Before the Court is the motion for summary judgment of Helen Tsinopoulos (“Petitioner”) on her petition to probate the propounded will of her mother, Pat Tsinopoulos (the “Decedent”) and dismiss the objections to probate filed by Decendent’s son and Helen’s brother, John Tsinopoulos (the “Objectant”). The following papers were considered: 1. Notice of Motion for Summary Judgment, dated March 5, 2020; 2. Affirmation of William F. Smith, Esq., dated March 3, 2020/ Exhibits A-J; 3. Petitioner’s affidavit, sworn to on March 2, 2020/ Exhibit 1; 4. Affidavit of Dawn Guidice, sworn to March 5, 2020; 5. Affidavit of Tanya Markos, sworn to February 21, 2020; 6. Affidavit of David Vlahos, sworn to February 18, 2020; 7. Affidavit of Jean Zacharakis, sworn to February 14, 2020; 8. Affirmation in Opposition of Hayes Young, Esq., dated June 22, 2020 / Exhibits A-H; 9. Reply Affirmation of William F. Smith, Esq., dated July 1, 2020/ Exhibits 1-2. DECISION AND ORDER Background Decedent Pat Tsinopoulos passed away on June 24, 2015, survived by her daughter Helena (a/k/a/ Helena a/k/a Lena) (“Petitioner”) and her son John (“Objectant”). Petitioner claims that she discovered the propounded will (the “Will”) approximately one month after Decedent passed in a chest in their mother’s bedroom. The Will is a two page pre-printed form that contained blanks for a testator to fill in. The Will leaves almost Decedent’s entire estate to Petitioner, save for an $11,000 bequest to Objectant. It is undisputed that Decedent went by herself to the Key Bank in Pearl River, New York on December 7, 2009 and performed a will execution ceremony under the guidance of bank manager, Patricia Hughes. Ms. Hughes testified at her deposition that she did not remember this particular will execution due to the large number of will executions that she has supervised. Instead, she described the standard procedure that she used whenever a client asked to have the execution of a will witnessed. Ms. Hughes said that she confirmed that the person understood what the document was that they wished to sign. She also asked the person to provide ID to establish their identity. She said that she would not permit any document to be witnessed or notarized if it had any blanks that needed to be filled in. She said that she would ask other bank employees to act as witnesses. For wills, Ms. Hughes said that she would ask the testator in the presence of the witnesses if she/he understood that they were signing a will and if they had read the document. Ms. Hughes said that if the person answered her questions in the affirmative, then she would direct the testator to sign the will with the witnesses watching. Then the witnesses would sign the will and Ms. Hughes would notarize their signatures. The three attesting witnesses confirmed the salient points of Ms. Hughes’s description of her standard procedure. The three attesting witnesses all recognized their signatures on the Will, though none of them recalled this particular will execution ceremony. Ms. Hughes recognized her notary stamp and signature. Petitioner filed the petition to probate the Will on June 20, 2016. The original Will was included and the two pages of the Will were stapled together. Objectant filed his objections to probate on May 1, 2018, alleging the following bases for challenging the Will: (i) the failure to adhere to proper execution formalities of EPTL §3-2.1 (ii) lack of testamentary capacity and (iii) fraud and undue influence. After discovery per SCPA §1404, Petitioner filed for summary judgment on her petition to probate the Will. Objectant opposes the motion, arguing that material issues of fact remain unresolved. Objectant points out that the print and script handwriting on the first page of the two page Will appear to be of a different style than Decedent’s signature.1 Objectant suggests that the neater print handwriting could be his sister’s handwriting. He points out that Petitioner testified at her deposition that she thought the two pages of the Will were not stapled together when she found the Will in their mother’s home. He argues that his sister had the motive and opportunity to replace the original first page of the Will with the current first page so as to limit his share of the estate to $11,000. He concludes, therefore, that the different handwriting is a material disputed fact that prevents a grant of summary judgment on the probate petition. In her affidavit, Petitioner denies having any role in preparing the Will. She denies writing anything on the Will. At her deposition, Petition agreed that the neat handwriting on the Will did not belong to their Mother. Petitioner affirms that she provided the original document that she found in her mother’s bedroom to her attorney without making any changes or substitutions. DISCUSSION The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law by tendering sufficient admissible evidence to eliminate any material issues of fact from the case. See Sillman v. Twentieth Century-Fox Film Corp., 3 N.Y.2d 395 (1957). The movant bears the burden of proving entitlement to summary judgment, and the failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers. See Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851 (1985). Once sufficient proof has been offered, the burden then shifts to the opposing party who, in order to defeat the motion for summary judgment, must proffer evidence in admissible form that raises a triable issue of fact. See Zuckerman v. City of New York, 49 N.Y.2d 557 (1980). Will challenges tend to be very fact-specific, but the legal analysis is straightforward. First, the proponent of the will must introduce facts showing both due execution and the competency of the