The following papers were considered in determining this motion for summary judgment:Notice of Motion for Summary Judgment,Affirmations in Support 1, 2, 3, 4Affidavit in Opposition 5Reply to Affirmation in Opposition 6DECISION Rosalind Johnson-Fortson (Johnson-Fortson) petitioned for letters testamentary and for probate of a written instrument dated November 20, 2014 (the propounded instrument), which purports to be the last will and testament of Jacqueline D. Hall (the decedent). Tanisha Robinson (objectant)1 filed objections, alleging that the propounded instrument is not the last will and testament of the decedent, that the propounded instrument was not duly executed, that the decedent was not of sound mind and memory and was incapable of executing a will; that the propounded instrument was procured by fraud of Johnson-Fortson, and that the propounded instrument was procured by undue influence exercised by Johnson-Fortson. Johnson-Fortson died during the pendency of the probate proceeding, and Marvin C. Peguese (petitioner), the nominated successor executor under the propounded instrument, has substituted in her place. Petitioner now moves for summary judgment to dismiss the objections. For the reasons stated below, the motion is granted.BackgroundThe decedent died on November 26, 2014, survived by her daughter, the objectant herein. On November 20, 2014, the decedent executed the propounded instrument, which was prepared by an attorney, Elizabeth R. Grant, Esq. (the attorney-drafter). The decedent’s execution of the propounded instrument was supervised by another attorney, Eric W. Apple, Esq. (Apple), before two attesting witnesses, Niteesa Brooks (Brooks) and Cathy M. Jones (Jones, and together with Brooks, the attesting witnesses). According to the propounded instrument, the decedent bequeathed her residuary estate to the Trustee of The Jacqueline D. Hall Living Revocable Trust (the Trust), which was also executed on that date before the attesting witnesses. The Trust provides that upon the decedent’s death the net proceeds of the principal (consisting of proceeds from the sale of the decedent’s cooperative apartment), shall be distributed as follows: i) 40 percent in trust for the benefit of Imani D. Robinson (Imani) until she is 21 years of age and then distributed to her outright, ii) 40 percent in trust for the benefit of Chloe C. Hohenkirk (Chloe) until she is 21 years of age and then distributed to her outright, iii) 8 percent to Johnson-Fortson, (iv) 8 percent to Robin Peguese (Robin), and (v) 1 percent each to Larry Peguese (Larry), the petitioner, the objectant, and Ashley Robinson (Ashley).2Summary Judgment MotionThe petitioner moves for summary judgment, seeking dismissal of the objections and probate of the propounded instrument. In support of the motion, petitioner submits the affirmations of his counsel, an affidavit of the petitioner, deposition transcripts of the attorney-drafter and the attesting witnesses, correspondence from the decedent, the attorney-drafter’s file, the propounded instrument, and other sundry documents. In opposition, the objectant submits her own affidavit and the deposition transcripts of the attesting witnesses. While the objectant states that she has annexed a copy of the decedent’s medical and hospital records to her opposition, none are actually attached to the papers.3The 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 (1957) 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 the 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.The petitioner avers that the decedent intended to bequeath most of her estate to her two youngest granddaughters, Imani and Chloe, because she maintained a close relationship with them and had concerns about their welfare and education. Petitioner states that the decedent had a “difficult relationship” with the objectant, whom she described as financially irresponsible and emotionally unsupportive to her three daughters.According to the affirmation of the attorney-drafter, who had previously prepared wills for the decedent, on March 25, 2010, and September 23, 2010, wrote to her stating that she wanted i) to revoke a power of attorney that named the objectant as the decedent’s attorney-in-fact, ii) to decrease the objectant’s inheritance, and iii) to remove her as the co-executor of a prior testamentary instrument. In her affirmation, the attorney-drafter states that in preparation for the revision, she spoke to the decedent several times on the telephone and that she firmly recognized her distinctive voice. Thereafter, the attorney-drafter prepared several documents which she emailed to the decedent, including a will, a revocable trust, a funding agreement, an affidavit of trust, distribution instructions, a health care proxy, living will and power of attorney. Upon her review of the documents, the decedent requested minor changes, but was otherwise satisfied with the provisions in the propounded instrument offered for probate herein.The attorney-drafter further states in her affirmation that prior to the execution of the aforementioned documents, the decedent was admitted to the hospital and requested that the attorney-drafter arrange for execution of the documents there. However, the attorney-drafter was out of town and thus requested that Apple, who had previously met the decedent when he witnessed her execution of a prior will, go in her stead. Apple states in his affirmation that he was present with the two attesting witnesses, to wit, Brooks, an employee of the attorney-drafter and Jones, an acquaintance of the decedent. Apple describes the decedent as alert and talkative, well aware of her surroundings, and oriented as to time and place. Apple avers that he observed the decedent read the propounded instrument and the Trust. Moreover, Apple employed a “will execution memorandum” created by the attorney-drafter whereby he contemporaneously entered notations regarding the decedent’s testamentary capacity, her orientation as to time and place, as well as additional anecdotal information she provided, such as her statement that her