Surrogate Kelly ESTATE OF BERNHARD ECKERT, Deceased (16-3279/A) — Petitioner, decedent’s daughter Susan Eckert Barsz (Susan), moves for summary judgment dismissing the objections filed by decedent’s sons, Robert Eckert (Robert) and Edward Eckert (Edward), and granting probate of an instrument dated June 3, 2014. In addition, petitioner seeks the imposition of sanctions against objectants, and an award for attorney’s fees, costs and disbursements. Objectants oppose the motion. The guardian ad litem appointed to represent decedent’s surviving spouse has submitted an affirmation in response stating that a notice of a right of election has been filed on the spouse’s behalf, but takes no position with respect to the grant or denial of the motion. The decedent died on July 2, 2015 at the age of 89 years survived by his spouse, Victoria Eckert (Victoria), and their three children, petitioner and objectants. The instrument sought to be probated as the decedent’s will is signed and each page is initialed, it contains an attestation clause, it is subscribed by the attorney-draftsperson and two other witnesses, and a self proving affidavit is annexed. The propounded instrument leaves decedent’s tangible property to his spouse if she survives, otherwise to his daughter Susan. The residuary estate pours over to a revocable trust which was created the same day as the propounded instrument.1 All estate taxes are to be charged against the residuary estate. The instrument further provides that any reference therein to the terms “my child” or “my children” shall specifically include the decedent’s daughter Susan, but not his sons Robert or Edward “because of their lack of affection.” The instrument also contains an in terrorem clause. Contemporaneous with the execution by decedent of the instrument and trust document, a purported “mirror” will and trust were executed by decedent’s spouse, Victoria. Robert and Edward have interposed objections to the probate of the instrument. The objections are as follows: 1. That on June 3, 2014, at the time of the alleged making of the Will, Decedent was not competent to make a will in that he did not know the nature, extent or value of his assets, was not of sound mind or memory, was impaired as a result of severe mental illness, and was not otherwise mentally capable of making a will, and, among other things, lacked the clearness of mind and capacity necessary to understand the nature and contents of the Will. Additionally, on that date, Decedent did not understand and appreciate the natural objects of his bounty as his judgment was impaired by mental illness. 2. That the Will so offered for probate was not freely and voluntarily made by Decedent, but instead, the said writing was obtained and procured by the undue influence of Susan Eckert Barsz and/or other persons acting in concert or privity with her or independently whose names are presently unknown to Respondents. Furthermore, the Will was the result of the moral coercion and/or acts of importunity of Susan Eckert Barsz and/or other persons acting in concert or privity with her or independently whose names are presently unknown to Respondents, who destroyed the free agency of Decedent, and caused Decedent to execute the Will against his free will and desire. 3. That the Will was obtained and procured by the fraud of Susan Eckert Barsz and/or other persons acting in concert or privity with her or independently whose names are presently unknown to Respondents. 4. That the Will so offered for probate, if in fact subscribed and published by Decedent, was a mistake, or resulted from a misapprehension of a material fact, an insane delusion, or a misunderstanding or lack of knowledge on the part of Decedent as to the nature, content and effect thereof. 5. The will so offered for probate was not duly executed by Decedent in accordance with the statutory formalities required by law and is thus invalid for lack of due execution. Summary judgment in a contested probate proceeding is appropriate where the petitioner establishes a prima facie case for probate and the objectant fails to raise any material factual issues with respect to the validity of the will (Matter of Sabatelli, 161 AD3d 872, 873; Matter of Curtis, 130 AD3d 722; Matter of Cloverd, 52 AD3d 971, 972; Matter of Minervini, 297 AD2d 423, 424; Matter of Coniglio, 242 AD2d 901). Summary judgment may be granted even where the proceedings involve issues of a fact-sensitive nature, such as fraud and undue influence (see Matter of Robbins, 61 Misc 3d 1211[A] *3; Matter of Demaio, 43 Misc 3d 1218[A]**3). Petitioner, as the movant seeking summary judgment, must establish prima facie entitlement to judgment as a matter of law in the first instance (see e.g. Matter of Mooney, 74 AD3d 1073, 1074; Matter of DiChiaro, 39 AD3d 751; see also Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853; Zuckerman