The following papers were considered in deciding this motion to compel the respondents to file an answer:Papers NumberedNotice of Motion 1Affirmation of Lori Douglass, Esq., in Support 2Affidavit of Lu-Shawn Thompson in Support 3Affidavit of Milana Khanimova in Support 4Affidavit of Wayne Williams in support 5Affidavit of John Morken, Esq., in Opposition 6Affidavit of Clara Thompson in Opposition 7Affidavit of Catherine Gaskins in Opposition 8Affirmation of Lori Douglass, Esq., in Reply 9Affidavit of Lu-Shawn Thompson in Reply 10Affirmation of Norman White, Esq., in Reply 11Affirmation of GAL in Reply 12Affirmation of Jaclene D’Agostino in Reply to GAL Affirmation 13DECISION AND ORDER In a proceeding to vacate a decree issued on November 2, 2016, which admitted to probate a will dated September 27, 2016 (the “2016 Will), Lu-Shaw Thompson (“Lu-Shawn”), the decedent’s wife and executor, moves to dismiss the petition of Clara Thompson, Catherine Gaskin, Asia Gaskin, Alia Gaskin, William Thompson and Thomas Adams (collectively referred to as the petitioners) beneficiaries under a prior will, to vacate the probate decree. In the alternative, Lu-Shawn asks for summary judgment dismissing the petition. The decedent, Kenneth Thompson, died on October 8, 2016, survived by a spouse, Lu-Shawn and two minor children. On November 2, 2016, the 2016 Will was admitted to probate and letters testamentary issued to Lu-Shawn, the nominated executor.On December 14, 2016, the petitioners filed a petition to compel Lu-Shawn to produce the original of a will executed on August 7, 2008 (the “2008 Will,”) or a copy if the original was not available. On December 20, 2016, Lu-Shawn, Lori Ann Douglass, Esq. (“Douglass”), the drafter of the 2016 Will and Jeffrey Lowin, Esq. (“Lowin”), the drafter of the 2008 Will were ordered to appear and be examined about the 2008 Will. The order required them to produce the original, or a copy of the 2008 Will.On January 18, 2017, the parties entered into a so ordered stipulation consenting to the examinations. Douglass and Lowin appeared for the examination the next day. They brought copies of the 2008 Will but refused to produce it to the petitioners, arguing that the copy was protected by the attorney-client privilege. Clara Thompson (“Clara”), the decedent’s mother and one of the petitioners, moved to hold Lu-Shawn, Douglass and Lowin in contempt of court. Douglass opposed, claiming she only was required to bring the copy to court, not provide a copy to Clara Thompson. The application for contempt was heard by the Surrogate (Johnson, S.) on February 24, 2017. At the conclusion, Douglass furnished the Clara with a copy of the 2008 Will and filed a copy with the Court. Lowin furnished Clara with a copy of the will the decedent executed in July, 2008 and filed the original with the Court. Clara withdrew her application for contempt.Lu-Shawn, Douglass and Lowin were then deposed on the circumstances under which the 2016 Will was drafted and executed. On April 17, 2017, the petitioners brought this proceeding to vacate the probate decree of November 2, 2016. On June 15, 2017, Lu-Shawn filed her objections to the petition. On July 6, 2017, Lu-Shawn executed a renunciation of her interest under the 2016 Will. On February 6, 2018, Lu-Shawn moved to dismiss the proceeding pursuant to CPLR §§3211(a)(3) and (7) or, in the alternative, for summary judgment dismissing the proceeding.DiscussionLu-Shawn first moves to dismiss the petition for lack of standing pursuant to CPLR 3211(a)(3). Where standing is placed in issue, the petitioners are required to prove their standing in order to be entitled to relief (see Deutsche Bank Natl. Trust Co. v. Weiss, 133 AD3d 704, 705 [2d Dept 2015]; Bank of NY Mellon v. Gales, 116 AD3d 723 [2d Dept 2014]).The petitioners, Clara Thompson, Catherine Gaskin, Asia Gaskin, Alia Gaskin, William Thompson and Thomas Adams, are given general bequests in the 2008 Will, and nothing under the 2016 Will. It is beyond peradventure that they are individuals adversely affected by probate of the 2016 Will (SCPA §1410; see Matter of Skelton, NYLJ, Mar. 20, 2000, at 25, col 1 [Sur Ct, NY County] citing Matter of Morse, 177 Misc 2d 43 [Sur Ct, NY County 1998]).Lu-Shawn argues that her husband’s physical revocation of the 2008 Will deprives the beneficiaries under that will from contesting probate of the 2016 Will. However, the law is clear that the beneficiaries have standing despite a purported revocation of the prior will (Matter of Werdinger, NYLJ, June 12, 2001, at 33, col 6 [Sur Ct, Kings