Surrogate McGinty Peter F. Matera, Esq., for proponent April Richers John G. Rusk, Esq., for objectants John Bach and David Bach ESTATE OF ANN B. BACH, deceased (14-593) — This is a decision on a motion for summary judgment filed by April Richers, the daughter and nominated executrix of the estate of Ann Bach (hereinafter “Bach”). The will submitted for probate was dated May 22, 2014, about five months before Bach’s death. April Richers was the primary beneficiary of the estate, inheriting the 38-acre family farm, contents of the house and farm buildings and all of decedent’s tangible personal property. Bach’s sons, David and John Bach, were to share equally in the residuary estate, which consists of bank accounts and stock holdings valued at approximately $200,000. The farm’s assessed value at Bach’s death was $313,000, but John Bach believed it was worth $400,000 — $600,000 and David Bach believed it was worth closer to $800,000. More recently, a licensed appraiser engaged by objectants set its value at $335,000 as of Bach’s October 2014 death. David and John Bach object to their mother’s will on the grounds of undue influence exercised by their sister, April.1 The objectants allege that April pressured their mother to deviate from her earlier will, which had divided the estate equally among the three children. SUMMARY JUDGMENT Summary judgment is designed to eliminate from the trial calendar litigation which can be resolved as a matter of law (see Andre v. Pomeroy, 35 NY2d 361 [1974]). Allegations must be specific and detailed and substantiated by evidence in the record (see Matter of Foranoce, NYLJ, Aug 7, 2000, at 25, col 6 [Sur Ct NY Cty]). The movant must demonstrate first, that there are no material, triable issues of fact, and second, that it has proved its cause of action and is entitled to judgment as a matter of law (see Alvarez v. Prospect Hosp, 68 NY2d 320 [1986]). If movant proves his/her prima facie case, the burden shifts to the party opposing the motion to produce evidence of material issues of fact. Unsubstantiated allegations will be insufficient to carry the day for the party opposing summary judgment (Zuckerman v. City of New York, 49 NY2d 557 [1980]). The court’s role on a motion for summary judgment is limited to identifying any disputed material facts for trial (Sillman v. Twentieth Century-Fox Film Corp, 3 NY2d 395, 404 [1957]). Its primary task is thus not to determine contested facts, but merely to determine if any such issues of fact exist (Barr v. County of Albany, 50 NY2d 247, 254 [1980]; In re Estate of Gonzalez, 196 Misc 2d 986). In so doing, the facts must be construed in the light most favorable to the non-moving party (see Martin v. Briggs, 235 AD2d 192 [1st Dept 1997]). The evidence in this proceeding consists of Article 14 examinations of the attorney-draftsperson, Daniel N. Lamb, Jr., Esq. and his paralegal Patricia Gardiner, both of whom served as attesting witnesses, depositions of April Richers, John Bach, David Bach, Randy Richers and Elizabeth M. Costley, MD (the decedent’s physician) and affidavits from a number of Bach’s associates and family members. Medical records of Bach’s hospitalizations and her follow-up visits to Dr. Costley and her colleagues were also submitted. The testimonial evidence offered by both proponent and the contestants report statements allegedly made by the decedent to April, David, John or John’s wife, Maureen regarding the terms of the draft will and her feelings about it. One of the major obstacles to this evidence for all parties is CPLR §4519 (the Dead Man’s Statute). By operation of the Dead Man’s Statute, interested witnesses like April, John and David may not testify at trial about conversations with the decedent about her will (Philips v. Joseph Kantor & Co., 31 NY2d 307 [1972]). Such testimony is not, however, barred in a proceeding to defeat a motion for summary judgment (Mantella v. Mantella, 268 AD2d 852, 853 [3d Dept 2000]). It’s noteworthy, however, that even in the context of a pretrial proceeding, this testimony is accorded less weight if it comprises the bulk of a party’s evidence (see, also, Albany Savings Bank v. Seventy-Nine Columbia Street, 197 AD2d 816, 817 [3d Dept 1993] when “only testimony barred by CPLR §4519 is proffered, it is not sufficient to defeat a motion for summary judgment.”) FACTS NOT IN DISPUTE The following facts are undisputed. Ann Bach inherited her family’s farm property from her grandparents in 1981. It was operated largely as a hobby farm until April started her horse-boarding and riding instruction business on the property in 1999. Since childhood, April’s chief contribution to the farm was in the form of her labor, as she worked beside her