DECISION and ORDER In this contested probate proceeding, Arnel Halper (petitioner) petitioned for letters testamentary and to probate a written instrument dated June 9, 2006 (the propounded instrument), which purports to be the last will and testament of Janet Halper (the decedent). Jason Halper (objectant), filed verified objections alleging lack of jurisdiction and testamentary capacity, fraud, and undue influence. Petitioner now moves to dismiss the objections. For the reasons stated below, the motion is granted. BackgroundThe decedent died on November 22, 2010, survived by five adult children, Laura Simon (Laura), Darren Halper (Darren), Hal Halper (Hal), and petitioner and objectant herein. On June 9, 2006, the decedent executed the propounded instrument which was prepared by Andrew Moulinos, Esq. (the attorney-drafter), who also supervised its execution before two attesting witnesses, Ms. Angelica Mendez and Ms. Victoria Theofanis. The propounded instrument provides that i) Laura shall receive decedent’s jewelry, ii) Hal shall receive decedent’s automobiles, iii) Darren and Hal shall receive decedent’s real property located in Brooklyn, iv) petitioner and Laura shall receive decedent’s real property Located in Brightwaters, v) Laura, Darren, Hal and petitioner shall share equally in decedent’s residuary estate and vi) petitioner is nominated as executor. Pursuant to Article Sixth of the propounded instrument, the decedent specifically makes no provision for the objectant.On January 28, 2011, the petitioner filed a petition seeking to admit the propounded instrument to probate, to which the objectant filed verified objections on March 8, 2011. The objectant interposes four objections to probate of the propounded instrument, namely, that the decedent was domiciled in Suffolk County1; that the decedent lacked testamentary capacity at the time of the execution of the propounded instrument, and that such instrument was procured by the petitioner’s and others’ fraud and undue influence.Motion for Summary JudgmentThe Court’s function on a motion for summary judgment is issue-finding, rather than issue-determination. Sillman v. Twentieth Century Fox Film Corp., 3 N.Y.2d 395, 404 (1950) Although the general proposition is that summary judgment is a drastic remedy and is to be granted sparingly (Alvarez v. Prospect Hosp., 68 N.Y.2d 320 [1986]),”[courts] have of late been more liberal in granting such motions where a prima facie case has been established and the objectant has failed to raise any triable issue of fact.” Estate of Zimmerman, N.Y.L.J., May 28, 1998, at 29, col. 4 (Sur. Ct. Westchester County), aff’d, 264 A.D. 2d 850 (2d Dep’t 1999). Accord Phillips v. Kantor & Co., 31 N.Y.2d 307 (1972); Matter of Rudolph, 60 A.D.3d 685 (2d Dep’t 2009).If the moving party meets her burden of establishing a prima facie showing, the party opposing the motion must produce evidence in admissible form sufficient to establish the existence of a material issue of fact that would require a trial. Zuckerman v. City of New York, 49 N.Y.2d 557, 562 (1980). In doing so, the party opposing the motion must lay bare her proof. Towner v. Towner, 225 A.D.2d 614, 615 (2d Dep’t 1996). Further, the opposing party must produce something other than mere conclusions or unsubstantiated allegations to warrant a denial of the summary judgment motion. Id.Testamentary CapacityThe objectant asserts that the decedent lacked testamentary capacity to execute the propounded instrument. In a probate proceeding, the burden of proving testamentary capacity lies with the proponent of the will. Estate of Kumstar, 66 N.Y.2d 691 (1985). Generally, a testator is presumed to be of sound mind and to have sufficient mental capacity to execute a valid will. In re Donohue’s Will, 97 A.D. 205 (2d Dep’t 1904). Specifically, a testator must understand the nature and extent of his property, must know the natural objects of his bounty, and must know the contents of his will. Estate of Kumstar, 66 N.Y.2d at 692. Even where a testator suffered from an illness that may have affected his mental capacity, testamentary capacity exists where the testator was lucid and rational at the time of execution. In re Alexieff’s Will, 94 N.Y.S.2d 32, 34-35 (Sur. Ct. Westchester Co. 1949), affd. 92 N.Y.S.2d 532.Here, the decedent was 71 years old when she executed the propounded instrument on June 9, 2006, over four years prior to her death. The petitioner submits an affidavit from the attorney-drafter who states that at the time of the propounded instrument’s execution, the decedent was “not suffering from any sight, hearing or speech, or from any other impairment which would affect her capacity to make a valid will.” In his affirmation, the attorney-drafter recounts that he was well acquainted with the decedent for many years prior to and after 2006 as he represented her in several legal cases, including litigation against objectant. In support, the attorney-drafter includes exhibits which show that decedent had an Order of Protection against objectant dated June 9, 2008, which was affirmed by the Appellate Division, Second Department, on April 7, 2009, and another temporary Order of Protection against objectant dated November 1, 2010. The attorney-drafter also includes the court transcript of decedent’s allocution regarding