v. City of New York, 49 NY2d 557, 562). Once the requisite proof has been proffered, the objectants must assemble and lay bare affirmative proof that their claims are real and capable of being established at trial (see Stainless, Inc. v. Employers Fire Ins., 69 AD2d 27, affd 49 NY2d 924). Although the objectants are to be afforded every favorable inference that may be drawn from the evidentiary facts alleged (see McArdle v. M & M Farmes, 90 AD2d 538), the allegations put forth must be specific, detailed and substantiated by evidence in the record; mere general conclusory and unsupported allegations are insufficient to defeat a motion for summary judgment (see Iselin & Co. v. Mann Judd Landau, 71 NY2d 420; Estate of O’Hara, 85 AD2d 669, 671). In support of the motion, petitioner submitted, inter alia, a copy of the purported will and self-proving affidavit from the attesting witnesses executed contemporaneously with the instrument. Each of the attesting witnesses declared that the decedent was “of sound mind, memory, and understanding and not under any restraint or in any respect incompetent to make a will,” and that in their respective opinions he “could read, write, and converse in the English language and was suffering from no defect of sight, hearing or speech, or from any other physical or mental impairment that would affect his capacity to make a valid will.” In addition to the witnesses’ affidavit, petitioner proffered copies of the transcripts of the SCPA 1404 examinations of the drafting attorney, who also supervised the execution ceremony and acted as an attesting witness, and of the two attesting witnesses, the attorney’s secretary and legal intern. The attorney and witnesses testified regarding the circumstances involved in the instrument’s execution and the usual office procedure that was followed, indicating that the instrument was executed in conformance with the required formalities for a will. They also gave testimony relevant to the decedent’s competency, capacity and overall demeanor at the time, stating the decedent was “chatting with us,” “made a lot of conversation,” and describing him variously as “funny,” “very with it,” “younger than his years” and “just fine.” The attorney also testified as to his personal meetings and telephone discussions with the decedent concerning the decedent’s assets, his relationships with his children, those to whom he wished to have his assets pass, as well as tax issues and tax saving suggestions. He described the decedent as “a big presence,” “take charge kind of guy,” who was “controlling the show.” Based on her submissions, petitioner has made a prima facie showing of entitlement to judgment as a matter of law for dismissal of each of the objections and the admission to probate of the instrument (see Matter of Sabatellli, 161 AD3d 872; Matter of Jacobs, 153 AD3d 622; Matter of Curtis, 130 AD3d 722; Matter of Vosilla, 121 AD3d 1489; Matter of Templeton, 116 AD3d 781; Matter of DiDomenico, 101 AD3d 998; Matter of Rottkamp, 95 AD3d 1338). Petitioner having proffered the requisite proof establishing a prima facie case for probate, the objectants must submit evidence sufficient to raise a triable issue of fact in opposition in order to defeat summary judgment (see Matter of Bullock, 2019 N.Y. App. Div. LEXIS 3554*3; Matter of Sabatelli, 161 AD3d 872, 873; Matter of Templeton, 116 AD3d 781, 782). In opposition to petitioner’s motion, the objectants each submitted their own individual affidavits; affidavits from Robert’s wife, son and daughter-in-law; and an affirmation from their attorney with multiple exhibits and a Memorandum of Law. Included with the annexed exhibits are copies of the transcripts of petitioner’s SCPA 1404 examination and email communications between petitioner and the drafting attorney. In their opposition papers, the objectants do not address and have not presented any evidence with respect to their objections numbered 3 and 5, alleging fraud and lack of due execution respectively. Since the objectants have not produced any evidence to raise any issue of fact regarding fraud or lack of due execution, summary dismissal of objections numbered 3 and 5 is warranted. As to objection numbered 4, no evidence has been presented by the objectants that the decedent suffered from an insane delusion as alleged therein. To the extent the objection further alleges that the propounded instrument was a mistake, or that it resulted from a misapprehension of material fact or decedent’s misunderstanding or lack of knowledge as to the nature, content and effect of the instrument, it is subsumed within the objection regarding the decedent’s testamentary capacity and need not be stated as a separate matter (see e.g. Matter of Kemble, 149 AD2d 899; Matter of Ford, 2010 NYLJ LEXIS 3263; Matter of Strausman, 1996 NYLJ LEXIS 2693). Accordingly, summary