father every day, beginning as a child and through adulthood, managing the farm and, later, her own business. The farm operations included maple sugaring and cultivating hay. Beginning in 1999, April leased the farm from her parents for $1.00 year. Her business was the basis for an agricultural exemption from real estate taxes and April made annual cash contributions of about $2,000 per year for real estate taxes and operating and capital expenses. She testified that she gave her parents cash because they would not accept a check from her. April also paid for liability insurance for the farm and stable operations. Ann Bach and her husband Charles (“Bub”) Bach had hired a local attorney to prepare their wills in April 1981, not long after the death of their son James. The wills were mirror images, each leaving the entire estate to the surviving spouse or, if no spouse survived, to their three children in equal shares. In her last years, Bach was diagnosed with COPD and osteoporosis. Bach had several hospitalizations in 2012-2014. She had a hip replacement in 2012 and broke her femur in 2013, both attributable to osteoporosis. She had a series of 3-4 bowel resection surgeries also in 2013. Surgery for a brain hemorrhage in 2005 did not result in any mental or neurological deficits. She recovered from each hospitalization to return to living independently on the farm, managing her household, meal preparation, laundry and housework. After the death of her husband in December 2013, Bach came to rely on April to drive her to shopping and medical appointments and for help with housework. Bach had always hated paperwork, so she often asked April to write out and sign the checks for her bills. Bach would examine the checks written by her daughter and mail the payments. April testified that she never signed her mother’s name to a check unless her mother asked her to. Her mother asked April to add April’s name to her account at Sawyer Savings some time in 2014. Charles “Bub” Bach’s death in 2013 prompted Bach to attempt to locate her copy of the 1981 will. She was very disturbed when she was unable to find it at home, sharing her distress with April. John overheard April and his mother talking about the missing document and on January 31, 2014, he called his friend and local attorney, Daniel N. Lamb, Jr., to report that his mother could not find her will. John asked Lamb to “help her out.” Bach’s original executed 1981 will was dropped off with Lamb by another local attorney. A few days later, Bach told her son that Lamb was coming to the house and asked him to be present for the meeting. April was also asked to attend. When Dan Lamb went to Bach’s home on February 6, 2014, he brought the 1981 will with him. He was surprised to find that John Bach and April Richers had joined his client for the meeting. Bach told Lamb she wanted to make a new will so that April would inherit the farm. John immediately objected. Lamb mentioned that April could buy the farm from her mother or that it could be gifted to April by deed, rather than by a will. But John wanted the house appraised, so that April could pay him and his brother their fair market share. Things got heated between April and John. In frustration, John exclaimed that the property should be sold, and the proceeds divided among the three children. Bach was very upset by the discussion because the farm had been in the family for several generations. Lamb found the siblings’ squabble over the farm in their mother’s presence distasteful in the extreme and he quickly called the meeting to an end. A second meeting on February 18, 2014, also at Bach’s home, was arranged. Because the first meeting had exposed a rift in the family, Lamb brought his paralegal Patricia Gardiner with him. They met alone with Bach for about an hour. Bach again said she wanted April to have the farm and her vehicles: Bach was proud of the family farm and was certain that only April would keep it intact and in operation after her death. The residue was to be split between John and David. Lamb understood that the residue would consist of accounts and investments; Bach provided him with a list of her intangible assets which she prepared. Lamb and Bach discussed each of the assets on the list and Lamb used his smartphone to get market values for her stock holdings. Lamb testified that he and his client discussed the unequal disposition of her assets among her three children and he even suggested ways that the property could be divided equally among all the children. Bach, however, was “adamant” that only April should inherit the farm. After the February 18th meeting, Lamb prepared a draft will which reflected Bach’s new testamentary plan, along with