County]).Lu-Shawn next moves to dismiss the petition for failure to state a cause of action (CPLR 3211a[7]). “In deciding a motion to dismiss a complaint pursuant to CPLR 3211(a)(7) for failure to state a cause of action, the court must accept the facts alleged in the complaint as true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory” ( Von Maack v. Wyckoff Hgts. Med. Ctr., 140 A.D3d 1055 [2d Dept 2016, citing Fough v. August Aichhorn Ctr. for Adolescent Residential Care, Inc., 139 AD3d 665 [2d Dept 2016]; Hutchison v. Kings County Hosp. Ctr., 139 AD3d 673 [2d Dept 2016]; Minogue v. Good Samaritan Hosp., 100 AD3d 64 [2d Dept 2012]).As the SCPA does not provide guidance on the standard for a vacating a probate decree, the CPLR governs (SCPA §102). Thus, CPLR 5015 governs an application to vacate a probate decree (Matter of American Comm. for the Weizmann Institute of Science v. Dunn, 10 NY3d 82, 95 [2008]).The petitioners argue that the probate decree should be vacated on the ground of “fraud, misrepresentation, or other misconduct of an adverse party” (CPLR R 5015[a][3]). The petitioners argue that the decree was obtained by misrepresentation because the guardian ad litem for the children in the probate proceeding was never informed about the prior will. However, the guardian ad litem submitted an affirmation that he took no position on the petitioners’ allegations other than to say that comparison of the 2008 Will with the 2016 Will did not change his opinion that probate of the 2016 Will was in the children’s best interests.The petitioners next argue that the Court should vacate the probate decree in the interest of justice because Lu-Shawn’s failure to file a copy of the 2008 Will deprived them of the right to examine the witnesses to the execution of the 2016 Will or to contest the probate of the 2016 Will. The Surrogate’s Courts may vacate a probate decree where “a party has been misled or defrauded into not interposing objections to the probate of a will” (Matter of Sandow, 25 Misc 2d 356, 357 [Sur Ct, NY County 1960]; see Matter of Hinderson, 4 Misc 2d 559 [Sur Ct, Westchester County 1956]).In the instant case, there was no fraud or misrepresentation. The petitioners were not entitled to notice of the probate proceeding because the 2008 Will, or a copy, was not on file with the Court (SCPA §1403[1][d]). Neither Lu-Shawn nor her attorney advised petitioners that there was no prior will. Just the opposite, they confirmed the existence of the prior will. However, they failed to produce it upon reasonable request. Although Lu-Shawn’s refusal to provide the petitioners’ with a copy of the prior will, knowing that it provided bequests for the petitioners, was intended to delay any attempt by the petitioners to challenge the probate of the 2016 Will, this is insufficient to trigger relief under CPLR 5015(a)(3) (Matter of Sandow, 25 Misc 2d 357, 358 [Sur Ct, NY County 1960]).CPLR 5015(a)(2) provides for relief where newly discovered evidence is produced that “would probably have produced a different result.” Accordingly, a petitioner seeking to vacate a probate decree must establish “with some degree of probability that his (or her) claim is well founded, and that, if afforded an opportunity, he (or she) will be able to substantiate it ” (Matter of Musso, 227 AD2d 404, 406 [2d Dept 1996] cited with approval in Matter of American Comm. for the Weizmann Institute of Science v. Dunn, 10 NY3d 82, supra at 97; see also Matter of Westberg, 254 App Div 320, 321 [1st Dept 1938] “facts sufficient to afford a substantial basis for the contest and reasonable probability of success”).The record shows that Douglass supervised the execution of the 2016 Will. It is signed by the decedent at the end and his signature witnessed by Douglass and a paralegal and they executed a self-proving affidavit. Lu-Shawn has established a prima facie case that the 2016 Will was duly executed (see Matter of Holbert, NYLJ, Jan. 22, 2008, at 27, col. 1 [Sur Ct, Bronx County]; Matter of Richman, NYLJ, August 10, 1998, at 2, col. 3 [Sur Ct, Kings County]; Matter of Phillips, NYLJ, July 28, 1995, at 31, col. 6 [Sur Ct, Bronx County]).,To show that the decedent had the mental capacity to make a will, the proponent must establish that: (1) the decedent understood the nature and consequences of executing a will, (2) the decedent knew the nature and extent of his property, and (3) the decedent knew the natural objects of his bounty. (Matter of Kumstar, 66 NY2d 691 [1985]; Matter of McCloskey, 307 AD2d 737 [4th Dept 2003], rearg denied 309 AD2d 1313 [2003], Iv