Cases released on: January 2, 2019
Surrogate López TorresWILL OF MIRIAM A. RYAN, Deceased (13-2195/B) — In this contested probate proceeding, Desiree Ryan (the proponent) filed a petition on October 28, 2014 seeking probate of a written instrument dated May 14, 2005, which purports to be the last will and testament of Mildred A. Ryan (the decedent). Verified objections to probate were filed on April 23, 2015, by Alfred French, Jr. (the objectant) in which he asserts that the propounded instrument was not duly executed, that the decedent lacked testamentary capacity, and that the propounded instrument is the product of fraud, duress and undue influence exercised by the proponent. The proponent now moves for summary judgment to dismiss the objections interposed by the objectant and to admit the propounded instrument to probate. The objectant has filed opposition and requests denial of summary judgment.Background / Factual AllegationsThe decedent died on July 29, 2005 at age 84. She had a pre-deceased spouse, George Ryan, and four sons, Alfred French (now post-deceased), John Ryan (pre-deceased), Paul Ryan, and Theodore Ryan. The proponent is the decedent’s granddaughter (and daughter of Theodore), and the objectant is the decedent’s grandson (and son of Alfred). The decedent’s estate was comprised primarily of her two-family home located at 515 Jerome St., Brooklyn, NY and an adjoining vacant lot.1 By all accounts, the decedent was the matriarch of the family, the “glue that kept the family together,” the mother, aunt and grandmother who nurtured, cooked for, cared for, and provided shelter for various family members throughout the years, including the proponent and the objectant, as well as her profoundly disabled son John until his death just months prior to her own. The proponent was raised by and resided with the decedent since the age of 12, and she and her family still reside at the decedent’s home. The objectant contends that he was also raised primarily by the decedent and resided at her home for much of his life, while the proponent claims that growing up, the objectant “bounced around” from the decedent’s, his parents’ homes, and that as an adult, he used the decedent’s home as a place to “crash” when needed.After her husband’s death, the decedent executed a purported last will and testament on September 7, 1989 (the 1989 instrument). The objectant filed a petition on June 3, 2013 for the probate of the 1989 instrument. Thereafter, the petitioner filed a written instrument dated May 14, 2005 (the propounded instrument) with the court on July 30, 2014; filed objections to the objectant’s petition on September 16, 2014; and filed her own petition to probate the propounded instrument on October 28, 2014. The proponent’s affirmation of delay, signed by her counsel and not the proponent, states that the proponent inadvertently believed that it was unnecessary to file a probate petition.The 1989 instrument was drafted by an attorney, Kenneth Allen Habel, Esq., and its execution by the decedent was apparently witnessed by two individuals, Lloyd Mitchell, a cousin of the decedent, and Linda McMurren who worked at attorney Habel’s office. The 1989 instrument contains self-executing affidavits from the witnesses and its execution was supervised by attorney Habel at his office. The 1989 instrument bequeaths decedent’s home and lot located at 515 Jerome Street, Brooklyn, NY to the proponent and the objectant in equal shares; $2,000.00 each to seven grandchildren, including the objectant; and the residuary to the proponent. The instrument nominates Lloyd Mitchell and the proponent to serve as co-executors.The propounded instrument appears to not have been drafted by an attorney and is a two-page typed document that states at the heading “LAST WILL AND TESTAMENT OF MIRIAM A. RYAN.” The instrument provides that the decedent “being of sound mind and body, do hereby publish and declare the following to be my Last Will and Testament.” The propounded instrument further states, in pertinent part, as follows:“It is my expressed wish to leave all of my assets and estate including my primary residence at 515 Jerome Street, Brooklyn, New York, and its adjourning (sic) properties also located on Jerome Street to my granddaughter, Desiree C. Ryan….I raised Ms. Desiree C. Ryan from a baby to adulthood and she has remained with me throughout. I have depended on her and she has always been there for me. She made a promise to me on the day her grandfather died in 1989 and she has remained true to that promise (to never leave me). So for this, I wish to will my entire estate to her. For reasons known only to myself, it is my expressed (sic) wish to leave my [sons Alfred A. French, Paul Ryan, and Theodore A. Ryan] the sum of $0 dollars.”The propounded instrument bears a signature purporting to be that of the decedent and notarized by Yvette Hassang (Hassang), as well as signatures of Deborah Griffiths (Griffiths) and Ingrid Soto (Soto), below the statement “Subscribed and sealed by the Testatrix in the presence of us and each of us, and at the same time published, declared and acknowledged by her to us to be her Last Will and Testament, and thereupon, we, at the request of said Testatrix, in her presence and in the presence of each other have hereunto subscribed our names as witnesses.”Griffiths, Soto, and Hassang were deposed on June 8, 2017 and August 9, 