testator. Cf., 2 Harris N.Y. Estates 24:195. To defeat the motion, the Objectant must either (1) identify material facts that contradict the showing on due execution or competence; or (2) identify material facts that tend to show undue influence, fraud and/or coercion. Allegations must be specific and detailed, substantiated by evidence in the record; mere conclusory assertions will not suffice. See Iselin & Co. v. Mann Judd Landau, 71 N.Y.2d 420 (1988) (affirming grant of summary judgment); Matter of Neuman, 14 A.D.3d 567 (2d Dept. 2005) (reversing denial of summary judgment). Execution Formalities Proof of due execution requires a showing that the instrument was executed in substantial compliance with the requirements of EPTL §3-2.1. The proponent of the will must show that: (i) the testator signed at the end of the instrument; (ii) the testator either signed in the presence of at least two attesting witnesses or acknowledged his/her signature to them; (iii) the testator declared to each of the attesting witnesses that the instrument was his/her will; and (iv) the witnesses signed at the testator’s request. See Matter of Kellum, 52 N.Y. 517 (1873). The proponent of the will bears the burden of establishing due execution, see In re Stenger’s Will, 253 A.D. 282, 284 (2d Dept. 1938), but a presumption of due execution arises when the will is accompanied by an attestation clause. See Matter of Leach, 3 A.D.3d 763 (3d Dept. 2004); In re Natale, 158 A.D.3d 579, 579 (1st Dept. 2018) (quoting Matter of Cottrell, 95 N.Y. 329, 335 (1884)) (attestation clause is “entitled to great weight”). The presumption of due execution that results from a valid attestation clause is not affected by the witnesses’ inability to recall the execution. See Estate of Collins, 60 N.Y.2d 466 (1983); Matter of Shapiro, 121 A.D.3d 1454 (3d Dept. 2014). Petitioner annexed to her motion papers the relevant excerpts from the transcripts of the SCPA §1404 examinations of the three attesting witnesses and the bank manager/notary who supervised the execution. The bank manager described their typical will signing ceremony in detail, which ceremony substantially complied with the statutory requirements of EPTL §3-2.1. In addition, the Will included an attestation clause duly executed by the three witnesses, each of whom recognized their own signatures and corroborated Ms. Hughes’s description of a standard willing signing ceremony at the bank. Based on this evidence, Petitioner established her prima facie case of due execution. Once a petitioner establishes a prima facie case of due execution, the objectant must identify an infirmity to deny probate. See Matter of Rottkamp, 95 A.D.3d 1338, 1339 (2d Dept. 2012) (objectant failed to raise a triable issue of fact as to due execution); see also Matter of Selvaggio, 146 A.D.3d 891, 891 (2d Dept. 2017) (affirming grant of summary judgment when objectant “failed to submit proof in admissible form sufficient to raise a triable issue of fact as to whether the will was not duly executed”). Objectant identifies two facts that he believes could establish a lack due execution. First, he expounds at length on the handwriting discrepancies. While it is factually accurate that the handwriting on the Will appears to belong to more than one person, that simply is irrelevant to the issue of due execution. Objectant also questions whether the presumption of due execution that results from a valid attestation clause should attach in this case because the date in the testator’s signature block is crossed out and initialed. The signature block says “I subscribe my name to this Will this ___ day of ______, ___.” In the space preceding the word “day,” a handwritten date that appears to say “9/7/09″ is crossed out and the number “7″ is written above the cross out, with the initials “PT” next to the cross out. The words “Dec.” and “2009″ are printed in the other two blanks. No one disputes that the initials or the words are in Decedent’s handwriting. Objectant argues that the crossed out date raises an issue of fact about whether the attestation clause is incomplete or inaccurate, and therefore, argues that a presumption of due execution does not apply. He also points out that none of the witnesses recall the cross out. Whether or not the witnesses recalled the cross out is not significant, as “a mere failure of memory on the part of the witnesses shall not defeat a will, if the attestation clause and other circumstances are satisfactory to prove its execution.” Kellum, 52 N.Y. 517 at 519. As the Court of Appeals noted in Kellum, “the fact that the preparation and execution of wills was of common and almost daily occurrence in the office (the clerk testifying that he witnessed as many as fifty), it is not unnatural or improbable that these witnesses would forget the circumstances attending the execution of such a will, after so great a lapse of time.” Id. at 520. Here, the three witnesses and the bank supervisor all testified at their depositions that they participated in many will executions. They also testified that their process for will execution required observation of the testator signing the will. None of them had an independent memory of this will execution, which had taken place approximately ten years before their depositions. The fact that the date was crossed out in one place on the form and corrected by Decedent to match the date of the attestation is consistent with Decedent filling out that part incorrectly in the presence of the witnesses and then fixing her mistake. The cross out and correction of the date in the signature block, without other facts tending to disprove due execution, does not defeat the presumption raised by the valid attestation