The following papers were read:Notice of Motion-Affidavit of Mailing-Affirmation 1-10Exhibits A-GAffidavit in Opposition-Verification 11-13Affidavit of Service Reply AffirmationDECISION AND DECREE In this contested probate proceeding, petitioner Martha Walker, named executrix in the propounded instrument entitled the “Last Will and Testament of Dorothy Paulin” moves for an order, pursuant to CPLR 3212, dismissing the objections to probate of Cerious D. McCray, grandson of the decedent, and admitting the instrument to probate.By way of background, the matter before the Court concerns the probate of decedent’s last will, dated December 27, 2006. The objections, filed by the decedent’s grandson Cerious McCray sound in undue influence. The objectant also submits to this Court what amounts to a construction issue. Specifically, objectant states:“it is respectfully requested that this Court issue an order:(a) granting the Objectant summary judgment construing the Fourth Article of the Last Will and Testament of DOROTHY JEAN PAULIN, to mean that the Residuary Estate is an outright bequest in fee simple absolute to all of her children (living or predeceased) and that the use of the term ‘per stirpes’ (underlined) within said residuary clause — without any survival language is further proof that the issue of decedent’s predeceased son Larry N. Paulin (or Larry Paulin) means that ‘[they] take by the right of their ancestor’.”SCPA §1420(1) states that a person interested in obtaining a construction of a will may petition in the court in which the will was probated. If a party asks for construction of a will in a pending probate proceeding, the court may determine the construction issue upon the entry of a decree admitting the will to probate (see SCPA §1420[3]). No provision is made for construction of provisions of a will prior to probate (see Matter of Martin, 17 AD3d 598 [2nd Dept 2005]). Logically, probate precedes construction, for otherwise there is no will to construe (see Matter of Davis, 182 NY 468 [1905]).Accordingly, the Court must first address the petitioner’s motion for summary judgment dismissing the objection to the propounded instrument. In the event dismissal of the objection is warranted and the propounded instrument is deemed the last will and testament of Dorothy Jean Paulin, the Court may then examine the construction argument raised by the objectant.On a motion for summary judgment, the test to be applied is whether triable issues of fact exist or whether on the proof submitted judgment can be granted to a party as a matter of law (see Andre v. Pomeroy, 35 NY2d 361 [1974]). The movant or movants must set forth a prima facie showing of entitlement to judgment as matter of law, tendering sufficient evidence to demonstrate the absence of any material issue of fact (see Alvarez v. Prospect Hospital, 68 NY2d 320 [1986]). Once the movant or movants set forth a prima facie case, the burden of going forward shifts to the opponent of the motion to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact (see Zuckerman v. City of New York, 49 NY2d 557 [1980]).Undue InfluenceObjectant states that “decedent also loved Cerious and Raymel and there is no explanation as why she would not treat them in the same manner that she purportedly treated Rodney and Patricia’s children thus giving rise to a strong inference of undue influence on the part of PATRICIA SMITH and all those jointly engaged or acting in concert with her.”Objectant continues that the estate’s value, presumably over One Million Dollars ($1,000,000.00), establishes a financial motive for exercise of undue influence.Generally, the burden of proving undue influence rests with the party asserting its existence. To meet this burden, there must be proof of motive, opportunity and the actual exercise of undue influence tantamount to a moral coercion which restrained independent action and destroyed free will (see Matter of Walther, 6 NY2d 49 [1959]). However, if a confidential relationship exists, the burden is shifted to the beneficiary of the transaction to prove the transaction fair and free from undue influence (see Hearst v. Hearst, 50 AD3d 959 [2nd Dept 2008]). In order to demonstrate the existence of a confidential relationship, there must be evidence of circumstances that demonstrate inequality or a controlling; influence (see Matter of Albert, 137 AD3d 1266 [2nd Dept 2016] leave to appeal denied by 27 NY3d 910).Here, the allegations of undue influence are unsupported by evidence, circumstantial or otherwise, to demonstrate that the will was a product of undue influence (see Matter of Dubin, 54 AD3d 945 [2nd Dept 2008]). Even assuming arguendo that motive and opportunity were established, objectant offers no direct evidence that the proponent did anything to actually influence the decedent’s distribution of her assets (see In re Estate of Alibrandi, 104 AD3d 1175 [4th Dept 2013]).Undue influence to void a will must be a present constraint, operating upon the mind of the testator at the time of testamentary act (see In re Wiilof Ryan, 34 AD3d 212 [1st Dept 2006] leave to appeal denied by 8 NY3d 804). Here, the submissions of the objectant simply fail to evidence an actual exercise of undue influence tantamount to a moral coercion which restrained independent action and destroyed free will (see Matter of Walther, 6 NY2d 49 [1959]).Construction Proceeding/ArgumentThe purpose of a will construction proceeding is to ascertain and give effect to the testator’s intent (see In re Levine, 136 AD3d 920 [2nd Dept 2016]). All rules of interpretation are subordinated to the requirement that the actual purpose of the testator be sought and effectuated as far as is consonant with principles of law and public policy (id). The testator’s intent must be gleaned not from a single word or phrase but from a sympathetic reading of the will as an entirety and in view of all the facts and circumstances under which the provisions of the will were framed (id.).The crux of the objectant’s contruction issue revolves around Article Fourth of the will which reads:“All the rest, residue, and remainder of the property, real and personal, whatsoever situate of which I may die seized or possessed or to which I may be entitled at the time of my death after the payment of any taxes caused by reason of my death, herein referred to as my Residuary Estate, I give, devise and bequeath to my children RODNEY PAULIN (presently residing at Jamaica Plains, Massachusetts) and PATRICIA SMITH in equal shares per stirpes.”Objectant interprets this provision of the will, specifically the addition of the phrase per stirpes, to provide for a substantive gift to the remainderman of the heirs that predeceased the decedent. In this matter, the testatrix has given the entire residue of her estate to two named legatees; therefore, the words per stirpes have significance in this will only if the parties named Rodney and Patricia should fail to survive the testatrix (see In re Burggraf’s Estate, 12 Misc2d 152 [Sur Ct, New York County 1958]). Thus, the words per stirpes in this will provide for the descendants of the named legatees to take by representation, if the one first named should fail to survive the testatrix (see generally Matter of Harms, 171 AD2d 868 [2nd Dept 1991]).Accordingly, as the language of the will is clear on its face and unambiguous, the construction as suggested by the objectant cannot be accepted (see In re Lynch, 113 AD3d 616 [2nd Dept 2014]).Based upon the foregoing, the petitioner’s motion is granted to the extent that the objections are hereby dismissed in their entirety, inclusive of any reference to the construction of the will. The request for costs and disbursements is denied. The genuineness of the will, dated December 27, 2006, and the validity of its execution having been shown to the satisfaction of the Court, it is admitted to probate pursuant to SCPA §1408 and EPTL §3-2.1, valid to pass real and personal property. The will and this decree shall be recorded and Letters Testamentary shall issue to Martha Walker (named in the will as Martha Carrington) upon properly qualifying for such office.The foregoing constitutes the decision and decree of the Court.Dated: October 30, 2018Poughkeepsie, New York