2017. Griffiths testified that she and the proponent are very close friends, having met at work in 2001, and that she is also the godmother of the proponent’s son. Griffiths further testified that through her friendship with the proponent, she frequently saw the decedent at family functions and other events. Griffiths also testified that one Saturday morning, purportedly the date of the execution of the propounded instrument, the decedent called her and asked her to come over to the decedent’s home without explaining the need for the visit. When Griffiths arrived, Soto was already there. After some small talk, the decedent took out a document and said, “[T]his is my will. I need you guys to witness it.” Griffiths then read the document and signed it.Soto testified that she was also friends and co-workers with the proponent since 2002 and became close as they would carpool to work everyday. Soto also became friendly with the decedent as she would often see the decedent when she picked up the proponent for their commute to work. Soto also testified that the decedent called her and asked her to visit on a weekend day, without explaining the reason for the visit. When Soto arrived at decedent’s home, there was some small talk and decedent stated “nobody is here forever” and “you have to secure yourself’ or words to that effect. The decedent then took out a document, stated that it was her will, and asked Soto and Griffiths to sign it. Soto and Griffiths then took turns reading the document and signing it.Hassang testified that she is Soto’s sister and that she received a call from Soto who stated that one of her friends needed a notary public. Hassang then proceeded to the decedent’s home where she saw an elderly woman, Soto, and another young woman. Hassang then requested identification from the elderly woman, notarized her signature, saw the two witnesses sign the document, and then left.The proponent was also deposed on July 31, 2017 and testified that she was present at the attorney’s office when the 1989 instrument was executed by the decedent. As for the propounded instrument, the proponent did not know who drafted it and did not even know of its existence until after the decedent’s death, when the proponent found it in a billfold inside a briefcase in a small closet at the decedent’s home. The proponent denies that she was at home when the propounded instrument was executed and denies that Griffiths or Soto ever mentioned taking part in the execution of the propounded instrument. The proponent further denies that she exerted any undue influence on the decedent.Griffiths, Soto, and the proponent also submit affidavits in support asserting that the decedent was in full possession of her mental faculties on the date of the execution of the propounded instrument. Griffiths and Soto further state that the decedent stated that the propounded instrument was her will at the time of execution. Further, while they did not testify as such at their depositions, Griffiths and Soto state in their affidavits that they watched the decedent sign the will and then they both signed as witnesses.The objectant submits an affidavit in opposition to the proponent’s motion. He states therein that the decedent could not have signed the propounded instrument since she suffered a stroke in 2003 and was paralyzed on the right side of her body and that she was severely weak and needed assistance in all aspects of daily living. The objectant further submits that the decedent did not own a computer and could not have typed the document herself. At his deposition, the objectant testified that after the stroke, the decedent retained the ability to speak clearly and was appropriately responsive during conversations.Lloyd Mitchell (Mitchell) also submits an affidavit supportive of the objectant’s opposition to the proponent’s motion. Mitchell states that he is the decedent’s much younger first cousin; that the decedent provided him care and shelter for a time when he was young; and that they remained close until her death. He further states that following her husband’s death, the decedent expressed that she wished to have an attorney draft her will. On September 7, 1989, Mitchell accompanied the decedent to attorney Habel’s office to witness the execution of the 1989 instrument. The decedent also came to rely heavily on Mitchell for assistance with financial matters. Mitchell further states that the decedent did not make any serious decisions without first consulting him. Mitchell also submits that about a month before her death, the decedent informed him that she wished to “change the status of [her] property” due to the proponent’s alleged lack of care for her, and that she wished to get in touch with attorney Habel.Summary Judgment Standard of ReviewSummary judgment is a drastic remedy that may be granted only where there is an absence of any material issues of fact requiring a trial. See CPLR 3212(b); Vega v. Restani Const. Corp., 18 N.Y.3d 499, 503 (2012). The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law by tendering evidence to demonstrate the absence of any material issues of fact. Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324 (1986). Failure to make this initial showing requires a denial of the motion, “regardless of the sufficiency of the opposing papers.” Winegrad v. New York Univ. Med. Center, 64 N.Y.2d 851, 853 (1985). In reviewing the sufficiency of the proponent’s submissions, the facts must be carefully viewed “in the light most favorable to the non-moving party.” Ortiz v. Varsity Holdings, LLC, 18 N.Y.3d 335, 339 (2011).Once a prima facie showing is made, the burden of going forward shifts to the party opposing the motion. The opponent must produce evidentiary proof sufficient to establish the existence of material issues of fact requiring a trial of the action. Chance v. Felder, 33 A.D.3d 645 (2d Dep’t 2006). Upon consideration of a motion for summary judgment, a court is required to accept the evidence tendered by the opponent as true, and “must deny the motion if there is even arguably any doubt as to the existence of a triable issue.” Barker v. Briarcliff School Dist, 205 A.D.2d 652, 653 (2d Dep’t 1994). The court’s function in deciding a summary judgment motion is issue finding rather than issue determination. Sillman v. Twentieth Century-Fox Film Corp., 3 N.Y.2d 395, 404 (1957). The remedy may not be granted “unless it appears that no material triable issues of fact exist.” Phillips v. Kantor & Co., 31 N.Y.2d 307 (1972).DiscussionLack of Due ExecutionThe proponent of a will bears the burden of proving testamentary capacity and that the propounded instrument was duly executed in accordance with the statutory requirements under EPTL 3-2.1. Matter of Rottkamp, 95 A.D.3d 1338, 1339 (2d Dep’t 2012); Matter of Collins, 60 N.Y.2d 466, 468 (1983). The elements of due execution include (i) the testator’s signature at the end of the document; (ii) the knowledge of the testator’s signature by the attesting witnesses, either by her acknowledgment thereof or by her signature in their presence; (iii) a declaration by the testator that the document being executed is her will; and (iv) the signatures of at least two attesting witnesses, who must sign at the request of the testator. EPTL 3-2.1. Since the propounded instrument does not appear to have been attorney-drafted nor its execution attorney-supervised, there is no “presumption of regularity that the will was properly executed in all respects.” Matter of Tuccio, 38 A.D.3d 791, 791 (2d Dep’t 2007). The propounded instrument does contain an attestation clause which “raises a presumption of a will’s validity;” however “it is nonetheless incumbent upon the Surrogate’s Court to examine all of the circumstances surrounding the execution of the document in order to ascertain its validity.”2 Matter of Costello, 136 A.D.3d 1028, 1028 (2d Dep’t 2016) (internal quotations and citations omitted).In that regard, the affidavits of Griffiths and Soto submitted in support of the proponent’s motion, would satisfy all of the elements of due execution. However, their testimonies were not as neat, complete, and convenient as their written affidavits. Neither Griffiths nor Soto, in detailing the execution ceremony, testified that the decedent signed the propounded instrument in their presence. The proponent argues that the reason they did not testify as such was that they were not specifically asked the question whether the decedent signed the propounded instrument or acknowledged her signature in their presence. However, neither party at the deposition asked the question. Further, the witnesses were asked to detail every step of the execution ceremony and to detail everything that happened after they signed the propounded instrument. Neither testified that they saw the decedent sign the document before they signed it or that the decedent declared to them that she had signed the document.3 Accordingly, a triable issue of fact is raised as to whether the decedent affixed her signature to the propounded instrument in the presence of the attesting witnesses or acknowledged her signature to each of the witnesses. EPTL 3-2.1(a)(2).There are numerous other questions which remain unanswered by the record before the court. Firstly, there is no evidence as to who drafted the propounded instrument, whether the decedent herself or by someone assisting the decedent. By all accounts, the decedent was suffering from significant physical frailty at the time the propounded instrument was executed. There is a question as to why no one, other than the witnesses and the notary public, was aware that the document existed. Even the proponent denies that she was aware, until she found it after the decedent died. A question also remains why the decedent retained an attorney to draft the 1989 instrument and brought the proponent with her to the execution ceremony, but did not retain an attorney to draft the propounded instrument. Moreover, Lloyd Mitchell, who was a nominated executor and also a witness to the 1989 instrument, states that the decedent’s failure to consult him with respect to the propounded instrument would have been out of character for the decedent.Further, the witnesses to the propounded instrument are admittedly close friends of the proponent, the sole beneficiary under the propounded instrument. Even the notary public, a sister of one of the witnesses has a connection to the proponent. Indeed, if the proponent is to be believed, the decedent and the two witnesses who are the proponent’s very close friends, kept the existence of the propounded instrument secret from the proponent, even though the propounded instrument goes to her sole benefit. Based upon the record before the court, the proponent seems to have found the propounded instrument by happenstance and never thought to offer it for probate until 16 months after the objectant filed the petition to probate the 1989 instrument. A question remains as to why, when she was fully aware of the existence of the 1989 instrument that left her only a 50 percent share of the real property, the proponent did not think to probate the propounded instrument that leaves the entirety of the estate to her until years after the decedent’s death and only after the objectant filed a petition to probate the 1989 instrument.