denied 100 NY2d 516 [2003]). The burden of proving that the decedent possessed the requisite testamentary capacity is on the proponent. (Matter of Kumstar, supra; Matter of Williams, 13 AD3d 954 [3d Dept 2004]).The decedent was the District Attorney of Kings County when he was diagnosed with colorectal cancer around April 13, 2016. The petitioners allege that by early August 2016, the cancer had metastasized to the decedent’s brain. The decedent was no longer able to go to the office. During that summer, he received chemotherapy, pain medication and anti-depressants as his mental condition deteriorated.The affidavit of Clara Thompson states that she stayed with the decedent while the decedent’s spouse and children vacationed on Martha’s Vineyard in August. During those weeks, the decedent was often incoherent, making nonsensical sounds.During September, 2016, the decedent was admitted to Memorial Sloan Kettering Hospital (“MSKH”) for treatment when his condition deteriorated, and released when his condition stabilized. He was discharged from MSKH on September 21, 2016. On September 24, 2016, Lu-Shawn sent Clara an e-mail that her husband seemed a little less confused.Clara’s observations are supported by the affidavit of Catherine Gaskin, who stated that her brother’s mental conditioned worsened after brain surgery in July 2016. She states that Lu-Shawn e-mailed her on August 1, 2016 hoping that her husband gets better mentally. When she visited her brother in Teaneck, New Jersey, in August 2016, he would randomly babble and at times was incoherent.Catherine Gaskin states that Lu-Shawn called her on September 24, 2016, stating that her husband did not know who he was and his condition deteriorated as the day progressed. As a result, she took her husband to MSKH. He was admitted after midnight, September 25, 2016, and remained in MSKH until he died. Ms. Gaskin states that her brother’s mental condition became worse after he was admitted to MSKH.Even if this evidence is insufficient to create an issue of testamentary capacity (see Matter of Kumstar, 66 NY2d 691 [1985]; Children’s Aid Society of New York v. Loveridge, 70 NY 387 [187]; Matter of Swain, 125 AD2d 574 [2d Dept 1986], the decedent’s weakened condition is one factor considered by the courts in determining whether the execution of a will was the result of undue influence (see Matter of O’Brien, 182 AD3d 1135 [4th Dept 1990]).Undue influence is seldom practiced openly but may be shown by persistent and subtle suggestions imposed upon a weaker mind and furthered by the exploitation of a relationship of trust and confidence (see Matter of Burke, 82 AD2d 260 [2d Dept 1981]). 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 (see generally 2 PJI 7:55).The petitioners allege that the decedent was close to his family, especially his mother, Clara Thompson (“Clara”) and his sisters Catherine Gaskins (“Catherine”) and other family members. Catherine’s children, Asia and Alia Gaskins, babysat for the decedent’s children on a regular basis since their birth. When Lu-Shawn and the children took their planned vacation to Martha’s Vineyard, Clara came up from South Carolina to stay with the decedent in property he owned in Teaneck, New Jersey. When Lu-Shawn and the children came back from vacation, the decedent returned to Bro0klyn and Clara returned to South Carolina. Clara came up from South Carolina during the decedent’s final days. Lu-Shawn communicated with her and Catherine Gaskin about her husband’s deteriorating condition.The petitioners allege that decedent became disillusioned in his marriage, upset with his wife’s spending habits and, in August 2016, he related to his sister Catherine Gaskin that he was contemplating divorce.Then there are the circumstances surrounding the preparation and execution of the 2016 Will. In May 2016, Lu-Shawn met Lori Douglass, Esq. (“Douglass”), a trusts and estates attorney at Moses & Singer, at a social event at the Apollo Theatre. Lu-Shawn told Douglass that her husband asked her to contact Douglass about reviewing his estate plan. Douglass agreed. Shortly thereafter, Lu-Shawn delivered a folder containing documents relating to their wills and financial affairs to Douglass.Among the documents in the folder was a copy of the 2008 Will. Under this will, the decedent left general bequests totaling $900,000 to his mother, Clara, his father, his sisters, and other family members. He left his residence and personal property to his spouse and the balance to a credit shelter trust for his spouse and issue and a marital trust for the