Surrogate AndersonESTATE OF LEONARD GOLD, Deceased (15/2988) — In this contested probate proceeding in the estate of Leonard Gold (“decedent”), decedent’s son filed objections alleging lack of due execution, lack of capacity, undue influence, fraud and forgery. Proponents move for summary judgment dismissing all objections.Decedent died on June 27, 2015, at the age of 95. His will, dated December 7, 2011, left his entire estate of about $5 million to three of his four children (“proponents”), all of whom he named as co-executors. The will made no provision for his fourth child (“objectant”).Legal Standard for Summary JudgmentOn a summary judgment motion, the movant must make a prima facie showing of entitlement to judgment as a matter of law and tender sufficient evidence in admissible form to show the absence of any disputed material facts (see Alvarez v. Prospect Hosp., 68 NY2d 320 [1986]; Westhill Exports, Ltd v. Pope, 12 NY2d 491 [1963]). If the movant succeeds in doing so, the burden then shifts to the party opposing summary judgment, who must submit evidence in admissible form demonstrating the existence of a genuine issue of material fact (see Alvarez, supra, at 324; Zuckerman v. City of NY, 49 NY2d 557, 562 [1980]). Mere conclusions or unsubstantiated allegations are not sufficient to defeat a motion for summary judgment (see Zuckerman, supra, at 562; William Iselin & Co. v. Landau, 71 NY2d 420, 425-26 [1988]; Matter of Gaddy, NYLJ, Dec. 5, 2013, at 36, [Sur Ct, NY County 2013]).Testamentary CapacityProponents have the initial burden of coming forward with evidence that decedent had capacity to execute the propounded instrument. In order to establish capacity, proponents must show that decedent understood the nature and extent of his property and the provisions of the instrument, and that he was able to identify the natural objects of his bounty (see SCPA §1408; Matter of Kumstar, 66 NY2d 691, 692 [1985], rearg denied 67 NY2d 647 [1986]; Matter of Weltz, 16 AD3d 428 [2d Dept 2005]). Less lucidity is required for the execution of a testamentary instrument than for the execution of contracts and other legal documents (see Matter of Coddington, 281 AD 143 [3d Dept 1952]), aff’d 307 NY 181 [1954]). Moreover, there is a legal presumption that a testator has the requisite capacity to execute a testamentary instrument (Matter of Smith, 180 AD 669 [2d Dept 1917]; Matter of Hollenbeck, 65 Misc 2d 796, 318 NYS2d 604 [1969], affd, 37 AD2d 922 [4th Dept 1971]). A testator’s advanced age or mental infirmity does not preclude a finding of capacity (Matter of Fiumara, 47 NY2d 845 [1979]).Here, the attorney-drafter submits an affirmation in support of the motion in which he states that he had known decedent for ten years prior to his death and had drafted “several wills” for him, none of which made any provision for objectant. The attorney-drafter describes decedent as a “very independent man with a sharp mind who handled all his own personal and financial matters.” At some point in 2011, decedent asked the attorney-drafter to revise the trust created under his prior will dated September 2, 2010, to remove his granddaughter as a remainder beneficiary. The attorney-drafter prepared a new will incorporating the change and made an appointment with decedent for its execution. He states that decedent “was clear-minded in his intentions and acted independently” during all their interactions, including on the day the propounded instrument was executed. An affirmation submitted by the attorney-drafter’s associate states that decedent “was very independent, mentally acute and handled all his own personal and financial matters.”As further evidence of testamentary capacity, proponents submit the “affidavit of attesting witnesses” annexed to the will, contemporaneously executed by the three witnesses, who state that decedent was “of sound mind, memory and understanding and not under any restraint or in any respect incompetent to make a will.” Moreover, two of the three attesting witnesses have submitted supporting affidavits in which they state that, during the execution ceremony, decedent showed “no physical or mental limitations” and appeared “entirely competent to execute his will.” One witness recalls that, immediately prior to the will’s execution, decedent discussed with her his past experiences as a pilot.The contemporaneous witnesses’ affidavit and the affirmations of the attorney-drafter and his associate establish prima facie that decedent had the requisite capacity to execute a will. The burden now shifts to objectant to demonstrate that there exists a material issue of fact precluding summary judgment.In objectant’s affidavit in opposition to the motion, he refers to decedent’s “progressively deteriorating and erratic behavior…since the mid 1990s” and describes decedent’s gradual alienation from certain friends and family and his increasing hostility and bigotry as he got older. According to objectant, the breach between him and decedent began in 2003 in the home of decedent and his wife (objectant’s mother). He states that decedent, without apparent provocation, suddenly began shouting obscenities and ordered objectant to leave and never to contact decedent and his wife again. Objectant further states that decedent’s intense animosity toward him continued to the extent that decedent forbade his other children from notifying objectant when their mother died in 2009. After objectant visited his mother’s grave in 2010, decedent sent him a letter stating “when you visit you [sic] mother don’t leave any souvenirs, and make certain that I am not there because if I am you will need crutches to go home. Lenny.” Objectant states that, in subsequent years, he wrote letters to decedent in an attempt to reestablish their relationship, but decedent’s responses were “irrationally hurtful, angry and displayed obvious confusion.”In further support of his lack of capacity objection, objectant describes an incident which occurred about four or five years prior to decedent’s execution of the instrument. He states that decedent deliberately broke a glass goblet at his grandson’s party “and attempted to attack and assault” another family member with a shard of broken glass and had to be physically restrained. Finally, objectant recounts a story he heard from his brother that, at some unspecified date, decedent “stalked around the neighborhood” making threats of violence after receiving a parking ticket. This hearsay account lacks sufficient specificity to be deemed probative on the issue of capacity.The forgoing incidents constitute the sole basis for objectant’s allegation that decedent lacked capacity. However, objectant’s allegations do not support a claim that decedent lacked the requisite capacity at the time he executed his will on December 7, 2011. Even a “persistent or stubborn prejudice or misjudgment [on a testator's part] as to persons or situations” would not be enough to support a finding that the testator lacked capacity to execute a will (Matter of Martin, NYLJ Oct. 14, 2015, at 22, col 5 [Sur Ct, NY County]). At best, objectant’s submissions demonstrate that decedent displayed a hot-temper and an intense ongoing anger toward objectant. Such a showing falls far short of creating a question of fact as to decedent’s testamentary capacity. Accordingly, the objection alleging lack of capacity is dismissed.Due ExecutionProponents have the burden of making a prima facie showing that the propounded instrument was duly executed in accordance with the statutory requirements (EPTL §3-2.1; Matter of Falk, 47 AD3d 21, 26 [1st Dept 2007]). A presumption of compliance exists when the will’s execution was supervised by an attorney (Matter of Halpern, 76 AD3d 429, 431 [1st Dept 2010], affd 16 NY3d 777 [2011]; Matter of Moskoff, 41 AD3d 481, 482 [2d Dept 2007]). Moreover, the inclusion of an attestation clause constitutes prima facie evidence of due execution (Matter of Collins, 60 NY2d 466, 471 [1983]; Matter of Sideris, NYLJ, Mar. 14, 2016, at 28 [Sur Ct, NY County 2016]).Proponents have made a prima facie case for due execution. The will was signed by decedent and witnessed by three individuals who signed the aforementioned attestation clause. According to the affidavits submitted by the attorney-drafter and his colleagues in support of proponents’ motion, the will’s execution was supervised by the attorney-drafter. Moreover, the contemporaneous witnesses’ affidavit attached to the instrument confirms that the will was subscribed by decedent in their presence and that he declared the instrument to be his will. Objectant has not introduced any evidence to put into question that the execution requirements of EPTL §3-2.1 were met. Therefore, his objection on the ground of lack of due execution is dismissed.Undue InfluenceTo succeed on their motion for summary dismissal of the undue influence objection, proponents must make a prima facie showing that the propounded instrument was an expression of decedent’s intent and free will. The attorney-drafter’s affirmation establishes that the propounded instrument was consistent with the testamentary plan in decedent’s prior wills and that proponents were not present during the preparation and execution of the instrument. The attorney-drafter’s associate affirms that no-one in their office ever communicated with any of the proponents about decedent’s estate planning. In light of these facts, the court concludes that proponents have made a prima facie case that decedent was free of any undue influence when he executed the propounded instrument.The burden thus shifts to objectant to demonstrate that there is a triable issue of fact as to undue influence. In his pleading, objectant states, upon information and belief, that decedent’s will was procured by the undue influence of persons not presently known. His “circumstantial evidence” for such belief is the fact that decedent had four children and his presumption that the estate “was to be divided equally among all four” of them. He thus concludes that decedent would not have excluded objectant as a beneficiary if he had not been under the influence of proponents or others.The foregoing carries no weight in the determination of this issue. Objectant offers no theory or specific allegations, much less evidence, to create a question of fact as to undue influence. Objectant’s own affidavit provides the court with a far more plausible explanation for decedent’s failure to provide for objectant in his will: their acrimonious relationship.Conclusory allegations and speculation, which are all that objectant offers in support of his undue influence objection, are insufficient to defeat a summary judgment (see e.g., Matter of Korn, 25 AD3d 379 [1st Dept 2006]; Matter of Young, 289 AD2d 725, 727 [3d Dept 2001]). Given the absence of any evidence to support his objection, the court concludes that objectant has failed to raise a triable issue of fact. Accordingly, his undue influence objection is dismissed.FraudFraud requires a showing that a knowingly false statement caused the decedent to execute a will significantly different from the will he would have executed in the absence of such statement (see Matter of Ryan, 34 AD3d 212, 215 [1st Dept.2006]). Proponents, through the above-described submissions of the attorney-drafter and his associate, have made a prima facie case that no fraud was perpetrated upon decedent to motivate him to execute the propounded instrument. Objectant provides no evidence to support a fraud objection. Indeed, his pleadings do not even state the elements of a fraud claim. Objectant has failed to raise any triable issue of fact with respect to his allegation of fraud. The fraud objection is dismissed.ForgeryObjectant asserts that the propounded instrument “is not the last will and testament” of decedent. However, the attorney-drafter, his associate, and all three of the attesting witnesses have submitted sworn statements that they each witnessed decedent sign his name on the last page of the propounded instrument. Not only has objectant failed to contravene these assertions, he has failed to offer any evidence whatsoever to create a question of fact as to forgery.Accordingly, this objection must also be dismissed.Finally, objectant’s contention that summary judgment should be denied because proponents have not submitted any affidavits from individuals “with personal knowledge of the facts,” is mentioned if only to demonstrate that it has not been overlooked. Simply put, such contention is belied by the record as described above.For the foregoing reasons, proponents’ motion for summary judgment dismissing the objections to probate is granted in its entirety.Settle decree.Dated: July 26, 2018
