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 objections to the offered will and admitting it to probate. The decedent died on March 19, 2006. Decedent had no issue nor any known relatives. The proponent was named as the sole residuary beneficiary in a prior will of the decedent dated December 1, 1993. The proponent is the daughter of the decedent’s predeceased husband, who died on November 3, 1998. The will offered for probate dated April 6, 1999 bequeaths one-half of decedent’s residuary estate to a long-time friend who resides in Germany, one-quarter to a neighbor, and one-quarter to another neighbor. A friend, is the nominated executor and the proponent.
A New York Will Lawyer said that, in December 1998, the proponent commenced a guardianship proceeding pursuant Article 81 of the Mental Hygiene Law in Supreme Court, Nassau County, alleging, among other things, that the decedent was incapable of managing her affairs. During the pendency of the guardianship proceeding, decedent executed a will dated January 11, 1999, in which she left her residuary estate to her friend, $50,000.00 to her neighbor and the sum of $1,000,000.00 to the American Red Cross. The January 1999 will was executed in the office of the attorney who drafted the will. The attorney first represented the decedent in the guardianship proceeding. The court evaluator appointed in the guardianship proceeding, reported to the Supreme Court that in his opinion, based on an interview with the decedent, decedent was not an incapacitated person and that no guardian was required. The guardianship proceeding was discontinued by stipulation dated March 22, 1999.
A Queens Probate Lawyers said that, the propounded will dated April 6, 1999 was also prepared by the said attorney. She met with the decedent on at least four occasions between the January 1999 will and the April 1999 will. The propounded will eliminated the bequest to the American Red Cross, increased the bequest to her neighbor and provided a bequest for another neighbor. The will was executed in the decedent’s home and the will’s execution was supervised by the said attorney. As referenced above, the decedent had previously executed a will dated December 1, 1993 that left her entire estate to her husband if living, or if not living, to the proponent. A second guardianship proceeding, commenced in July 2001 by the proponent, resulted in an order and judgment dated October 20, 2001 appointing the proponent and guardian for the personal needs of decedent and the guardian for the property management of decedent.
A Long Island Probate Lawyers said that, the proponent has interposed the following objections dated October 3, 2007 to the propounded instrument: 1) On the 6th day of April, 1999 the said decedent, was not of sound mind or memory and did not know the natural objects of her bounty or the nature and extent of her assets thereby rendering her incompetent to execute a last will and testament. 2) That the execution of the above-stated paper writing was not the free and voluntary act of the testatrix, but that the above-stated paper writing was procured by fraud practiced upon the testatrix by her neighbors, beneficiaries under purported Last Will and Testament of the decedent, or by some other person or persons acting in concert or privity with them, whose name or names are at present unknown to the objectant. 3) That the execution of the above-stated paper writing was not the free and voluntary act of the testatrix, but that the above-stated paper writing was procured by undue influence practiced upon the testatrix by her neighbors beneficiaries under purported Last Will and Testament of the decedent, or by some other person or persons acting in concert or privity with them, whose name and names are at present unknown to the objectant. 4) That the above stated paper writing does not reflect the testamentary intentions of the decedent.
A Nassau Estate Litigation Lawyer said that, petitioner’s motion for summary judgment is supported by the following: the affidavits of petitioner, the attorney who drafted and supervised the execution of the propounded instrument, the court evaluator, the deposition testimony of the attesting witnesses, petitioner, objectant, the instrument offered for probate, copies of decedent’s prior wills and the filed objections. Petitioner also submitted a memorandum of law.
The issue in this case is whether the proponent’s motion for summary judgment dismissing objections to the offered will and admitting it to probate should be granted.
The Court in deciding the case said that, the proponent of a summary judgment motion must make a prima facie showing of entitled to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of. 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 contested probate proceedings 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 fact.
The proponent has the burden of proving testamentary capacity. It is essential that a testatrix understand in a general way the scope and meaning of the provisions of her will, the nature and condition of her property and her relation to the persons who ordinarily would be natural objects of her bounty. A testatrix must 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. “When there is conflicting evidence or the possibility of drawing inferences from undisputed evidence, the issue of capacity is one for the jury”.