the nomination of April as executor and John as her successor. Lamb remarked that it wasn’t until May — nearly three months later — that Bach asked that her attorney return to the house to finalize the documents. Bach had left the envelope unopened for some time after receiving it from Lamb; she told April that it made her “unhappy” and that she “hated that damn thing.” Lamb and Bach met a third time on May 2, 2014, again at Bach’s home. As an added precaution he asked another attorney, Marie Bing, to join him to the meeting. A seasoned trusts and estates practitioner, Lamb took pains to interview Bach at length in the presence of attorney Bing so that she could independently assess his client’s testamentary capacity and plan. Bach wanted to make changes to the draft will. She indicated that John and David had seen the draft will and both were angry about it. Bach now wished to increase April’s bequest to include the contents of the house, leaving only the accounts and investments to John and David. Bach took Lamb through the house and showed him family heirlooms that were particularly important to her. She told her attorney that she was afraid that these and other items would be sold if she left them to John or David. Fearful that a family member would intercept the next draft of the will, Bach specifically directed Lamb not to send any further drafts to her home. When the revisions to the draft will had been made, Lamb telephoned Bach at home and read the dispositive terms to her. At the end of the conversation, Lamb instructed Bach to call his secretary to make an appointment. ARTICLE 1404 TESTIMONY The circumstances of the will preparation and its execution were detailed by Lamb and his paralegal, Patricia Gardiner, in an Article 14 examination. Neither Lamb nor Gardiner could recall who made the appointment for Bach to sign her last will and testament. April drove her mother to Lamb’s office on May 22, 2014. After she dropped her mother off, April left to do some errands. Bach was mentally sharp and well-dressed, but tiny, soft-spoken and frail. She was seated at a conference table in the library with Ms. Gardiner and attorney Lamb. Lamb had reviewed the final terms of the will with his client by telephone a few days before, but he asked her to read the will in its final form, which she did. As she signed the will, Bach reiterated why she was leaving the farm to April and her investments to her sons. After the will was signed and duly witnessed, April was asked to come into the library. Her mother had signed a power of attorney naming April as her agent, and Lamb took the opportunity to ask April to sign the agent’s acknowledgment on the form. The affidavits of the attesting witnesses establish that the Bach’s will was duly executed under Lamb’s supervision. The witnesses affirmed unequivocally that when Bach signed the will, she was “of sound mind and memory and understanding, and not under any restraint.” A dozen affidavits were proffered by proponent, all attesting to Bach’s capacity. The affiants describe Bach as sharp, independent, tough and very strong-willed. Bach’s regular physician, Elizabeth M. Costley, MD, who saw her patient about one month prior to the will-signing, ruled out any type of dementia, while conceding that during her final hospitalization in October 2014, Bach was “mildly confused.” Beverly Richers, April’s mother-in-law, was a regular visitor to Bach’s home. She visited with Bach on May 22 or 23, 2014. Richers reports that Bach’s mental status was “great” that day and that Bach told her that she was leaving the farm to April and stocks to David and John. Bach, she reported, “was not one to be manipulated…she was a strong-willed person…[she] made up her own mind and did things the way she wanted to.” Dianna C. Bach, who was Bub’s niece, assisted Bach with light housekeeping, laundry and transportation from March 2013 to Bach’s death in October 2014, spending part of most weekdays with her aunt. In 2014, Bach told her that she was leaving the farm to April and, after Bub’s memorial service on June 21, 2014, Bach told her niece she was afraid of David because of a telephone call she’d had with him. Blaine Gibbs, a family friend, saw Bach almost every day in 2014, helping with her woodstove and other tasks around the house. Bach never discussed her will with Gibbs, but while Bub was alive, he and Bach told him that they intended to leave the farm to April. Finally, Marie Bing, an attorney who was present at the will-signing and at a prior meeting on May 2, 2014 at Bach’s home, reported that “[there] was no question about [Bach's] competency.” She reported that Bach identified her living sons and her deceased son by name. Both Bing