a settlement reached on June 17, 2008, in another case between decedent and objectant. According to the attorney-drafter, decedent was of “sound mind, memory and understanding….and in no respect incompetent to make a valid will.” Petitioner also submits an affidavit from attesting witness Victoria Theofanis, the assistant attorney who met with the decedent and attorney-drafter several days prior to the will execution ceremony in order to prepare the will according to decedent’s instructions. Ms. Theofanis states that in her opinion decedent “was of sound mind, memory and understanding…. and in no respect incompetent to make a valid will.” Petitioner argues that because the propounded instrument was executed under the supervision of the attorney-drafter, there is a presumption of regularity, including testamentary capacity. Matter of Leach, 3 A.D.3d 763 (3rd Dep’t 2004); Matter of Nofal, 35 A.D.3d 1132 (3rd Dep’t 2006) (A presumption of testamentary capacity is created when an attorney drafts a will and supervises its execution.) The attorney-drafter and Ms. Theofanis assert that, in all respects, decedent appeared to be of sound and disposing mind, memory and understanding, competent to make a will and not under any restraint, or not suffering from any defects.In opposition, the objectant contends that factual issues exist precluding summary judgment, to wit, that objectant believes his mother; “did not have the mental competence” to understand the provisions of her will. According to objectant, who asserts that he is a “fully trained” medical doctor, decedent “often made illogical decisions and her actions clearly disclosed that she lacked the mental capacity to knowingly execute her Last Will and Testament.” Objectant does not provide dates or specific examples of decedent’s “illogical decisions” or any other evidence of her mental incapacity. Similarly, objectant’s wife, Pamela Halper (Pamela), states that on or about June 9, 2006, at the time the propounded instrument was executed, decedent’s behavior could only be described as “irrational.” However, Pamela does not describe how decedent’s alleged irrationality manifested. Objectant has not submitted any actual evidence that casts into question decedent’s capacity or that decedent was afflicted with a mental defect at the time the propounded instrument was executed. Rather, objectant merely speculates that decedent lacked the mental competence to knowingly execute the propounded instrument in that she made “illogical decisions” and was “irrational,” without further explanation. Petitioner emphasizes that despite having access to numerous medical authorizations of decedent’s treating physicians, “no objective medical findings of any medical issues concerning the decedent were discovered/mentioned in the opposition papers.”The petitioner has submitted evidence affirmatively attesting to the decedent’s competency, including testimony that decedent was a client of the attorney-drafter for years; decedent met with the attorney-drafter and his assistant in order to communicate her wishes prior to the execution ceremony, and; in June 2008, two years after the propounded instrument was executed, decedent’s competence to enter into a stipulation of settlement was evidenced in a transcript of her court allocution. Moreover, no medical records were submitted that contain any indicia of decedent’s mental infirmity at the time she executed the will. The totality of this evidence “shifts the burden” to objectant to produce evidence creating a genuine issue of fact. Matter of Leach, 3 AD3d 763, 765 (3rd Dept 2004)Objectant’s vague and unsupported assertions of decedent’s purportedly illogical and irrational decision-making are inadequate to raise an issue of fact as to decedent’s testamentary capacity. Thus, objectant fails to raise a triable issue of fact with respect to the decedent’s testamentary capacity. Accordingly, the petitioner’s motion to dismiss the objection on the ground of lack of testamentary capacity is granted.Undue InfluenceThe objectant bears the burden of proving undue influence. To that end, the objectant “must establish that the influence exercised amounted to a moral coercion, which restrained independent action and destroyed free agency, or, by importunity which could not be resisted, constrained the testator 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 Zirinsky, 43 A.D.3d 946, 947-948 (2d Dep’t 2007) quoting Children’s Aid Society. v. Loveridge, 70 N.Y. 387, 394 (1877). In other words, objectant has the burden to show that “the influencing party’s actions are so pervasive that the will is actually that of the influencer, not that of the decedent.” (citation omitted) Matter of Malone, 46 A.D.3d 975, 977 (3rd Dep’t 2007).The objectant asserts that there is an issue of fact as to whether the petitioner unduly influenced the decedent. In support of his undue influence objections, objectant provides his own affidavit and three other affidavits from the following affiants: Michael Fulwiler (Michael), William Acevedo (William), and Pamela Halper. In his affidavit, Michael states that he knew petitioner and decedent a “considerable number of years,” without describing how many years or in what context he knew them. Michael alleges he observed and overheard petitioner instruct