In the instant case, an affirmation of decedent’s treating physician who examined decedent in connection with the first guardianship proceeding, an affirmation of an examining physician in connection with the second guardianship proceeding and affidavits of a home health aide and a neighbor have been submitted by objectant in support of her position. To demonstrate the testamentary capacity of decedent, petitioner relies on her own deposition testimony, the affidavit of the court evaluator in the first guardianship proceeding, the testimony of the attesting witnesses and the attorney who drafted and supervised the execution of the document. The affirmation of decedent’s treating physician raises issues concerning decedent’s cognitive ability. The treating physician states in his affirmation dated November 17, 1998, the following: “Decedent has been a patient of his for the past ten years. Decedent suffers from organic brain syndrome. Her ability to communicate is impaired leaving her with the ability to communicate clearly only on occasion. The Decedent lacks the capacity to reason or make decisions. Her infirmities also render the decedent unable to manage her property and financial, affairs.” I am of the opinion that the condition of the decedent will not improve.”
The treating physician recommended that the court find decedent to be an incapacitated person. The affirmation of another physician dated June 18, 2001 to the same effect, post-dates the execution of the will by approximately two years. Affidavits of individuals were also submitted by objectant detailing erratic behavior on the part of decedent in the months prior to the execution of the propounded will. Petitioner, however, paints the picture of decedent as a competent, independent individual through her own testimony based on her frequent conversations with decedent after decedent’s husband’s death, the testimony of the attorney who drafted the propounded instrument and who stated that decedent chose not to include her stepdaughter in her will. The attorney-draftsman stated that decedent was upset that Helga had commenced the guardianship proceeding and was concerned about Helga trying to get her money. Based on the conflicting submissions submitted, it is concluded that there are triable issues of fact with respect to the issue of decedent’s testamentary capacity.
The objectant bears the burden of proof on the separate issues of fraud and undue influence. To prove fraud, the objectant must show by clear and convincing evidence that a false statement was made to the testator that induced her to make a will disposing of her property differently than she would have if she had not heard the statement. There is simply no evidence that the will was the product of fraudulent conduct and, therefore, the objection on said ground 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 her will, her family relations, the condition of her 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 fostered by the exploitation of a relationship of trust and confidence. Without a showing that it was actually exerted upon the decedent, mere speculation that opportunity and motive to exert such influence existed is insufficient.
With the above in mind, it is important to reiterate that in order to defeat a motion for summary judgment, the objectant must demonstrate that there is a genuine triable issue by allegations which are specific and detailed, substantiated by evidence in the record and that mere conclusory assertions will not suffice.
The proponent argues that the confidential relationship that allegedly existed between the neighbors, together with their involvement in decedent’s affairs, is sufficient to deny the motion for summary judgment. The proponent notes the neighbors increased involvement in decedent’s day-to-day affairs including rendering assistance in shopping, banking, bill paying and healthcare after decedent’s husband died. Julia also spoke to the decedent about making a new will. If a confidential relationship existed between Rosa and Julia and the decedent, then an inference of undue influence arises requiring an explanation for decedent’s disposition. A confidential relationship may be inferred if the party so charged has disparate power and control over decedent. Whether or not a confidential relationship existed between the decedent and a beneficiary is usually a question of fact. Under the circumstances, and given the magnitude of the bequests to the beneficiaries, triable issues of fact exist with respect to undue influence.
Accordingly, the court held proponent’s motion for summary judgment dismissing the objections is granted to the extent of dismissing the objection of fraud and is otherwise denied. The above constitutes the order of this court.
The proponent has the burden of proving testamentary capacity. A testatrix must understand the plan and effect of the will, and less mental faculty is required to execute a will than any other instrument. If you wish to question the will due to the testamentary capacity of the testator, seek the assistance of a Nassau Will Contest Attorney and Nassau Estate Litigation Attorney at Stephen Bilkis and Associates in order to file your opposition the probate of the will.