day that decedent’s wife died; that decedent, who had serious health issues including progressive dementia, was emotionally distraught and in a weakened physical condition; that the medical records of decedent’s admission to the hospital the day after the execution of the instruments show that he was confused and had a change in mental status. Notwithstanding the testimony of the attesting witnesses, there are issues of fact as to the decedent’s testamentary capacity. Accordingly, both the motion and cross-motion on the issue of testamentary capacity are denied.

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 maker furthered by the exploitation of a relationship of trust and confidence. Without a showing that undue influence was actually exerted upon the decedent, mere speculation that opportunity and motive to exert such influence existed is insufficient. Circumstantial evidence is sufficient to warrant a trial on the question of undue influence.

In this case, the court finds that the proponent had the motive and opportunity to exercise undue influence upon the decedent. The evidence shows that decedent’s wife died on 19 October 2001, the very day he executed the wills. He was in a weakened physical condition. There are inconsistencies as to whether the wills were already filled out by the beneficiaries or whether the decedent filled them out. The beneficiaries (decedent’s niece and nephew by marriage) participated in the preparation and execution of the instruments and that decedent appointed proponent attorney-in-fact. Whether or not the relationship of the proponent with the decedent is ultimately found to be considered confidential, the court finds that a question of fact has been raised regarding possible undue influence.

An inference of undue influence arises, requiring the beneficiary under the instrument to explain the circumstances of the bequest, when the beneficiary was in a confidential or fiduciary relationship with the testator and was, in some way, involved the drafting of the will. This inference places the burden on the beneficiary to explain the circumstances of the bequest and the adequacy of this explanation presents a question of fact for determination by the jury. The proponent’s affidavit regarding her relationship and interaction with the decedent, offered to explain their circumstances, may not be used in support of her cross motion, because it is clearly excludable at trial.

The proponent herself recognizes that there are triable issues. In her affidavit in opposition to the objectant’s motion for summary judgment dated 18 June 2009, proponent states:

“[Objectant’s] attorney would have this court believe that my brother D and I acted with such deceitful motives, because we brought two will forms, assembled witnesses, actively participated in the preparation and brought about the execution of will (sic) so that only D and I would gain as sole beneficiaries of the entire estate, both of us receiving one-half of the estate, the same day that our aunt died, and that such disposition of the estate completely cut out the living natural relatives of C. If I did not know the truth, I would have to agree this sounds suspiciously improper.”

The court notes that triable issues of fact do exist. Accordingly, that branch of the objectant’s motion to grant summary judgment on the issue of undue influence and that branch of the proponent’s cross motion to dismiss the objection of undue influence are denied.

With respect to objectants’ application to disqualify proponent pursuant to SCPA 707(1)(e), the court need not determine such issue as, if the will is admitted to probate, objectant would have no standing to challenge proponent’s appointment as fiduciary and, if the will is not admitted to probate, proponent would not qualify to serve as fiduciary (SCPA 1001).

Nassau County Probate Attorneys, Nassau County Last will and Testament Attorneys and Stephen Bilkis & Associates have the better hand in probate proceedings. If you just lost a loved one and are placed in the same position as the family narrated above, please do not hesitate to call our toll free number or visit our place of business for a better understanding of the law behind this issue. We are a team of legal experts who can provide you with invaluable legal advice that may help reveal the true intentions of your loved one who has gone to rest.

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