decedent to disinherit objectant and that he has no doubt that petitioner bullied and coerced decedent into disinheriting objectant. Although Michael’s affidavit is filled with conclusory statements claiming that the propounded instrument “was the result of undue influence and coercion of her son, Arnel Halper” and that petitioner and “likely others, exercised undue influence on Janet Halper,” he provides no details to support his speculation.Similar to Michael’s sworn statement, William’s affidavit states that he was “personally familiar” with decedent and petitioner, without specifying a timeline or context. William alleges that he observed petitioner bully and intimidate decedent, and opines that petitioner was able to control decedent with his “threats and intimidating manner” through “his tone, demeanor and statements.” William summarily alleges that decedent “had neither the strength nor fortitude to avoid the coercion and undue influence” of petitioner. Assuming petitioner instructed decedent to disinherit objectant, there is no indication how such instruction “overcame” decedent’s will as opposed to comported with decedent’s desire to disinherit objectant.Objectant’s affidavit states that “on numerous occasions” he witnessed his sister Laura and petitioner “put extreme pressure on” and make “explicit threats to” decedent to cause her to disinherit objectant. Although objectant states that his siblings told decedent that if she visited objectant, she would be “killed or put into a nursing home,” these allegations, standing alone, do not indicate that decedent’s will was overcome. Objectant proffers no evidence, either direct or circumstantial, that, but for the coercion of petitioner and others, decedent intended a different testamentary scheme that would have included objectant. To the contrary, as the attorney-drafter notes; “it was natural for decedent to exclude her son from the will in view of the many years of hostile relationship between the two individuals.”Pamela states that she heard and observed petitioner and Darren “threaten” decedent and tell her to have nothing to do with objectant, “or else.” The affidavits in opposition to the motion repeatedly parrot the phrase that petitioner threatened and intimidated decedent into disinheriting objectant, rather than provide any evidence or specific facts that would indicate decedent’s intent to include objectant in her testamentary scheme. It is well settled that mere speculation is insufficient to establish undue influence. Matter of Bustanoby, 262 A.D.2d 407 (2d Dep’t 1999). Bare assertions, unsupported by specific facts, “are insufficient to raise an issue of fact as to undue influence.” Matter of Malone, 46 A.D.3d 975, 977-978 (3d Dep’t 2007). Even if objectant offered circumstantial evidence of undue influence (which he has not), a conclusion of undue influence may not be made where the circumstances supports conflicting inferences; “To avoid the will of a competent testator on the ground of undue influence, the contestant must show facts entirely inconsistent with the hypothesis of the execution of the will by any means other than undue influence.” In re Will of Henderson, 253 A.D. 140 (4th Dep’t 1937). Notably, decedent’s testamentary plan is not an “unnatural one” and it is “equally inferable that decedent favored some of her relatives more than others.” Matter of Malone, 46 A.D.3d at 978.The objectant has failed to demonstrate the existence of a triable issue with respect to his objection that the propounded instrument was the product of undue influence, and therefore, the petitioner’s motion to dismiss the objection is granted.FraudThe objectant alleges that the propounded instrument is the product of fraud on the part of petitioner and others. It is well established that, in a probate proceeding, the burden of proof on claims of fraud and undue influence lie with objectant. Matter of Sanger, 45 Misc.3d 246 (Sur. Ct. Suffolk Co. 2014). To prove fraud, the objectant must establish by clear and convincing evidence that a false statement was made to the testator, which would have induced him to make a will with different provisions than if he had not heard the statement. Matter of Bianco, 195 A.D. 2d 457 (2d Dep’t 1993). The fraud itself must have induced the will in order to deem the will invalid. Matter of Ranaldo, 104 A.D.3d 857 (2d Dep’t 2013).The objectant has not identified any false statement made to the testator to induce her to make a will with provisions different than if she had not heard the statement. Inasmuch as the objectant has the burden to prove this objection by clear and convincing evidence, the objection based upon fraud is dismissed.ConclusionFor all the foregoing reasons, the petitioner’s motion for summary judgment dismissing each of the objections to probate is granted. The Court is satisfied that the propounded instrument, dated June 9, 2006, is genuine and duly executed, and at the time of its execution, the decedent was competent to make a will and was not under any restraint. EPTL 3-2.1.Accordingly, the propounded instrument will be admitted to probate as the decedent’s Last Will and Testament, and Letters Testamentary shall issue to Arnel Harper, upon her duly qualifying according to law. SCPA 1408.Settle decree.Dated: January 14, 2019Brooklyn, New York