clause. Therefore, the cross out does not raise a material issue of fact such that the prima facie showing of due execution is overcome, and this objection is dismissed. Testamentary Capacity The proponent of a will bears the burden of proving that at the time of execution, decedent understood three things in a general way: (i) the nature and extent of his/her property; (ii) the natural objects of his/her bounty; and (iii) the provisions of the instrument. See Matter of Kumstar, 66 N.Y.2d 691 (1985). A testator enjoys a presumption of sanity and mental capacity. See Matter of Coddington, 281 A.D. 143 (3d Dept. 1952), aff’d 307 NY 181 (1954). Further, the capacity to execute a valid will is minimal, and lower than that required to execute most other legal documents or contracts. See id. Despite having raised the objection as to testamentary capacity, Objectant testified at his deposition that his mother was of sound mind. He offered no evidence to support the objection. Therefore, this objection is dismissed. Undue Influence To prevent probate of a will based on a claim of undue influence, an objectant must demonstrate, by a preponderance of evidence, a motive, opportunity and the actual exercise of influence so strong as to subvert the mind of the testator at the time of execution to the extent that, but for the “undue” influence, the testator would not have executed the instrument. See Matter of Fiumara, 47 N.Y.2d 845 (1979). An objectant must establish that the influence exerted “amounted to a moral coercion” which “constrained the testator to do that which was against his free will and desire.” Matter of Walther, 6 N.Y.2d 49, 53 (1959) (quoting Children’s Aid Soc. v. Loveridge, 70 N.Y. 387, 394 (1877) (internal quotations omitted)). At his deposition, Objectant denied that his sister could have convinced their mother to do something that she did not want to do. Therefore, by his own admission, Objectant has undercut a crucial element of his claim of undue influence. Lacking any evidence in support of this objection, it is dismissed. Fraud Although raised as in his objections to probate, in his opposition to summary judgment, Objectant does not argue that a fraud was committed in advance of the execution of the will, such that his mother was induced to sign the will under false pretenses. See Matter of Capuano, 93 A.D.3d 666 (2d Dept. 2012). Instead, he argues a new objection to probate: that the propounded instrument itself is a fraud. He does not quite explicitly accuse his sister of substituting a different first page of the Will, but he points out that she had the motive and opportunity to do so. His basis for this suggestion is that the handwriting on the first page was not his mother’s. He speculates that the handwriting could be his sister’s. While substituting a page of the Will would certainly be a massive fraud, Objectant provides no evidence in support of this suggestion other than his speculation. See Estate of Menchini, 2019 NYLJ LEXIS 878, NYLJ, Mar. 25, 2019 at p.26, col.5 (Surr. Ct. N.Y. Co. 2019) (granting summary judgment despite objectant’s claim of that there may have been a substituted page two of the instrument because no basis other than surmise and speculation); Estate of Owens, 2018 NYLJ LEXIS 3583, NYLJ, Oct. 31, 2018 at p.27, col.4 (Surr. Ct. N.Y. Co. 2018) (granting summary judgment dismissing objections to probate, including allegation that signature of decedent was a forgery, for lack of any evidence to support forgery theory). On the other hand, Petitioner denies writing on or altering the will in her sworn testimony. Petitioner testified at her deposition that she had no role in the preparation of her mother’s will. In her petition to probate the will, she affirms that this is the original instrument that she discovered in her mother’s home. The handwriting that Objectant finds so distinct is present on both pages of the will. Is it possible that his sister wrote, or had someone else write, two different first pages for the will, and sent their mother to the bank with one version, but then swapped it out for an alternate first page that benefitted the sister at the brother’s expense? There simply is no evidence to support this theory. Objectant’s speculation alone is not sufficient to raise an issue of material fact as to the legitimacy of the instrument. Therefore, the newly raised objection that the instrument is itself a fraud is dismissed. Finally, the Court notes that the issues raised by the use of a preprinted form will and supervision of execution by a non-lawyer should give potential users of these forms reason to pause. See Estate of Bochner, 119 Misc.2d 937 (Surr. Ct. Bx. Co. 1983) (noting that, “despite the simplicity of the form she utilized,” testator’s mistakes in filling it out “approached the brink of having her testamentary scheme fail due to statutory insufficiency.”). Many, if not all, of Objectant’s concerns would have been avoided had Decedent engaged an attorney to prepare her will and supervise its execution. Conclusion Based upon the foregoing, the Petitioner’s motion for summary judgment is granted in its entirety. The Court finds that the Will was duly executed, that Decedent possessed the requisite testamentary capacity at the time of execution, that she was not constrained by the exercise of any undue influence, duress, coercion or fraud, and that she executed the Will of her own free will and desire. The Court finds that there is no evidence that Petitioner has provided the Court with a fraudulent version of the instrument. Thus, the clerk is respectfully directed to prepare a decree admitting the Will to probate and to issue permanent letters testamentary to Petitioner. Dated: July 17, 2020