dismissal of objection numbered 4 is granted. Turning to the objection of lack of testamentary capacity, the proponent bears the burden of proving that at the time of execution of the propounded instrument the decedent understood in a general way the nature and consequences of executing a will, the nature of his property, and the natural objects of his bounty (see Matter of Kumstar, 66 NY2d 691, 692; Matter of Mele, 113 AD 3d 858, 859). The capacity to execute a will is minimal, lower than that required to execute most other legal documents or contracts (Matter of Coddington, 281 AD 143, affd 307 NY 181; Matter of Safer, 19 AD2d 725, 726). The question of testamentary capacity concerns a person’s mental condition at the time of the execution of the will; evidence relating to the condition of the testator before or after the execution is only significant insofar as it bears upon the strength or weakness of the testator’s mind at the exact hour of the day of execution (see Matter of Hedges, 100 AD2d 586). A testator needs only a lucid interval of capacity to execute a valid will, and this interval can even occur contemporaneously with an ongoing diagnosis of mental illness, including depression (see Matter of Esberg, 215 AD2d 655), or progressive dementia (see Matter of Friedman, 26 AD3d 723). Also, it has long been recognized that old age and physical weakness are not necessarily inconsistent with testamentary capacity (Children’s Aid Soc. v. Loveridge, 70 NY 387; Matter of Williams, 13 AD3d 954). The objectants contend that there is conflicting evidence regarding the decedent’s testamentary capacity. In their memorandum of law they generally claim that the decedent was an infirm and vulnerable person, in a mentally and physically weakened state at the time he executed the propounded will and trust instrument. However, they have not submitted any medical evidence suggesting that the decedent’s mental faculties were impaired at the time of execution which would refute the affidavits and testimony of the attesting witnesses regarding the decedent’s capacity at that time. Their self-serving affidavits regarding the condition of the decedent’s home is of no moment insofar as the decedent’s capacity is concerned. And while there was testimony from the attorney that the decedent had some difficulty finding the signature line under the lighting conditions existing in the decedent’s dining room at that moment, the sworn testimony is devoid of any indication that the decedent was physically incapacitated or otherwise lacked testamentary capacity at the time the instrument was executed. The objectants also contend that the evidence militates against the conclusion that the decedent knew and understood the nature and extent of his assets. They claim that at the initial meeting with the drafting attorney the decedent was not able to provide the amount of cash he had or give an accurate statement as to the value of his securities, especially his Wells Fargo account, or how those assets were titled. They note that it was Susan who ultimately completed the attorney’s estate questionnaire setting forth the decedent’s financial information. Thus, they claim the evidence shows that the decedent did not have a genuine knowledge of what he owned. In this regard, the drafting attorney testified at his examination that he met twice with the decedent and his wife at their house. At his first meeting he discussed with the decedent and his wife generally what they owned. He recalled the decedent advising him that he had a brokerage account “in the millions,” as well as a building in Whitestone, an interest in a Florida realty corporation, bank accounts, and life insurance. The attorney further testified that he also reviewed the financial information contained in the completed estate questionnaire with the decedent following their first meeting and before the execution of the propounded will and trust instrument. The documentary evidence submitted demonstrates that during the relevant time period the decedent was engaged in managing his Wells Fargo account and making purchases. A testator need only have a general rather than a precise knowledge of his or her assets (see Matter of Walker, 80 AD3d 865, 867). The evidence presented demonstrates that the decedent had a sufficient awareness of the nature and extent of his assets. The objectants further contend that the evidence does not demonstrate that the decedent knew the plan and effect of the propounded will or that it reflected the decedent’s testamentary intentions. In this regard they note that the instrument contains a tax clause which requires that all taxes be paid from the residuary estate without apportionment. Because the vast majority of the decedent’s assets were held in joint survivorship accounts with Susan, the tax burden imposed by the tax clause will