Matter of Estate of Levick

The following papers were considered in deciding petitioner’s motion for summary judgment and related relief, a motion to quash a subpoena, and a motion to strike portions of opposition papers.Papers Considered NumberedNotice of Motion for Summary Judgment, to Dismiss Objections to Probate, Affidavit, dated August 16, 2017, of Gary B. Freidman, Esq., attaching Exhibits A through PP, and Memorandum of Law, dated August 16, 2017 1, 2, 3Affirmation, dated November 13, 2017, of Jason J. Smith, Esq., AttachingExhibits 1 through 20, and Memorandum of Law, dated November 13, 2017, by Objectant, Mark J. Levick, in Opposition to Motion for Summary Judgment 4, 5Affidavit, dated November 10, 2017, of Michael J. Levick, AttachingExhibits 1 through 15, in Opposition to Motion for Summary Judgment 6Reply Affidavit, dated November 27, 2017, of Gina M. Ciorciari, Esq., in Further Support of Summary Judgment Motion, attachingExhibits A through C 7Reply Memorandum of Law, dated November 27, 2017, in Support of Summary Judgment Motion 8Affidavit, dated July 11, 2018, of Donald Novick, Esq., in Supplemental Opposition to Motion for Summary Judgment, attaching Exhibits A through v. 9Affidavit, dated July 18, 2018, of Gary B. Freidman, Esq., in Opposition to Objectant’s Supplemental Submissions 10Notice of Motion, dated July 6, 2018, to Quash June 15, 2018 Subpoena to Shoeman, Updike et al. Firm, and for a Protective Order, with Affidavit, dated July 6, 2018, of Gary B. Freidman, Esq., attaching Exhibits A through E 1, 2Affidavit, dated July 19, 2018, of Donald Novick, Esq., in Opposition to Motion to Quash, attaching Exhibits A through E 3Reply Affidavit, dated July 23, 2018, of Gary B. Freidman, Esq., in Further Support of Motion to Quash, attaching Exhibit 1 4Notice of Motion, dated July 18, 2018, of Petitioner to Strike Certain Paragraphs of Objectant’s Supplemental Opposition, with Affidavit, dated July 18, 2018, of Gary B. Freidman, Esq., attaching Exhibits 1, 2Affidavit, dated July 23, 2018, of Donald Novick, Esq., in Opposition to Motion to Strike 3DECISION and ORDERAt the call of the calendar on July 25, 2018, the court heard and determined the summary judgment motion of the surviving spouse of decedent Mark Levick, proponent in this proceeding to probate an instrument dated September 25, 2013 as decedent’s will.Two other motions were also before the court that day. Constrained by the decision in AQ Asset Management v. Levine (111 AD3d 245, 260 [1st Dept 2013]), the court denied petitioner’s motion to quash a third-party subpoena for failure of movant to demonstrate standing to make the motion. The court noted, however, that it would not adjourn the return date of petitioner’s motion for summary judgment or extend the deadline for objectant to file opposition papers, that deadline having been extended at least three times before. There had been a lengthy period of discovery — over two years — into the merits of probate by that point, and objectant failed to establish that a further extension to allow this additional discovery was warranted. Instead, the court permitted objectant to argue orally the relevance of the document sought to be subpoenaed, the original penultimate will of decedent’s, dated April 27, 2011.The other motion before the court on July 25, 2018, also by proponent, was to strike certain paragraphs of the supplemental opposition to the summary judgment motion because they included arguments beyond the scope allowed by the court for those supplemental papers. The court denied that motion. The papers had been filed by new counsel for objectant, and petitioner was able to address and respond to those arguments. There was no prejudice in the court’s considering them.In respect of probate, of the objections filed by decedent’s son, two were the subject of petitioner’s motion for summary judgment, namely lack of due execution and undue influence¹ (see Schwartz v. Namanworth, 154 AD3d 540 [1st Dept 2017] [summary judgment standards]; Matter of Tizer, 14 AD3d 351 [1st Dept 2005]).