In this contested probate proceeding, Yolanda Reid, a step- granddaughter of the decedent, who is the nominated executor, a 25percent realty devisee and the sole residuary beneficiary (“movant”) under the propounded instrument dated December 4, 2003, filed a motion for summary judgement seeking, inter alia; (1) to dismiss the objections filed by the decedent’s son (“objectant”), and (2) to probate the propounded instrument. The decedent died on October 21, 2010. His distributees are three (3) children, including a daughter whose whereabouts are unknown. The propounded instrument leaves real property in Jamaica, West Indies to his daughter, Dorothy Robinson, disinherits the objectant herein, and fails to mention the daughter whose whereabouts are unknown, for whom a guardian ad item was appointed. In or about November 17, 2016 a successor guardian was appointed to represent the alleged daughter whose whereabouts are unknown. On May 30, 2017 the parties entered into a “so ordered” stipulation regarding a discovery schedule which included, inter alia, the time frame for which SCPA 1404 examinations were to be completed and when amended objections and summary judgment motions were to be served and filed. The SCPA 1404 examinations were held on August 10, 2017. No amended objections were filed and the movant filed the instant motion for summary judgment on January 26, 2018. On March 2, 2018, counsel for the objectant filed a release and consent to be relieved as attorney of record.The objectant asserts inter alia; lack of due execution, capacity, fraud and undue influence. The objectant alleges that he and his father had a close and loving relationship, however, after the decedent’s wife passed away, the relationship changed due to the fact that her daughter, Audrey Allen, who lived with the decedent, began to control the decedent’s activities. He alleges that the decedent’s stepdaughter, Audrey monitored all of the decedent’s phone calls and attempted to keep him from his father, who was unable to freely communicate with him. The objectant alleges that despite these efforts, he maintained a relationship with the decedent, visiting him twice monthly, however, there was often hostility in the home. He alleges that the decedent’s living conditions deteriorated in 2000, after which the stepdaughter discouraged him from visiting his father, and when he would call or appear at the home, she told him that the decedent was not available and would not be permitted to see him. When the objectant was permitted to see the decedent, he looked unhappy and was unwilling to speak when Audrey was present, but would speak freely when she left the room. In 2003, the objectant alleges that when at the decedent’s home, his father cried and complained to him regarding his living situation and Audrey then told the objectant to leave the home and not to return. He believes that Audrey exerted mental coercion over the decedent to carry out her wishes because he was too weak to resist and was afraid to anger her. He alleges that Audrey kept the decedent isolated from his family, frustrated communication with them and put him in a nursing home without consulting them. The decedent was dependent and under the control of his step-children and he was unduly influenced to disinherit his family in favor of them.In support of the motion for summary judgment, movant’s counsel urges that the decedent’s last will and testament dated December 4, 2013 was duly executed in accordance with EPTL 3-2.1, the decedent had the requisite testamentary capacity at the time of the execution of his will and the decedent’s will was not procured by fraud or undue influence. He argues that the instrument has three (3) attesting witnesses and a validly executed attestation clause which serves as prima facie evidence that the instrument was properly executed (Matter of Collins, 60 N.Y.2d 466, 471 [1983]). He states that all of the witnesses heard the decedent declare the document to be his last will and testament and requested them to witness the signing of the decedent’s will and immediately after witnessing the decedent sign his will the witnesses, in the decedent’s presence, and in the presence of each other, signed their own names under his signature as witnesses, thus satisfying EPTL 3-2.1. Counsel attaches the transcripts of the SCPA 1404 examination of two of the witnesses (see Exhibits F and G) and argues that the examinations of two out of the three witnesses execution raise no questions concerning due execution. Counsel argues that he supervised the execution of the decedent’s will which gives rise to an inference of due execution (see Matter of Finocchio, 270 AD2d 418 [2d Dept 2000]). Counsel avers that the witnesses’ self-proving affidavit stating that the decedent at that time of the execution, was “of sound mind, memory and understanding” is prima facie evidence establishing the decedent’s testamentary capacity at the time the will was executed. The decedent’s will also specifically refers to the only real property owned by the decedent at the time of his death, proving that the decedent was aware of the nature and extent of his property. Further, the decedent’s will was not procured by fraud or undue influence and the objectant has provided no proof to substantiate those allegations. When the will was executed, the only persons in the room were the testator, the supervising attorney and the three witnesses. The decedent read the instrument himself and indicated that he approved of it and had no desire to change its contents. Counsel argues that the objectant will not be able to offer any evidence of any person or persons knowingly making any false statement concerning the drafting of the decedent’s will.The successor guardian ad litem submitted a report indicating he was unable to locate his ward and believes that the objectant presented compelling arguments and significant questions of fact. He argues that taken in the light most favorable to the objectant, the decedent may well have been under duress when he executed the will and may have been unduly influenced by the people that lived in his house and “controlled” his life and argues there is a sufficient basis to deny probate of the will.Summary judgment cannot be granted unless it clearly appears that no material issues of fact exist (see Phillips v. Joseph Kantor & Co., 31 NY2d 307 [1972]; Glick & Dolleck, Inc. v. Tri-Pac Export Corp., 22 NY2d 439 [1968]). The movant must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence in admissible form to demonstrate the absence of any material issue of fact (see Alvarez v. Propect Hosp., 68 NY2d 320 [1986]; Friends of Animals, Inc. V. Associated Fur Mfrs. Inc., 46 NY2d 1065 [1979]). When the movant makes out a prima facie case, the burden shifts to the party opposing 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]). Summary judgment is a drastic remedy which requires that the party opposing the motion be accorded every favorable inference, and issues of credibility may not be determined on the motion but must await the trial (see F. Garofalo Elec. Co. v. New York Univ., 300 AD2d 186 [1st Dept 2002]).Under EPTL 3-2.1 a will must be in writing and executed in the following manner: (1) the testator must sign at the end of the instrument; (2) the signature of the testator may be done in the presence of at least two (2) witnesses, or each may acknowledge his signature separately; (3) the testator must declare to the witnesses that the instrument to which his signature is affixed is his will and he wishes them to act as witnesses to its execution; and, (4) within thirty (30) days, the attesting witnesses must attest to the testator’s signature, as signed or acknowledged before them and at the request of the testator sign their names and affix their residence addresses at the end of the will.A validly executed attestation clause serves as prima facie evidence that the instrument was properly executed (Matter of Collins, 60 N.Y.2d 466, 471 [1983]). Additionally, the supervision of a will’s execution by an attorney gives rise to an inference of due execution (see Matter of Finocchio, 270 AD2d 418 [2d Dept 2000]).The proponent of a will has the burden of proving by a preponderance of the evidence that the decedent possessed sufficient testamentary capacity by demonstrating that the decedent (1) understood the nature and consequences of executing a will; (2) knew the nature and extent of the property being disposed of; and (3) knew the natural objects of their bounty and their relations to them (see Matter of Kumstar, 66 NY2d 69, 692 [1985]). Until the contrary is established, a testator is presumed to be sane and to have sufficient mental capacity to make a valid will (Matter of Beneway, 272 AD 463, 467 [3d Dept 1947]). Further, statements of a subscribing witness serve to establish a prima facie case of testamentary capacity (see Matter of Schlaeger, 74 AD3d 405 [1st Dept 2010]; Matter of Freidman, 26 AD3d 723, 725 [3d Dept 2006]).The burden of proof lies on the objectant to demonstrate, by a preponderance of the evidence, that the testamentary instrument was procured by the exercise of undue influence or fraud (see Matter of Conti, 5 Misc.3d 1026A [Sur Ct, New York County 2004]); Matter of Coniglio, 242 AD2d 901 [4th Dept 1997]). For a will to be invalidated based upon undue influence it must be shown that the influence exercised amounted to a moral coercion, which restrained independent action and destroyed free agency, or which, by importunity which could not be resisted, constrained the testator to do that which was against his free will and desire, but which he was unable to refuse or too weak to resist (Matter of Walther, 6 NY2d 49 [1959]). Undue influence may be proved by circumstantial evidence, but this evidence…must be of a substantial nature. Evidence must be adduced from which inferences of undue influence can be reasonably drawn before a will should be denied probate (id.). Undue influence is frequently established by circumstantial evidence including: the facts and circumstances surrounding the testator and the execution of the will; the condition of the testator’s mind; the testator’s dependency on and subjection to the control of the person accused of exerting the undue influence; the acts and declarations of that person showing the opportunity and disposition of that person to wield the undue influence; and the provisions of the will compared to prior wills as well as whether the will favors the person charged with the influence at the expense of others who, based on the testator’s relationship with them, would be considered more natural objects of the testator’s bounty (see Matter of Elkan, 22 Misc 3d 1125 [A] [Sur Ct, Bronx County 2009]).To establish fraud, the objectant must show that the petitioner or another person made a false statement which altered the testamentary disposition that would have been made in the absence of such a statement (Matter of Paigo, 53 AD3d 836 [3d Dept. 2008]). Without a showing that undue influence or fraud was actually exercised upon the decedent, evidence that opportunity and motive existed to exert such influence will not suffice to raise a triable issue as to whether the will reflected the intent of the testator (Matter of Zirinsky, 43 AD3d 946 [2d Dept 2007]).Here, the movant has provided sufficient evidence to establish that the will was duly executed and the decedent possessed sufficient testamentary capacity when executing the instrument. Further, the objectant fails to provide any evidence to establish the contrary (see Matter of Beneway, 272 AD 463, 467 [3d Dept 1947]). The evidence provided, including testimony from two attesting witnesses, shows that the will was executed by the decedent in the presence of three attesting witnesses and drafting counsel. Additionally, the witnesses testified that the decedent told the witnesses that the document being signed was his last will and testament prior to his execution of the will. As such, these objections are dismissed.The objectant failed to present any evidence to show that the proponent made any false statements which may have altered the testator’s disposition in this matter (see Matter of Paigo, 53 AD3d 836 [3d Dep't. 2008]). However, the court finds questions of fact as to whether the proponent may have exercised undue influenced over the decedent. The objectant indicates that: (1) the proponent moved in with the decedent after the decedent’s spouse died and thereafter decedent’s physical and mental living conditions deteriorated; (2) when he visited the decedent, the decedent was emotional and unhappy, and would not speak when the proponent’s mother, Audrey, was in the room; and (3) Audrey isolated the decedent from his family and (4) Audrey moved the decedent to a nursing home without consulting the decedent’s family (see Matter of Johnson, 6AD3d 859 [3d Dept 2004]).Accordingly, this decision constitutes the order of the court dismissing those objections relating to the execution of the will, the decedent’s mental capacity and any issues relating to fraud. The court finds issues of fact warranting a trial with respect to undue influence.Proceed accordingly.