extinguish the residuary that passes by the will. Thus, they argue, that while the purported will and trust appear to make the decedent’s spouse the primary beneficiary of the decedent’s estate, the actual result is that the decedent’s spouse will not receive any of the assets bequeathed to her. They conclude, therefore, that if the decedent wanted his wife to receive his assets, given the effect of the tax clause, the decedent could not have known the plan and effect of the propounded will, and it does not reflect his testamentary intent. When a testator who is literate and not ill, or otherwise disabled, subscribes and executes a will in accord with the required formalities, the fact thereof creates a presumption that the testator knows the contents of the instrument and that it expresses his will (see Matter of Seelig, 302 AD2d 721; Matter of Regan, 206 AD 403). Furthermore, while a testator must be able to understand in a general way the scope and meaning of the provisions of his will, he need not have a lawyer’s understanding of the will or the legal import of its terms (see Matter of Cookson, 49 Misc 3d 1219(A), *12; Matter of Divine, 41 Misc 2d 211, 217). Here, the drafting attorney testified that he had tax planning discussions with the decedent. At their initial meeting he suggested the making of gifts to an irrevocable trust, but the decedent was not interested in doing so at that time. Estate taxes were also discussed within the context of the decedent’s expressed desire, along with that of his wife, for the two business interests to pass, one to their sons, and the other to their grandson, and the bulk of their estates to their daughter. The attorney explained how disposing of the assets to these individuals in the first instance would accelerate estate taxes, and he pointed out the tax saving benefits of the unlimited marital deduction and of a credit shelter trust. As a result of this discussion, the decedent decided for tax purposes to have the assets pass first to his spouse. The decedent was also advised that there would be a need for sufficient assets to be captured by the will or held in the revocable trust in order to take advantage of the tax saving plan. The attorney suggested that because much of the decedent’s assets were held jointly with Susan, the decedent should retitle some of the assets to ensure there would be sufficient assets owned by the trust, and the decedent indicated that he understood.2 The evidence demonstrates that the attorney comprehensively reviewed the tax issues with the defendant and that an estate plan was devised to have the decedent’s assets pass first to his spouse to take advantage of tax saving and deferral measures. Apparently, decedent’s actions, at most, demonstrates the frequent example of a client failing to fully fund or implement a drafting attorney’s advice. Ultimately it is clear that the decedent’s failure to fully transfer all of the subject assets as discussed accompanied by the general practice of providing for estate taxes to be paid out of the residuary estate results in being beneficial to Susan, those facts, however, are insufficient to raise a triable issue with respect to the decedent’s capacity to comprehend the terms of the purported plan or its insertion in the instrument. Objectants, not having produced evidence sufficient to raise an issue of fact as to the decedent’s testamentary capacity, objection numbered 1 alleging lack of testamentary capacity is dismissed. The final objection to the purported will is that it is the product of undue influence. For the propounded will to be denied probate based on undue influence, it must be shown that the instrument resulted from influence amounting 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 (see Matter of Walther, 6 NY2d 49, 53; Matter of Zirinsky, 43 AD3d 946, 947-948). A mere showing of opportunity, and even a motive, to exercise undue influence does not justify submitting the issue to the jury, unless there is in addition evidence that such influence was actually utilized (see Matter of Walther, 6 NY2d at 55; Matter of Fiumara, 47 NY2d 845, 846). Since undue influence is seldom practiced openly and direct proof is rarely available, it can be shown by all the facts and circumstances surrounding the testator, the nature of the will, his family relations, the condition of his health and mind, his dependency upon and subjection to the control of the person supposed to have wielded the influences, the opportunity and disposition of that person to wield it, and the acts and declarations of that person (see Matter of Henig, 11 AD3d 614, 615; Matter of Anna, 248 NY 421; Rollwagen v. Rollwagen, 63 NY 504). Although undue influence may be established by circumstantial evidence, the evidence must be substantial in nature, and an inference of undue influence cannot be reasonably drawn