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Court Discusses Will Contest Proceeding


In this Will Contest probate proceeding, the nominated co-executors, the decedent’s nephew, and an attorney who had worked with the decedent, move for summary judgment dismissing the objections of the decedent’s niece, and admitting the propounded instrument to probate.

A New York Probate Lawyer said the decedent, a renowned real estate attorney, executed the propounded instrument in the hospital in September 2003, the date that he was discharged from the hospital with terminal colon cancer. He was readmitted to the hospital and died on the same month at 78 years of age. The decedent’s distributees are his brother and his niece. The niece, the sole objectant, alleges that the decedent lacked testamentary capacity and that the will was the product of undue influence and fraud.
The propounded instrument contains the following pre-residuary bequests: the decedent’s personal property to his brother and his spouse; his cooperative apartment in the Bronx and its contents to her niece; the sum of $100,000 from the a Credit amount to be shared by the five children of the co-executor; and the balance of the tax exempt amount to be shared equally by his brother, brother’s wife and their son and the latter’s three children. The residuary estate is bequeathed to a charitable trust. The propounded instrument specifically states that no provision has been made for the decedent’s niece, or for his sister-in-law, who are the daughter and the surviving spouse, respectively, of the decedent’s predeceased brother, because they “have been adequately provided for from other sources.” The estate is valued at $1,800,000 in the probate petition.

A New York Will Lawyer said the movants contend that the testimony of the decedent’s financial consultant, the attorney-draftsman of the instrument, and all of whom were present when the decedent’s testamentary plans were discussed, as well as the testimony of the three attesting witnesses, establish that the decedent possessed testamentary capacity when the instrument was executed. They also assert that the decedent’s medical records, the testimony of his treating physician and the opinion of another doctor, who reviewed the decedent’s medical records, support this conclusion. Lastly, they argue that the objectant has failed to either rebut their prima facie case of testamentary capacity or meet her burden of proof on the issues of undue influence and fraud.

Westchester County Probate Lawyers said the objectant relies primarily upon the decedent’s medical records, the doctor’s testimony and the affidavit of her mother, to show that there are material factual issues which can only be resolved at a trial. She contends that this is clearly the case in light of the following: the instrument offered for probate is a death-bed will, the decedent never met with his attorney alone, the attorney-draftsman had conversations with persons other than the decedent about the decedent’s testamentary plans; and the objectant was a beneficiary under two drafts prepared by the attorney-draftsman.

Other witnesses essentially gave similar testimony about the events leading up to the execution of the instrument. After the decedent began discussing his testamentary plans retained the lawyer as his estate planning attorney. The decedent met with them in February, 2003. The decedent wanted “in the loop” about his testamentary plans to assist him in carrying out his duties as a co-executor. During this first meeting, the decedent indicated that the objectant should be included as a beneficiary of an equal share of the Credit amount along with the members of brother’s family. The first draft of the will contains such a provision. Thereafter, the decedent’s brother died in March, 2003 and the decedent, as the executor of the brother’s estate, learned that brother’s wife and the objectant were amply provided for by his brother. The decedent told them in a meeting in July 2003 that it was no longer necessary to treat the objectant the same as members of brother’s family. In the second draft of the will that was prepared, the objectant and her mother were each bequeathed $100,000. It is alleged that the decedent thereafter learned that the brother had left an estate with assets valued between $6,000,000 and $7,000,000 and that the objectant had the remainder interest of a $500,000 trust. Consequently, the decedent no longer thought that it was necessary to make any bequest to the objectant.

Thereafter, the decedent, who was hospitalized, telephoned the lawyer and told him that he wanted the second draft changed to delete any provision for the objectant and her mother because “they have been adequately provided for from other sources.” Suffolk County Probate Lawyers said the decedent also told Golden that he wanted to add a provision leaving his cooperative apartment to his niece, his brother’s daughter, and $100,000 to the children.
The lawyer brought the propounded instrument to the hospital, and reviewed the will with the decedent. The lawyer, who was also present, also went over the will with the decedent. The lawyer also testified that he tried to discourage the decedent from leaving $100,000 to lawyer’s children, telling the decedent that he could take care of his own children. Nevertheless, the decedent insisted on making those bequests. The attorney-draftsman of the instrument supervised the execution of the will with hospital personnel acting as the three attesting witnesses. The people present at the execution ceremony stated that the decedent was oriented as to person, place and time, was conversant and displayed a sense of humor.

Both sides rely on the testimony of the decedent’s oncologist. The movant focuses upon that portion where the Doctor stated that he did not detect any changes in the decedent’s mental status from the time he began to treat him in 2002 until the date the will was executed. He also testified that none of his medical treatment team expressed any concern about discussing discharge plans with the decedent on September 5, 2003. The objectant notes that the doctor answered that he would have referred the decedent to a psychiatrist had he been asked whether the decedent was competent to execute a will on September 5, 2003. Moreover, he had expressed some concerns that the decedent did not want to deal with end-of-life plans and, instead, seemed to leave these choices to his nephew, even though the decedent’s prognosis was that he would live for weeks rather than years. The decedent informed the oncologist on September 5, 2003 that he was feeling “blah”.
The decedent was hospitalized from August 23, 2003 until his discharge on September 5, 2003, the date the instrument was executed. The hospital records reflect that the decedent was lethargic and confused when first admitted, that he was taking Tylenol No. 3 for back pain and that he had taken “Ativan” a sedative, on September 5, 2003.