and attesting witness Patricia Gardiner testified under oath that on the occasions they met with Bach, she was mentally competent and of sound mind and memory to make a will. Bach outlined and confirmed her testamentary plan in their presence and the basis for her decision to leave the farm to April. It is axiomatic that a presumption of testamentary capacity is created when an attorney drafts a will and supervises its execution, particularly if the evidence submitted includes an affidavit by the subscribing witnesses stating that the testator was mentally acute (Matter of Nofal v. Nofal, 35 AD3d 1132, 1134 [3d Dept 2006]). The testimony of the attesting witnesses, Lamb’s testimony about his extensive contacts with his client prior to the will-signing and the affidavits of other persons who spent time with Bach in the months prior to that time are sufficient to establish a prima facie case that the will offered for probate was duly executed and that Bach, at the time of the will-signing, was competent to make a will and was not under any restraint (EPTL §3-2.1). The burden of raising a material issue of fact on this issue is therefore shifted to objectants (Zuckerman v. City of New York, 49 NY2d 557, 562 [1980]). UNDUE INFLUENCE New York’s common law on undue influence relies on two 19th century Court of Appeals decisions. Children’s Aid Society v. Loveridge, 70 NY 387, 394 (1877), is universally cited for its vivid evocation of the nature of undue influence: [it must amount] 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. It must not be the promptings of affection; the desire of gratifying the wishes of another; the ties of attachment arising from consanguinity, or the memory of kind acts and friendly offices, but a coercion produced by importunity, or by a silent, resistless power which the strong will often exercise over the weak and infirm, and which could not be resisted, so that the motive was tantamount to force or fear (citations omitted). The elements of undue influence and the relevant standard of proof were enumerated in Rollwagon v. Rollwagon, 63 NY 504, 519 [1876], which held that the objectant must demonstrate by a preponderance of the evidence that “the influencing party had a motive to influence, the opportunity to influence, and that such influence was actually exercised.” The nature of the proof offered for undue influence must show that the (1) testatrix was “actually constrained to act against [his or her] own free will and desire” and (2) affirmatively identify the “acts allegedly constituting the influence, as well as when and where such acts occurred” (Matter of Stafford, 111 AD3d 1216 at 1217 [3d Dept 2013], quoting Matter of Colverd, 52 AD3d 971 at 973 [3d Dept 2008]). EVIDENCE OF UNDUE INFLUENCE Objectants’ direct evidence of undue influence consists of the testimony of David and John and the medical record. Both objectants testified to increasingly fraught communications with April and their mother in the months before and after the execution of Bach’s May 2014 will. The conversations among decedent and her children recounted in testimony took place during the months of February-June 2018. In the initial stages of their family conversation on Bach’s testamentary plans, the contacts between April and her brother were cordial. April and David Bach spoke by telephone on February 8, 2018, two days after Bach first met with Lamb. April told David that their mother’s 1981 will was missing and that Bach suspected that she (April) had taken it. April was well-acquainted with the plan to leave the farm to her, but David was not: He reminded April that their mother owned the farm and could do with it what she liked. He urged April not to put pressure on their mother on this subject. Even after he saw the draft of the will, David remained upbeat about addressing their mother’s new testamentary plan: according to John, David believed he could talk to April and their mother and work out this “misunderstanding.” On April 20, 2014, Bach was invited to join John and his wife Maureen for Easter dinner. In John’s version of events, Bach brought the envelope containing the draft of her new will with her and reviewed it with John’s wife.2 The new will left the real estate to April, along with Bach’s vehicles. The other personal property, accounts and investments were designated for John and David in equal shares. At Maureen’s request, Bach left the draft will there so that copies could be made. Later, when John asked his mother about the changes to her will, complaining that she had chosen April over her brothers, Bach replied “leave a dying old lady alone!” John testified that this was how his mother responded to all of his inquiries about