New York Probate and Estate Administration Lawyer Blog
A New York Probate Lawyer said this case is a contested probate proceeding wherein the petitioner, A, the decedent’s second wife, moves for an order pursuant to CPLR 3212 granting summary judgment admitting the proffered instrument dated 21 December 2005 to probate and dismissing the objections filed by three of the four of decedent’s children from his first marriage, X, Y and Z.
On 29 October 2009, the 89 year old decedent died. On 12 September 1984, he was married to petitioner A. An instrument purported to be his last will and testament has been submitted for probate. In his will, petitioner was named the executor. The propounded instrument leaves his entire estate to the petitioner as his surviving spouse and unless she predeceases them makes no provision for the respondents. However, an earlier will dated 29 March 1994, left decedent’s entire estate to objectants.
A New York Wills Lawyer said the respondents have filed objections to probate alleging that: (1) the alleged will was not duly executed as required by law; (2) the propounded instrument was not freely or voluntarily made or executed by the decedent, but was procured by fraud or undue influence practiced upon the decedent by the petitioner or others acting in concert with her; and (3) on the date of the making of the instrument, decedent was not of sound mind or memory and thus incompetent to make a will.
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. A Westchester County Probate Lawyer said 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.
If the moving party meets his or her burden, the party opposing the motion must produce evidentiary proof in admissible form sufficient to establish the existence of a material issue of fact that would require a trial. In doing so, the party opposing the motion must lay bare his or her proof. Mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient to overcome a motion for summary judgment. Summary judgment in a contested probate proceeding is appropriate where an objectant fails to raise any issues of fact regarding testamentary capacity, execution of the will, undue influence or fraud.
The proponent of a will offered for probate has the burden of proving that the instrument was properly executed. A Suffolk County Probate Lawyer said due execution requires that the testator’s signature be affixed at the end of the will in the presence of witnesses, that the testator publish to the witnesses that the instrument is his/her will, the attesting witnesses must know that the signature is that of the testator, and at least two of the attesting witnesses must attest to the testator’s signature and sign their names and affix their residences within a thirty-day period (EPTL 3-2.1). The supervision of a will’s execution by an attorney will give rise to an inference of due execution. Further, as in the case at bar, if a self-proving affidavit and attestation clause accompany the instrument they also give rise to a presumption that the statutory requirements have been met.
Objectants erroneously rely on two typographical or scrivener’s errors in execution in an effort to defeat summary judgment on this objection. The dates of the proffered instrument and the self-proving affidavit are not the same, the will being dated December 21st and the affidavit December 19th, and the latter has a gender error referring to the decedent as “she” and/or “her.” Two attorneys, a partner and an associate, both engaged in the trusts and estates area, the former who supervised the execution of the instrument and the latter who prepared the will as well as served as one of the attesting witnesses, have given sworn testimony of the errors as to the December 19th date in the affidavit and the gender pronouns.
While these are mistakes, under such circumstances, they certainly do not rise to the level of manifesting genuine issues of fact as to due execution as settled in Matter of Nettleton.
Based on the above, the court grants summary judgment and that objection is dismissed as a matter of law.
The burden of proof on the separate undue influence and fraud objections lies with respondents.
In order to prove undue influence, the objectants 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 is insufficient.
Accusations by objectants abound against petitioner and the attorneys on the claim of undue influence. A is accused of systematically and surreptitiously helping herself to her husband’s assets. The most blatant and representative example of the influence being the deed to the Florida condominium in 2008 and otherwise appropriating funds by the abuse of the power of attorney executed simultaneously with the 2005 will.
The court would like to reiterate that the undue influence concept speaks to the testator’s state of mind at the time of the execution of the will. What may have happened several years post execution is not probative of a claim of undue influence leading up to the making of this will. Further, the argument that when the couple moved to Florida in 1990 and he purportedly insisted she no longer work and paid her $1,000 per week in exchange for not working, even if true, did not create as advanced by objectants a climate of “uninterrupted” exploitation or exertion of influence by her that carried forward 15 years later to 2005.
Counsel, it is argued, engaged in unethical conduct in the face of an irreconcilable conflict of interest in preparing decedent’s will at all which should be considered in the sphere of undue influence. MPS had apparently represented petitioner a decade or so prior to December of 2005 and indeed it appears that decedent had been introduced to MPS sometime in 1999. It does not appear disputed that decedent himself reached out to MPS in the summer of 2005 regarding his will.
B wanted his lawyers to prepare his new will against their advice but he insisted. There is nothing to indicate that they in any way attempted to influence him as to the disposition of his property and it remains an essential element of an undue influence case to prove that undue influence was actually exerted on decedent.
Since no proof has been offered that undue influence was actually exerted on decedent, summary judgment is also therefore granted and that objection dismissed as a matter of law.
To prevail upon a claim of fraud, rather than a preponderance of the evidence the higher standard of proof of clear and convincing evidence applies as settled in Simcuski v Saeli and objectants must show that the proponent knowingly made false statements to the 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 mention of fraud in the voluminous opposition submitted. The respondents have likewise failed to sustain their burden on the fraud objection and therefore, so much of petitioner’s motion for summary judgment as seeks to dismiss the respondents’ objection on the ground of fraud is granted.
The petitioner has the burden of proving testamentary capacity. From an overall perspective on the question of testamentary capacity, it is essential that the 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 objects of his bounty. Although he need not have 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.
In determining the requisite capacity to execute a will, the bright line is the precise time of execution. Thus, it has been held that even a person suffering from mental illness including depression, dementia or even incompetency may nevertheless have the necessary testamentary capacity so long as the will is executed during a “lucid interval” (Matter of Friedman).
There is evidence presented on this application that in July of 2005 decedent placed a phone call to MPS and made an appointment to discuss his estate. A face-to-face meeting ensued on 19 July 2005 with B and MPS and another trust and estates attorney at the firm, associate SQB. Various aspects of decedent’s familial relationships and disposition of assets were discussed, as was decedent’s desire to make a new will, and lastly the possibility of a conflict of interest on MPS’s part was discussed. Further, there is every indication from averments of counsel that B was sufficiently competent to make a will.
In the meeting that ensued when the terms of the will were finally discussed including the designated beneficiaries, nominated fiduciaries, etc., and once again there is every indication from counsel of the decedent’s sufficient mental acuity, one of the lawyer’s describing him in a memorandum as seemingly completely competent.”
At the execution ceremony on 21 December 2005, decedent met with three lawyers, MPS, SMB, and partner BF. BF and F witnessed the will and executed the self-proving affidavit. As both witnesses attested that to the best of their knowledge testator was of sound mind, there is a presumption that that was the case as held in Matter of Leach. Beyond presumptions, there is every indication from sworn statements by counsel that B was sufficiently competent to make a will.
The first issue in connection with objectants’ opposition to petitioner’s motion for summary judgment concerns what the latter’s counsel raises as fatal evidentiary flaws in the submission itself.
Objectants’ opposition consists of a 77 page affidavit of counsel with reference to and attachment of a plethora of exhibits including, as germane here, copies of uncertified medical records and copies of deposition transcripts that are unsigned and unattested to. They are therefore not in admissible form and have not been considered on this motion.
The proponent’s motion for summary judgment dismissing the objections is therefore granted.
At Stephen Bilkis & Associates, Nassau County Probate Lawyers, Nassau County Last Will and Testament Lawyers or Nassau County Estate Litigation Lawyers make sure that when you got to the afterlife, your desire, your will for the ones you will be leaving behind is what it shall be. Contact us now for advice or visit our office.