sister, Johnson-Fortson was celebrating a birthday on that day. Apple avers that the “will execution memorandum” was also used to familiarize the decedent and the attesting witnesses with the execution ceremony process. For example, Apple asked certain questions set forth in the will execution guide and noted the decedent’s responses. The decedent also read a portion of the “will execution memorandum” aloud to him and the attesting witnesses, to wit:I Jacqueline D. Hall declare this to be my last will and testament, consisting of three pages; I execute it willingly as my free and voluntary act. I am of legal age and sound mind and make this under no constraint or undue influence. All in the presence of the persons who have at my request and in my presence acted as witnesses on this day November 20, 2014 in the City of Brooklyn, County of Kings and State of New York.Apple then observed the decedent sign the propounded instrument and other documents and thereafter, the witnesses also signed and initialed them. Apple avers that the decedent was competent and understood the entire process, and did not appear to be under the influence of any person. The SCPA 1404 testimony of Brooks and Jones confirms Apple’s rendition of events.The petitioner argues that based on the aforementioned circumstances, he has established a prima facie case of due execution, and argues the objectant’s first, second and third objections, namely that the propounded instrument is not the will of the decedent and was not duly executed, and that the decedent lacked testamentary capacity, are unsubstantiated and must be dismissed. Further, the petitioner avers that the decedent was aware of who the natural objects of her bounty are because all persons whom she named as beneficiaries are her relatives. Moreover, the petitioner asserts that the Trust terms underscore the decedent’s awareness as to the nature and extent of her property, as it references her main asset, the cooperative apartment.The petitioner also avers that the objectant has not met her burden with respect to her objections alleging fraud and undue influence. He avers the objectant has raised no specific allegations evidencing fraud and further states that the affirmations of the attorney-drafter, Apple and the SCPA 1404 transcripts demonstrate the lack of undue influence, particularly as the bulk of the estate was left to two of the decedent’s granddaughters, rather than the petitioner.In opposition, the objectant argues that the propounded instrument was “written up without my mothers’ permission, due to the fact that she left all of the other assets that she owned in my name. They sold her co-op with a false will to get a percentage of the sale from the co-op.” The objectant also alleges that “the lawyer removed herself from representing Mrs. Johnson (my aunt) due to the discrepancies of the will and due to the mis-communication between my aunt and the lawyer.” The objectant refers to the decedent’s medical records, which have not been not provided, which allegedly show that the decedent was “very ill and taking a lot of pain medicine.” The objectant states that “[t]he pain medication clouded her judgment and she was very close to death when the alleged will was signed.” The objectant avers that Jones said she was not asked to serve as a witness to the propounded instrument and that neither she nor Brooks remember the decedent having read the propounded instruments prior to execution. The objectant points to discrepancies in the propounded instrument that purportedly allowed Johnson-Fortson to hold on to “equity” that belongs to the objectant. The objectant also avers that “my uncle and cousin were present in the hospital when the will was signed showing undue influence for my mother to give her estate away against her wishes when she was not in right state of mind because of the all pain killing medication she was receiving [sic].” The objectant also avers that the decedent could not have signed the propounded instrument because her hands were numb due to medication, and states, “I know she wasn’t the one who signed the will.”In reply, the petitioner avers that the objectant’s aforementioned allegations are simply false and misleading as well as unsubstantiated. Of significance, the petitioner states that the objectant has not annexed any medical records to her opposition papers, and that the objectant has ignored the request to rectify this omission.DISCUSSIONLack of Due ExecutionThe objectant asserts that the decedent executed the propounded instrument without adhering to the statutory formalities required by EPTL 3-2.1, and that she lacked testamentary capacity. The proponent has the burden of proof in establishing due execution. Matter of Kumstar, 66 N.Y.2d 691 (1985). 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 signature of at least two attesting witnesses, who must sign at the request of the testator. EPTL 3-2.1. Where an attorney supervises the execution of a will, there is a presumption of regularity and of proper execution in all respects. In re Tuccio, 38 A.D.3d 791 (2d Dep’t 2007); In re Weltz, 16 A.D.3d 428 (2d Dep’t 2005). Further, where an attorney states to the attesting witnesses, in the decedent’s presence, that decedent is executing a will, such statement meets the publication requirement. Matter of Frank, 249 AD2d 893 (4th Dep’t 1998).Petitioner avers that the objection raised as to due execution is refuted by Apple’s affirmation, which sets forth with specificity the steps taken to ensure due execution. Indeed, during their SCPA 1404 examinations, both attesting witnesses testified that they were told, prior to execution, that the document being signed was the decedent’s will. Both also testified that the attorney-drafter and the decedent were present for the execution ceremony, and confirmed that their signatures appeared on the propounded instrument.Based on the record presented, the petitioner has provided prima facie evidence of due execution of the propounded instrument. In re Weinberg, 1 A.D.3d 523 (2d Dep’t 2003). The supporting affidavits of Apple, who supervised the execution of the will, and the attesting witnesses support a finding that the propounded instrument was duly executed in accordance with the requirements of EPTL 3-2.1. Where, as here, an attestation clause accompanies the instrument, there is a presumption that the statutory requirements have been met (Matter of Farrell, 84 A.D. 3d 1374 [2d Dep't 2011]), thus shifting the burden to the objectant to proffer evidence in admissible form that the instrument was not duly executed. The objectant has failed to meet her burden and submit proof sufficient to create a triable question of fact with respect to due execution. Therefore, the petitioner’s motion to dismiss the objection on the ground of lack of due execution is granted.Testamentary CapacityIn a probate proceeding, the burden of proving testamentary capacity lies with the proponent of the will. Estate of Kumstar, supra. 