from circumstances that are not inconsistent with a contrary inference (Matter of Favaloro, 94 AD3d 989, 992; see Matter of Walther, 6 NY2d at 54). In furtherance of their claim of undue influence, objectants allege that during the period surrounding the execution of the propounded will, the decedent was in a mentally and physically weakened state, reliant upon Susan’s care, and that the decedent was fearful of Susan. They also claim that Susan isolated the decedent from the objectants and their families. Of greater evidence of the exercise of undue influence, the objectants contend, is Susan’s involvement in the creation of the propounded will. It is claimed that the decedent’s preference was not to have a will, but Susan urged him create one. Objectants point to the evidence adduced that prior to the engagement of the drafting attorney, Susan assisted the decedent and her mother in an attempt at creating handwritten wills. They also point out that Susan was present for the two meetings between the decedent and the drafting attorney and was on the telephone calls with the attorney and the decedent. In addition, Susan ultimately filled out the attorney’s estate planning questionnaire, and she was the primary contact with the attorney, exchanging numerous emails with him. Initially, the court notes the record does not contain any evidence to support the argument that the decedent was in fear of Susan, or that Susan systematically isolated the decedent from family and friends. Nor does the evidence support the claim that the decedent did not wish to have a will. Clearly the evidence shows the decedent was of an advanced age and relied upon his daughter Susan to assist with some of his mundane needs, such as doing his shopping, accompanying him on his doctor appointments, driving him to the bank and the like. Yet there is no evidence to demonstrate that the decedent was so dependent upon Susan as to be subject to Susan’s control in the management of his affairs. The evidence does establish the decedent had been estranged from his son Robert for many years, and that his son Edward, with whom the decedent shared business relationships, sued the decedent several times. In multiple handwritten personal letters, the decedent expressed his disappointment and dismay at his sons’ lack of a loving relationship toward him. In 2009 the decedent wrote a letter to Susan conveying to her the need for a will that would stand up against her brothers and their children, telling her that he did not trust his own lawyers and that “…you must get us a trusting lawyer. I want you to be the only inheritance and we must get an honest lawyer, who knows to make solid testament.” Despite the tone of his letter, it appears that the decedent did not take steps to make his will until some years later. In November 2013, the decedent conferred with two separate attorneys about preparing his will. Their individual engagement letters indicate that the decedent had expressed to each attorney his desire to leave his interest in the Whitestone building to Robert and Edward, and the remainder of his estate to Susan. The decedent, however, decided not to retain either of those attorneys to prepare his will. Thereafter, in February 2014, the decedent’s accountant, upon learning from the decedent that he did not have a will, suggested to the decedent that, until he did have an attorney prepare his will, he should write down his wishes as to how he would like his assets disposed. It is at that time that the decedent wrote down his wishes in an informal will leaving the Whitestone building to his sons Robert and Edward, his interest in the Florida corporation to his grandson Max, and the rest to Susan. The decedent’s accountant, thereafter, recommended the drafting attorney to the decedent and contacted the attorney on behalf of the decedent and Victoria. The accountant introduced the attorney at his initial meeting with the decedent and his wife at their home in March 2014. Susan was also present at this meeting. At some point in the meeting, Susan withdrew to another room to fill out, at the decedent’s request, the attorney’s estate questionnaire. During the meeting the decedent told the attorney that he wanted to leave the Whitestone building to his sons, his interest in the Florida corporation to his grandson, and the lion’s share to Susan. The decedent also related to the attorney the difficult relationship that had existed between himself and his sons, and expressed his concern that the sons would challenge his will. The decedent not being email conversant, Susan was enlisted to communicate with the attorney on behalf of her parents. Acting as the go-between, Susan was aware of the contents of the proposed will and trust. In one of the emails Susan expresses concern that the Whitestone building was not being given directly to her brothers, to