the will. She also accused him of wanting to sell the farm (“like I was some kind of traitor!”) and keep the money for himself. In his last visit to the property in the evening of April 22, 2014, John took Maureen to Bach’s home so she could help his mother prepare for bed, a task she undertook for the first and only time that night. During her conversations with Maureen, Bach reportedly told her that the draft will “made her sick” and that she was “never going to sign it.” Soon after, John decided he would not contact or visit his mother at home again. He felt he would be unable to resist asking her more questions about the new will and the disposition of the farm and wanted to avoid upsetting her. When David Bach visited his mother on April 24, 2014, she showed him a copy of the draft will. David read over the draft and asked his mother “is this what you want to do?” and she replied “no.” Bach told him that April and her attorney had drafted the will; she did not want to sign it and “it made her sick.” After talking to his mother, David went to talk to April while she was working in the family cemetery. She confirmed that the plan was for her to inherit the family farm. David went back into his mother’s home and told her “wow…[April] really does feel like she’s entitled to everything. And I said to my mother…please don’t do that, you know, please don’t have the vast majority of everything to April…just keep it the way it was, keep it equal.” He suggested that April could buy out her brothers’ interests, which he said his mother “understood.” His mother told him more than once that “she wanted it split equally, equal shares, that she agreed to.” He sensed that his mother was afraid of April. He testified that Bach asked him “do you think April will put me in a home if I do not [sign the new will]?” Bach telephoned David on May 3, 2014 (the day after her third meeting with Lamb). David recalled that he felt reassured, after the call, that his mother was going to split the farm in equal shares among her three children. But the following day — David’s birthday — he and Bach had a very different conversation, one that David characterized as “contentious.” For her part, it appears that Bach made a handwritten note of their conversation on her personal calendar, writing “Dave’s birthday he called April…It was hell!!” By the time that David visited the farm for Bub’s memorial service in June 2014, he felt that his mother was ignoring him: “something had changed on her end, and I’m not exactly sure what, but…she made it clear that, you know, she no longer wanted anything to do with me.” David made no further efforts to contact or visit his mother prior to her death in October. Asked to describe any changes in his mother he observed between his April and June, 2014 visits, David testified that his mother “was not herself, you know, capacity, I mean.” David felt that April had made disparaging remarks about him and John to their mother, because his mother told him that John was greedy and claimed that David would sell the family farm if he inherited it, both of which David denied. In addition to their testimony, objectants offer the following proofs of Bach’s vulnerability to and April’s exercise of undue influence: 1. Dr. Costley’s office records repeatedly refer to four (4) living children of Bach, even though her son James died in 1981. 2. References to “dementia” in the April 22, 2014 emergency room record and the April 23, 2014 hospital record. 3. A typographical error in the will offered for probate refers to the decedent’s address at “522 High Falls Road” instead of “552 High Falls Road” her actual address. 4. The propounded will is a marked departure from the 1981 will. 5. Lamb could not provide independent legal advice because he represented April’s husband in several real estate transactions in 2013. After Bach’s death, April retained Daniel Lamb to represent her in these proceedings. In 2016, April and her husband hired Lamb to prepare their wills. 6. April was in a “confidential relationship” with her mother. 