² The court determined that, faced with proponent’s prima facie case for probate of this duly executed, natural will, objectant, in opposing the motion, failed to submit evidence supporting proponent’s actual exercise of undue influence over decedent, nor evidence throwing into question the propriety of the attorney-supervised execution of the propounded instrument.Decedent, a real estate attorney, died at age 73 on September 9, 2014, with a $4 million estate, and survived by proponent and two adult children from a prior marriage. Proponent established that, shortly after decedent was diagnosed with pancreatic cancer, he revised his estate plan with the assistance of a former colleague, who had drafted a will for him in 2002. The propounded instrument omits the 2011 will’s provision for objectant’s children as fifty-percent remainder beneficiaries of its credit shelter trust for the lifetime benefit of his spouse of approximately 18 years.³ Objectant and his brother, decedent’s two children, are both provided with cash bequests under the propounded instrument, which also includes an in terrorem provision. A trust, also for the lifetime benefit of petitioner, is created under the propounded instrument, which gives petitioner the power to appoint the trust remainder to a class limited to her children and their issue. Proponant’s proof further established that decedent executed the propounded will on September 25, 2013 with the requisite formalities, as confirmed by the testimony provided of the attesting witnesses and the attorney drafter, who oversaw execution. Decedent died slightly less than one year later, having, after execution, traveled abroad and managed his own health care, before eventually entering hospice care toward the end of August 2014.Movant’s evidence established a prima facie case for probate on the issue of due execution, including the presumption of regularity that attaches to an attorney-supervised execution. Objectant’s evidence failed to suggest any irregularity in execution requiring a trial (see Matter of Halpern, 76 AD3d 429 [1st Dept 2010]). In such case, summary dismissal of the due execution objection is required (Schwartz, 154 AD3d at 540, citing Matter of Korn, 25 AD3d 379 [1st Dept 2006]).The opposition to the motion focused on undue influence. However, objectant’s reliance on the facts that: proponent attended the initial meeting at their home with the attorney drafter and attended the execution, and may have commented on the will’s provisions; there may be some possible discrepancies between the attorney drafter’s notes and the instrument; and objectant himself was surprised at decedent’s change of testamentary plan from 2011, were insufficient to raise questions of fact material to a determination of whether proponent actually exercised undue influence on decedent (see Matter of Greenwald, 47 AD3d 1036 [3d Dept 2008]). Even if all his evidence were enough to show the elements of motive and opportunity to exercise such overmastering influence over decedent, it provides no basis from which to conclude that influence of that kind was actually exercised, which is also a necessary element of such a claim (Matter of Ryan, 34 AD3d 212, 213 [1st Dept 2006], citing Matter of Walther, 6 NY2d 49, 54 [1959] [if evidence supporting undue influence is circumstantial, it must be of a substantial nature]).⁴Nor did objectant adduce evidence to substantiate his claims that the will was the product of the abuse of a confidential relationship with decedent by proponent or her son. Objectant did not provide evidence that decedent reposed his trust in proponent or her son to do anything for him regarding his affairs (see Matter of Camac, 300 AD2d 11 [1st Dept 2002]). Additionally, he failed to provide evidence to contest that, although relations with decedent were cordial, there was not frequent participation in decedent’s life and care by objectant and his family, whereas decedent may have been closer to proponent’s blood relations. In any event, no evidence was presented indicating that proponent or her son may have abused such trust had it been placed in them (see Matter of Martin, 146 AD3d 619, 620 [1st Dept 2017]), particularly in light of the counterbalancing of any possible inference by the closeness inherent in family relations (Matter of Zirinsky, 43 AD3d 946, 948 [2d Dept 2007]; Matter of Neuman, 14 AD3d 567 [2d Dept 2005] [evidence of "hounding" by testator's spouse insufficient to establish undue influence]).Accordingly, petitioner’s motion for summary judgment was granted, and the objections to probate of the September 25, 2013 will are dismissed.This decision, together with the transcript of the July 25, 2018 proceedings, constitutes the order of the court.Settle probate decree.Dated: November 5, 2018