which the attorney responded that the decedent had decided to pass it to her mother in the first instancet to maximize the tax benefits. When the time came for the execution of the documents, Susan was present at the decedent’s home. The attorney requested that she leave the room. After she did so, the attorney pointed out to the decedent and Victoria that their wills and trusts provided for a much larger distribution in favor of Susan over their sons, to which they responded “good,” that’s what they wanted. To satisfy himself that there was no undue influence, the attorney asked the decedent and Victoria if anyone, and more specifically, if Susan, was forcing them to make the bequests which they had provided. Receiving answers in the negative, the attorney was satisfied that there was no undue influence and proceeded with the execution of the instruments. A confidential relationship and active involvement in the procurement and drafting of a will can support an inference of undue influence (see e.g. Matter of Neenan, 35 AD3d 475). The objectants have not argued that Susan was in a confidential relationship with the decedent, but even if she were, the relationship is counterbalanced by the closeness of the relationship which existed between them (see Matter of Zirinsky, 10 Misc 3d 1052[A], affd 43 AD3d 946; Matter of Tufaro, 2012 NYLJ LEXIS 1694, *12). As to Susan’s involvement in procuring the will, there is no evidence that Susan coerced or encouraged the decedent to make a will. Rather, it was the decedent’s accountant who urged the decedent to have a will prepared and suggested that he write down his wishes. It was also the accountant who recommended the drafting attorney and introduced the attorney to the decedent. The record also reveals that despite Susan’s involvement concerning the Whitestone building, the decedent decided at his attorney’s suggestion to take advantage of the potential tax benefit of passing it to Victoria in the first instance. Also, there in no evidence that Susan had any input with respect to the inclusion of the tax apportionment clause. On the other hand, apparently Susan was thereafter the go-between the decedent and the attorney and, therefore, was privy to many of the discussions concerning the will and trust, and even went so far as to express her own concern to the attorney that the Whitestone building was not being left directly to her brothers. Viewing all this as true, as the court must, and assuming it is believed by a trier of fact, these facts can not, as a matter of law, establish she exerted any influence undue or otherwise as a matter of law over the dispositive provisions of the will (see Matter of Zirinsky, 10 Misc 3d 1052[A]). The fact Susan had the opportunity to exercise undue influence, and assuming she also had a motive to do so, the objectants have not shown facts that it was actually exercised (Matter of Walther, 6 NY2d 49, 55). While the court can not condone, or recommend as best practice the involvement of a third party in the communication or relay of information between an attorney draftsperson and a testator, as was done here, there is no proof raising an issue of fact, in this matter, that the decedent’s prior testamentary scheme was amended in any fashion to the detriment of the objectants or benefit of Susan as a result of her actions. Having failed to demonstrate that an issue of fact exists that undue influence was exercised over the decedent, the branch of the petitioner’s motion for summary judgment dismissing the objection to the validity of the instrument on the ground of undue influence as alleged in objection numbered 2 is granted. All objections having been dismissed, summary judgment is granted to the petitioner admitting the instrument dated June 3, 2014 to probate as the decedent’s last will and testament. Letters testamentary shall issue to the petitioner upon duly qualifying. With respect to that portion of petitioner’s motion which seeks sanctions, attorney fees and costs against objectants, the court does not find that petitioner has established that objectants have engaged in frivolous conduct as that term is defined in Part 130 of the Rules of the Chief Administrator of the Courts (22 NYCRR §130-1.1[c]) to impose sanctions. Also with respect to the request for an award for attorney’s fees and costs pursuant to SCPA §§2301, 2302, and 2303, the Court does not find that the objectants acted in bad faith in opposing probate so as to warrant imposing upon the objectants the payment of petitioner’s attorney’s fees (see SCPA 2302[3][a]). Accordingly, in the court’s discretion, the branch of the motion to impose sanctions and awarding petitioner attorney’s fees against the objectants is denied, and the decree to be entered herein shall so provide. This is the decision and order of the court. Settle decree. Dated: October 11, 2019