7. April signed her mother’s checks. Bach’s medical records are offered by the objectants to establish her vulnerability to undue influence. All concerned agree that Bach was increasingly frail during the last year of her life. During her final months, she was dependent on oxygen. The only medical evidence of dementia in Bach is found in the April 22 and 23, 2014 notes made during Bach’s hospitalizations, which list “dementia” and “vascular dementia” among the patient’s “problems.” These diagnoses appear to date back to June 2013, but none of the medical professionals, family members or acquaintances who spent time with Bach report behavior or cognitive issues consistent with dementia.3 Bach’s regular physician, who saw her periodically throughout the years 2011-2014, including office visits before and after Bach signed her will, denied that she suffered from any cognitive deficit other than mild confusion associated with her final illness. She appears to have been unaware of the hospital notes referencing dementia: none of the records maintained by Costley’s office refer to dementia or other “mental difficulties.” Bach’s diagnosis of Alzheimer’s — listed without comment in her hospital records — does not, in and of itself, create a triable issue of fact as to her capacity (Matter of Bordell, 162 AD3d 1262 [3d Dept 2018]). As Dr. Costley notes in her affidavit, dementia is a progressive disease. If Costley had shared the opinion that Bach suffered from Alzheimer’s or another form of dementia, her condition would have been addressed in every doctor’s visit after June 2013, including, presumably, a prescription for any one of the drugs on the market designed to slow the progression of the disease (see, Matter of Giaquinto, 164 AD3d 1527,1532-1533 [3d Dept 2018] a triable issue of fact is created by diagnosis of “progressive dementia and memory loss” if accompanied by evidence of “progressively worsening mental condition…difficulties performing activities of daily living and communicating effectively in the weeks prior to the executing the will”) The decedent’s failure to notice an error in the number of her living children in her doctor’s records is not indicative of impaired cognition.4 Dr. Costley explained that the patient’s “medical history” was part of a template that automatically populated the exam notes for each visit, insuring that the error including James as a now-living child would be repeated from visit to visit. There is no evidence that Bach ever forgot that James had died in 1981, nor is there evidence that she ever read her doctor’s records. It’s easy to miss the typographical error in Bach’s will (“522″ instead of 552 High Falls Road”). April, who appears to be of sound mind and who we assume read the will many times over, did not notice the error until obectant’s attorney pointed it out to her. Diminished capacity is not proved when an 84 year old woman in poor health fails to take notice of a single transposed digit in a legal document. Ann Bach was by all accounts a strong-willed woman. She “knew her own mind.” But she was clearly pained by her sons’ alienation. So while Bach was “adamant” that April should inherit the farm, Bach freely shared her misgivings with April and David and others in her life. It is hard to find undue influence in Bach complaining to April about the draft will, declaring “I hate that damn thing.” Bach’s expressions of doubt about favoring April over her sons are not signs of undue influence: they are the product of a conflicted parent, torn between her desire to recognize and reward April’s work on the farm and her commitment to treat her children equally. Bach’s stated distaste for the draft of her will and her reluctance to even read it are testimony to her discomfort. All of the deponents recounted ugly scenes among the siblings and between Bach and her sons, but there is no testimony to a dark side to April’s relationship with her mother. There are no facts and circumstances from which April Richer’s undue influence can fairly and necessarily be inferred (Matter of Malone, 46 AD3d 975, 976 [3d Dept 2007], citation omitted). The requisite “acts allegedly constituting the influence, as well as when and where such acts occurred” are nowhere to be found (Matter of Colverd, 52 AD3d 971, 973 [3d Dept 2008], quoting Matter of Murray, 49 AD3d 1003, 1005-1006 [3d Dept 2008]). Also absent are the circumstances that New York courts have relied on to find undue influence, such as signs of domineering behavior on April’s part, as in In re Panek, 237 AD2d 82 [4th Dept 1997]; efforts to denigrate the objectants to Bach (In re Estate of Antoinette, 238 AD2d 762, 764 [3d Dept 1997]); or to isolate Bach from the objectants (Estate of Delyanis, 252 AD2d 585[2d Dept 1998]). April had no role in obtaining counsel, as in Matter of Neary, 44 AD3d 949 [2d Dept 2007], or conveying her mother’s wishes to the attorney-draftsman (Matter of Ford, 26 Misc 3d 1213(A)[Sur Ct Bx Cty 2010]), nor did her position of trust with her mother give rise to an inference of undue influence (Matter of Burke, 82 AD2d 260, 271 [2d Dept 1981]). Bach is heard from only once concerning her relationship with April. She asked David if he thought April “would send [Bach] to a nursing home if she didn’t leave the farm to her.” This statement, which would be barred at trial under the Dead Man’s Statute, is