benefit of Lu-Shawn.A few days later, Douglass spoke to the couple by phone. They discussed the decedent’s estate plan. As part of her normal practice, Douglass advised the decedent to request his prior will from his former counsel and physically revoke 2008 Will. Neither informed Douglass of the decedent’s medical diagnosis. Nor did they take any steps to implement Douglass’ advice.Although the deposition transcripts are not a model of clarity, it appears that Lu-Shawn called Douglass while her husband was in the hospital to retain her to do new wills for herself and her husband. Douglass testified that this occurred during a conversation on September 17, 2016, Lu-Shawn also first told her that the decedent had cancer. Douglass believed that the decedent had an immediate need for a new will. Douglass repeated her advice that the prior wills should be destroyed.However, around September 16, 2016, the decedent was admitted to the hospital for treatment. The record shows that on that day, Lu-Shawn sent an e-mail on to Jeffrey Lowin, Esq. (“Lowin”), of the law firm Morris & Cohen, who drafted the 2008 Will (and her 2008 will) requesting that he send her the original 2008 Will (as well as her 2008 will). He sent the wills to Lu-Shawn by Federal Express on September 19, 2016. The wills arrived on September 21, 2016. The decedent was released from the hospital on September 22 and both wills were destroyed that day. By midnight, September 25, 2016, the decedent was readmitted to the Hospital.Douglass testified that she had further conversations with the decedent and Lu-Shawn after September 20, 2016. Douglass testified that in one of these conversations, she asked the decedent if he had destroyed the 2008 Will and he said that he had. She did not speak to him again until September 27, 2016.The execution of the 2016 Will was planned for September 26, 2016. On that day, Lu-Shawn called Douglass to say her husband said not to come that day. However, the affidavit of his long time friend and Deputy Chief of Staff of the Kings County District Attorney’s office, Wayne Williams, Esq., stated that he visited decedent on that day and stayed for approximately three hours in the afternoon. During that time, decedent told him he was feeling better.Douglass and a paralegal came to the hospital the next day, and the 2016 Will was executed by decedent. Douglass and the paralegal served as witnesses and executed a self-proving affidavit.The 2016 Will eliminated the bequests to family members, left his estate to two trusts, a marital trust for the benefit of Lu-Shawn, and a family trust for the benefit of Lu-Shawn and the children. Lu-Shawn was named executor and she and the decedent’s sister, Catherine Gaskin named as co-trustees of the testamentary trusts. There is no evidence the decedent received a copy of the 2016 Will prior to its execution.The decedent died eleven days later, on October 8, 2016. On October 27, 2016, Lu-Shawn proceeded to offer the 2016 Will for probate. The guardian ad litem appointed to protect the interests of the minor children rendered his report on November 2, 2016, finding no basis to object to the probate of the 2016 Will. The 2016 Will was admitted to probate, and letters testamentary issued to Lu-Shawn.Lu-Shawn, Douglass and Lowin refused the requests of Clara and her attorneys to furnish a copy of the 2008 Will, claiming attorney-client privilege. Clara was compelled to initiate a proceeding to compel the production of the 2008 Will. Lu-Shawn, Douglass and Lowin were ordered to appear and be examined about the existence of the 2008 Will and to produce a copy of the 2008 Will. On January 8, 2017, the parties entered into a so-ordered stipulation dated January 18, 2017 whereby they agreed to appear and be deposed and produce a copy of the 2008 Will.At their depositions, they refused to show the copy to Clara’s attorneys, arguing that they were only obligated to bring a copy of the 2008 Will at the deposition, not disclose it to the petitioners, and again asserting attorney-client privilege. The petitioners moved to hold Lu-Shawn, Douglass and Lowin in contempt. It was only after a conference with the court (Johnson S.) on the contempt motion that Lu-Shawn, Douglass and Lowin agreed to furnish Clara’s attorneys with a copy of the 2008 and file a copy with the court.Finally, there is the 2016 Will itself. It is thirty-nine pages long. It differs from the 2008 Will in a number of significant ways, all benefitting Lu-Shawn. The 2008 Will left general bequests totaling $900,000 to the decedent’s mother Clara, his