“Before admitting a will to probate the court must inquire particularly into all the facts and must be satisfied with the genuineness of the will and the validity of its execution.” SCPA 1408(1). Based upon these circumstances, the court is constrained from holding that it is satisfied with the genuineness and validity of the propounded instrument and its execution, sufficient to grant summary judgment and deny the objectant a trial. While the court is not ruling on the merits of the objectant’s allegation that the propounded instrument is a wholly fabricated document, viewing the facts in the light most favorable to the objectant and accepting the objectant’s proffered evidence as true, the drastic remedy of summary judgment is unwarranted under the circumstances. Zuckerman v. City of New York, 49 N.Y.2d 557 (1980).Testamentary CapacityThe proponent of a will bears the initial burden of proving testamentary capacity, i.e., “that the decedent understood the nature and consequences of making the will, the nature and extent of his or her property, and the natural objects of his or her bounty.” Matter of Sabatelli, 161 A.D.3d 872, 874 (2d Dep’t 2018). Here, the witnesses’ testimonies satisfy the proponent’s initial burden of establishing testamentary capacity. In opposition, the objectant does not seriously argue that the decedent had diminished mental capacity at or around the time the propounded instrument was allegedly executed. Rather, the objectant alleges that the decedent was in such a frail physical state that she could not have executed the instrument. However, the courts have long recognized that advanced age, physical weakness and even senile dementia “are not necessarily inconsistent with testamentary capacity.” In re Hedges, 100 A.D.2d 586, 588 (2d Dep’t 1984).Further, the objectant’s own testimony revealed no merit to the assertion that the decedent was suffering from any mental incapacity at any point. While the objectant submitted copies of hospital records and a list of medications that the decedent was taking, there is nothing in the record that indicates that the decedent had any mental capacity issues at any point in time up to her death. Accordingly, the objectant has failed to rebut the proponent’s prima facie showing of testamentary capacity, and therefore, the objection on the ground of testamentary capacity is dismissed.Undue InfluenceThe burden of proving undue influence rests upon the objectant. Matter of Connelly, 193 A.D.2d 602 (2d Dep’t 1993). To sustain that burden, the objectant must demonstrate 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 [decedent] to do that which was against [her] free will and desire, but which [she] was unable to refuse or too weak to resist.” Matter of Walther, 6 N.Y.2d 49, 53 (1959), quoting Children’s Aid Socy v. Loeveridge, 70 N.Y. 387, 394 (1877). Moreover, three elements of undue influence must be established as proof thereof: motive, opportunity, and the actual exercise of influence. Estate of Malone, 46 A.D.3d 975 (3d Dep’t 2007). Here, the objectant has failed to submit any evidence that the propounded instrument was the product of the exercise of undue influence on the part of the proponent, other than to generally argue that the proponent resided at the decedent’s home and that the witnesses to the propounded instrument were close friends of the proponent.Indeed, the objectant testified that he and other family members were residing in the decedent’s home at the time the propounded instrument was allegedly executed and at her death a couple of months later. The objectant further states in his affidavit that he and others assisted the decedent in her activities of daily living around that time and that the proponent “had distanced herself and was not involved.” Accordingly, there is no evidence of circumstances that typically accompany accusations of undue influence, such as isolation of the testator from others or the testator’s complete dependence upon and/or fear of the person exercising undue influence. See, e.g., In re Burke, 82 A.D.2d 260, 270-271 (2d Dep’t 1981). Indeed, the objectant himself seems to refute any such circumstances. Accordingly, the objection on the ground of undue influence is dismissed.ConclusionFor the reasons set forth above, the court finds that there are triable issues of material fact with respect to the genuineness and validity of the propounded instrument and its due execution and thus, the branch of proponent’s motion seeking summary judgment on those issues are denied. The branches of proponent’s motion with respect to the objections on the grounds of testamentary capacity and the alleged exercise of undue influence by the proponent are granted, as the objectant has failed to raise any triable issues of material fact.This constitutes the decision and order of the Court.Dated: December 27, 2018Brooklyn, New York