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 her property, must know the natural objects of her bounty, and must know the contents of her will. Estate of Kumstar, at 692. Even where a testator suffered from an illness that may have affected her 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 executed the propounded instrument while admitted to a hospital on November 20, 2014, and she died six days later at the age of 62. Nonetheless, Apple and the attesting witnesses testified that, in all respects, the decedent appeared to be of sound and disposing mind, memory and understanding, competent to make a will, free of restraint, and not suffering from any defects, which would affect her capacity to make a will. Further, the beneficiaries of the Trust are the decedent’s grandchildren, her siblings, and, to a lesser extent, her daughter, the objectant, which supports a finding that the decedent was cognizant of the natural objects of her bounty. Moreover, the decedent’s main asset, shares in a cooperative apartment, was specifically referenced in the Trust, which also supports a finding that the decedent was likewise cognizant of the nature and extent of her property.While the petitioner has submitted evidence affirmatively attesting to the decedent’s competency, the objectant has not submitted any evidence refuting the decedent’s capacity. Although, she states that medical records prove that pain medication clouded the decedent’s judgment, no such medical records are annexed in support of that assertion. Further, as she was not present during the execution, the objectant has no first hand knowledge of the decedent’s capacity at the time that the propounded instrument was executed; therefore her statement that “pain medication clouded [the decedent's] judgment” is a conclusory and unsupported allegation, undermined by Apple’s affirmation and SCPA 1404 testimony. Thus, the objectant has failed 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.FraudThe objectant alleges that the propounded instrument is the product of fraud on the part of Johnson-Fortson. It is well-established that, in a probate proceeding, the burden of proof on claims of fraud and undue influence lies with an 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 induced her to make a will with different provisions than if she 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 that statement. Inasmuch as the objectant has the burden to prove this objection by clear and convincing evidence, the objection based upon fraud is dismissed.Undue InfluenceThe objectant also 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 support of this objection, the objectant avers that her uncle and a cousin (whom she does not identify) were present at the hospital during the propounded instrument’s execution. Apple’s affirmation and SCPA 1404 testimony state that no one other than himself and the attesting witnesses were present at the execution. However, assuming that the unnamed uncle and cousin were present, that alone, does not create a triable issue of fact sufficient to deny summary judgment on the issue of undue influence. No evidence is proffered to demonstrate that these unnamed relatives participated in the preparation or execution of the propounded instrument. Matter of Hedges, 100 A.D.2d 586 (2nd Dep’t 1984). Moreover, the objectant does not assert and offers no evidence that Johnson-Fortson and the petitioner had the opportunity to influence the decedent nor that they exercised any undue influence on her. Eighty percent of the decedent’s estate is bequeathed to the decedent’s minor granddaughters, the daughters of the objectant. Of the remaining 20 percent, only 8 percent is bequeathed to Johnson-Fortson and 1 percent to the petitioner, while the remaining 11 percent percent is bequeathed to various other relatives.The conclusions that the objectant proffers are speculative and unsupported as well as 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). Therefore, the objectant has failed to demonstrate the existence of a triable issue with respect to her objection that the propounded instrument was the product of undue influence, and therefore, the petitioner’s motion to dismiss the objection of undue influence is granted.The Signature on the Instrument Does Not Belong to the DecedentFinally, the remaining objection raised is that the propounded instrument is not the decedent’s will. The objectant only states that she does not believe that the signature on the propounded instrument is actually that of her mother. This statement, unsupported by any evidence, is insufficient to refute the testimony of Apple and the attesting witnesses, all who have testified that the decedent executed the propounded instrument in their presence. Accordingly, the petitioner’s motion to dismiss this objection is granted.CONCLUSIONFor 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 November 20, 2014, 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 shall be admitted to probate as the decedent’s Last Will and Testament, and Letters Testamentary shall issue to Marvin C. Peguese, upon his duly qualifying according to law. SCPA 1408.Settle decree.Dated: June 18, 2019