The objectant’s mother avers that the decedent had not been himself since the latter part of 2002 when he became seriously ill while visiting Florida. On that occasion the decedent was hospitalized with a diagnoses of renal failure, and for a time it appeared that he would not leave the hospital. She states that it was the objectant who spent time with the decedent during her entire life and who flew back to New York with him in January, 2003. She cannot understand how the decedent left nothing to the objectant while leaving $100,000 to lawyer’s children. She asserts that the decedent rarely socialized with the lawyer and that their relationship was pretty much limited to working together. Although the decedent had a driver who would sometimes take him to work upon his return to New York in 2003, the decedent told her that he did not actually work and he just wanted to get out of the house. After mother’ husband died in March, 2003, the decedent, who was the executor of his brother’s estate, told her that the estate “was too much for him to handle” and, in fact, bills were not paid in a timely fashion and assets were not properly monitored. She notes that her relationship with decedent’s brother and his family soured after her husband’s death because she buried her husband in accordance with his wishes over the objections of his brother’s family that the burial was not in accord with their Orthodox Jewish beliefs.

Summary judgment motions 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 has made out a prima facie case, the burden of going forward 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. The papers submitted in the summary judgment application are always scrutinized in a light most favorable to the party opposing the motion.

In order to meet their burden of proof on the issue of testamentary capacity, the proponents must show that the decedent understood the nature and consequences of executing a will, that he knew the nature and extent of the property passing under the will and that he knew the natural objects of his bounty and his relations with them. However, the objectant has the burden of proof on the issues of undue influence and fraud. To establish undue influence, the objectant must show not only opportunity and motive, but also that undue influence was actually utilized, i.e., “that the influence exercised…constrained the testator to do that which was against his free will and desire, but which he was unable to refuse or too weak to resist”. To establish fraud, the objectant must show that a false statement was made to the decedent which caused him to dispose of property in his will in a manner different than he would have absent the false statement.

Here, the proof offered by the proponents, standing alone, clearly makes out a prima facie case on the issue of testamentary capacity. Moreover, the proponents are correct in contending that the fact that the decedent suffered from illness or physical infirmities is not sufficient by itself to raise a material issue of fact with respect to testamentary capacity. They might also be correct in stating that some of the proof that they have presented can be viewed as coming from disinterested parties, while the same cannot be said about the proof offered by the objectant’s mother. Lastly, their contention that the decedent ultimately omitted any legacy to the objectant and her mother because he became increasingly aware that they had been amply provided for by his brother is certainly plausible.

Notwithstanding the above, viewing all of the proof presented in this motion in the light most favorable to the objectant, there remains the possibility that a jury might draw inferences that would lead it to conclude either or both that the decedent lacked testamentary capacity and that the will was the product of undue influence. Such inferences might be drawn from the following: the allegation that the decedent lacked the capacity in 2003 to carry out his duties as the executor of his brother’s estate; that the decedent always had others with him when he met with his attorney to discuss his testamentary plans; that the decedent was dependent upon Brother’s son, a doctor, to make medical decisions; that notwithstanding that there had not been any change in the relations between the decedent and the objectant, the legacy to the objectant was reduced in the second draft of the will and then disappeared in the final draft, while the children of one of the proponents, an attorney who was present while the decedent discussed his testamentary plans with his own attorney, suddenly became beneficiaries and the bequests to brother’s family, who was feuding with the objectant’s family, increased; that the testimony of the decedent’s doctor might be construed as evincing a reluctance to definitively state that the decedent possessed testamentary capacity on September 5, 2003; and that although the will was executed in the hospital on the date that the decedent was discharged, his doctor was already of the opinion that his life would only last for weeks and, in fact, the decedent succumbed to cancer four days after the instrument was executed.

For the reasons stated above, the material issues of fact with respect to testamentary capacity and undue influence can only be resolved at a trial, and mandate that the branches of the motion for summary judgment seeking to dismiss these objections and to admit the will to probate be denied. However, the objectant has failed to show that anyone made a false statement to the decedent which caused him to change his testamentary plans. Consequently, the branch of the motion seeking to dismiss any objection based upon fraud must be granted. This matter shall appear on the ready for trial calendar upon compliance with Uniform Rules 207.29 and 207.31.

An estate of a person may be divided according to the testator’s desire. However, it conform with the legalities mandated by law. Here in Stephen Bilkis and Associates, our Bronx Probate attorneys will help an oppositor to the probate of a will in case a right to inheritance of an heir was disregarded. For proper execution of a Will, consult our Bronx Estate lawyers now.

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