father William Thompson, his sister Catherine, Catherine’s children, his brother and his uncle. These bequests were eliminated in the 2016 Will.Under the 2008 Will, after distribution of general bequests and the decedent’s home and tangible personal property to Lu-Shawn, the decedent left the maximum unified credit allowable to a credit shelter trust and the residue to a marital trust. Under the 2016 Will, after distribution of the tangible personal property to Lu-Shawn, he left the optimum marital deduction to a marital and the residue to a family trust.Comparing the credit shelter/family trusts, the income from the credit shelter trust and family trust was distributed to Lu-Shawn. Under the 2008 Will, the trustees were authorized to invade principal for Lu-Shawn and the children at the discretion of the independent trustee for their health, maintenance and comfort, for medical or other emergencies, or for any other good reason, considering all other resources available to said spouse or child. Upon Lu-Shawn’s death, the remaining trust property was distributed into sub-trusts for the benefit of the decedent’s then living children or their issue.In the 2016 Will, the trustees of the family trust had the discretion to distribute income and principal to Lu-Shawn and the children for their health, education, maintenance and support as well as the absolute discretion to distribute principal or income for any reason. Upon her death, the 2016 Will gave Lu-Shawn the power to appoint the property of the family trust to anyone other than herself, her creditors or her estate. If she failed to exercise the power of appointment, the balance of the trust was left in sub-trusts for the decedent’s issue.The two wills’ provisions for the marital trust shows the same pattern. In the 2008 Will, Lu-Shawn received the income of the marital trust. In addition, the independent trustee was given the discretion to distribute principal to her for her health, maintenance and comfort, for medical or other emergencies, or for any other good reason, considering all other resources available to her. In the 2016 Will, the power to distribute principal to Lu-Shawn was expanded by giving the trustees the power to distribute principal for any purpose.In the 2008 Will, Lu-Shawn was given a limited power to appoint the balance of the marital trust to the decedent’s then living issue. If she failed to exercise her limited power of appointment, the remainder passed to sub-trusts for the decedent’s then living issue. The 2016 Will expanded Lu-Shawn’s power of appointment to include anyone other than herself, her creditors or her estate.The 2016 Will added Lu-Shawn as the trust protector, with authority to remove and replace a trustee for any reason or for no reason at all. The 2016 Will also attempted to eliminate the need for the appointment of a guardian ad litem for his minor children in the probate proceeding.After the petitioners brought this proceeding to vacate the probate decree, Lu-Shawn executed a renunciation of any interest given to her under the 2016 Will.The determination of a reasonable probability of success through competent evidence is a discretionary one for the court (see Matter of Loverme, 27 AD3d 747, 748 [2d Dept 2006]; Matter of Kelsall, 79 AD3d 1234 [3d Dept 2010]). Standing alone, any one of above facts might be insufficient to prove lack of capacity or undue influence. However, the combination of these factors casts doubt on the validity of the probated will. The court’s “paramount concern is to admit only valid wills to probate” (Matter of Orlowski, 281 AD2d 422, 423 [2nd Dept 2001]; Matter of Kryk, 15 Misc 3d 1133(A) [Sur Ct, Monroe County 2007]). The court must be satisfied as to the genuineness of the will before admitting it to probate (SCPA 1408).Based on the above, Lu-Shawn’s motion to dismiss the petition for failure to state a cause of action is denied. Lu-Shawn’s motion for summary judgment dismissing the petition is denied as premature. The petitioners cannot engage in discovery to bolster their case unless the probate decree is set aside (see Matter of Kelsall, 79 AD3d 1234 [3d Dept 2010]). Accordingly, dismissal of Lu-Shawn’s motion for summary is denied without prejudice to renewal upon completion of discovery.Based on the above, the court (1) vacates its decree, dated November 2, 2008 (SCPA §208); (2) vacates the letters testamentary issued to Lu-Shawn Thompson; and (3) sets the matter down for conference on September 13, 2018 in the courtroom at 11:30 a.m.This constitutes the decision and order of the Court.