ambiguous in any case: Bach may have been asking her son if he believed April would retaliate by institutionalizing her, rather than trying to signal her own distress. The same is true of Bach’s remarks about her new will: she “hated” it, but she did not hesitate to sign the document when it was finalized to her satisfaction. Bach’s words are consistent with her profound ambivalence about a document that caused her sons to part ways with her. The fact that the terms of the proffered will depart from its 33-year old predecessor is not probative of undue influence. To the contrary, it is an accurate reflection of how the relations among the decedent and her children had changed since 1981. More to the point, Bach herself consistently expressed a clear, rational and informed basis for the change in her testamentary plan (Matter of Stafford, 111 AD3d 1216, 1219 N [3d Dept 2013; compare, In re Panek, 237 AD2d 82 [4th Dept 1997]). The Court of Appeals has found the absence of “discrete independent representation by disinterested counsel” to be “crucial” in insuring that a testamentary instrument is not the product of undue influence (Matter of Henderson, 80 NY 2d 388 [1992]). In Henderson, an attorney-beneficiary hired the attorney-draftsman and dictated the terms of the will to him. The attorney-draftsman never met or spoke to the testator until the will was executed. Even at the will-signing, the attorney-draftsman made only the basic EPTL §3-2.1(a)(2), (3) and (4) inquiries, making no effort to learn about the decedent’s family or her finances; the large bequest to the referring attorney went unquestioned. The facts before the Court bear no resemblance to the circumstances of Matter of Henderson. Attorney Lamb was brought in to assist with Bach’s estate-planning by John, not April. Lamb had a nodding acquaintance with Bach, but his only connection to April prior to February 2014 consisted of representing April’s husband in two unremarkable real estate deals. No conflict of interest was created by this earlier representation when Lamb took on Bach’s estate-planning. Lamb fully grasped the risk of a will contest arising from his work and took affirmative steps to assure himself that the will was the product of Bach’s own wishes, arrived at without interference or undue influence. He dedicated hours to discussing Bach’s plans with her, meeting with her four times over a period of as many months. He brought first his paralegal and then another attorney with him so that disinterested professionals could confirm his assessment of Bach’s capacity and her new testamentary plan. Lamb’s services to his client were unblemished by a conflict of interest. His commitment to Bach and to helping her carry out her plan is unquestioned. In Daniel N. Lamb, Jr., Bach was ably represented by skilled, independent and disinterested counsel at every stage of her representation. The Court has reviewed objectants’ other arguments and finds that they are without merit. As previously noted, Bach’s willingness to share her anguish over the will and the resulting estrangement of her sons supports conflicting inferences. A conclusion of undue influence cannot be drawn based on such evidence (see Matter of Turner, 56 AD3d 863, 866 [3d Dept 2008]; Matter of Nofal, 35 AD3d 1132, 1135-1136 [3d Dept 2006]). What remains if this evidence is put aside are mere speculation and conclusory allegations, without specificity as to precisely how, where and when the influence was actually exerted. These allegations are insufficient to raise an issue of fact (Matter of Ruhle, 173 AD3d 1389, 1391 [3d Dept 2019]; citing, Matter of Colverd, 52 AD3d at 973; Matter of Young, 289 AD2d 725, 726-727 [3d Dept 2001]). We find that proponent has established a prima facie case that the will offered for probate reflects the unfettered judgment of an independent woman. Objectants have not established the existence of a material issue of fact. ORDERED, ADJUDGED and DECREED, proponent having established a prima facie case for the probate of the last will and testament of Ann B. Bach, the motion for summary judgment is granted; ORDERED, ADJUDGED and DECREED, objectants have not offered evidence sufficient to create a material issue of fact and their objections are therefore dismissed; and ORDERED, ADJUDGED and DECREED, letters testamentary in the Estate of Ann R. Bach shall issue to April Richers, who shall serve without bond. This constitutes the decision of the Court. All papers, including this Decision, are hereby entered and filed with the Clerk of the Surrogate’s Court. Counsel is not relieved from the applicable provisions of CPLR Section 2220 relating to service and notice of entry. Dated: September 24, 2019
