Papers Considered: 1) Respondent’s Notice of Motion for Summary Judgment, dated April 22, 2021; 2) Affidavit of Donna Savino in Support of Respondent’s Motion, dated March 22, 2021; 3) Affidavit of Debra Groh, Esq. in Support of Respondent’s Motion, dated January 14, 2021, with exhibits; 4) Affirmation of Brian M. Quinn, Esq. in Support of Respondent’s Motion, dated April 22, 2021, with exhibits; 5) Memorandum of Law in Support of Respondent’s Motion for Summary Judgment, dated April 22, 2021; 6) Affirmation of Richard D. Cirincione, Esq. in Opposition to Respondent’s Motion for Summary Judgement, dated May 27, 2021; 7) Memorandum of Law in Opposition to Respondent’s Motion for Summary Judgment, dated May 27, 2021; 8) Affidavit of Laura Wieland in Opposition to Respondent’s Motion, dated May 26, 2021; 9) Affidavit of Annette Knipe in Opposition to Respondent’s Motion, dated May 25, 2021; 10) Affidavit of Brent Knipe in Opposition to Respondent’s Motion, dated May 26, 2021; 11) Affidavit of Chantil Knipe in Opposition to Respondent’s Motion, dated May 26, 2021; 12) Affidavit of Holly Knipe in Opposition to Respondent’s Motion, dated May 24, 2021; 13) Affidavit of Janice Myers in Opposition to Respondent’s Motion, dated May 20, 2021; 14) Affidavit of Nancy Barrera in Opposition to Respondent’s Motion, dated May 26, 2021; 15) Affidavit of Steven Knipe in Opposition to Respondent’s Motion, dated May 25, 2021; 16) Affidavit of Sybille Gramer in Opposition to Respondent’s Motion, dated May 24, 2021; 17) Reply Affirmation of Brian M. Quinn, Esq. in Further Support of Respondent’s Motion for Summary Judgment, dated June 2, 2021; Pending before the Court is respondent Donna Savino’s motion for summary judgment to dismiss the petition seeking a determination that the second and third amendments to the Kosmo Family Trust (hereinafter trust) are void due to decedent’s lack of requisite mental capacity, or due to the exercise of undue influence or fraud by respondent upon Janet D. Kosmo (hereinafter decedent).1 In the alternative, the petition requests an order imposing a constructive trust on the remainder of the trust as a result of the respondent’s confidential relationship with decedent and her alleged misrepresentations to decedent. Respondent denies the allegations and now moves for summary judgment arguing that there is no proof of decedent’s lack of capacity or proof of fraud or undue influence, that petitioners lack standing and capacity to challenge the trust amendments, and that the claims asserted by petitioners are barred by the statute of limitations. Petitioners oppose the motion. By way of background, decedent died in December 2017, a resident of Orange County, California. She was survived by two of her three children, Laura E. Knipe Wieland and Richard X. Knipe. Her third child, Claudia Knipe, had Down Syndrome and resided in a group home in New York until her death in 2006. Decedent was also survived by two adult grandsons, Brent Knipe and Steven Knipe (hereinafter petitioners). Respondent, a resident of Albany County, came to know decedent due to her employment for a time in the group home in which Claudia resided. In 1994, decedent and her spouse, Joseph Kosmo (hereinafter Kosmo), created the Kosmo Family Trust, naming themselves as the trustees of the trust upon its creation. Under the 1994 trust, after the death of Kosmo and decedent, the trust was to be split in two shares and decedent’s share was to be distributed in general bequests to decedent’s family, with the remainder to Laura Knipe Wieland. In 2008, decedent and Kosmo executed the Amendment and Restatement of the Kosmo Family Trust dated August 25, 2008. Pursuant to the terms of the 2008 trust, after the death of Kosmo and decedent, decedent’s one-half share would be distributed 90 percent to Richard X. Knipe and 10 percent to decedent’s nephew, Charles Wendel. Kosmo died a resident of California in January 2013, predeceasing decedent. Thereafter, decedent executed three amendments to the trust, in 2013 (first amendment), 2015 (second amendment) and 2016 (third amendment). Pursuant to the first amendment, the residue of decedent’s share was left in equal shares to decedent’s grandchildren, petitioners Steven Knipe and Brent Knipe, after a $25,000 gift to respondent and a $25,000 gift to decedent’s friends, Jens and Sybille Gramer. The second amendment retained the cash gift of $25,000 to decedent’s friends and left the remainder of decedent’s share to respondent. Finally, the third amendment removed the bequest to decedent’s friends, and left decedent’s entire share to respondent. The trust contains a choice of law provision, which provides that California law shall apply to the validity of the trust and the construction of its beneficial provisions, regardless of any change in the residence of the trustee. In March 2018, Laura Knipe Wieland commenced a proceeding to invalidate the first, second and third amendments to the 2008 trust alleging that respondent exercised undue influence over decedent which resulted in decedent executing the amendments to the 2008 trust, ultimately removing her family and friends as beneficiaries and leaving the entirety of the trust assets to respondent. Respondent answered the petition, raising several affirmative defenses including inconvenient forum, and contemporaneously moved to dismiss the petition pursuant to CPLR 327. By decision and order of this Court dated May 29, 2018, respondent’s motion to dismiss for inconvenient forum was denied.2 Petitioners brought the current proceeding by petition dated December 6, 2018, now seeking to invalidate only the second and third amendments to the 2008 trust. Respondent’s summary judgment motion has been submitted for decision. DISCUSSION On a motion for summary judgment, the proponent bears the initial burden of making “a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact” (Alvarez v. Prospect Hosp., 68 NY2d 320, 324 [1986]). “Once such a showing has been made, the burden shifts to the party opposing the motion to produce admissible evidence sufficient to establish the existence of material issues of fact which require a trial” (Matter of Panebianco, 50 Misc 3d 1203[A], 2015 NY Slip Op 51903[U], *9 [Sur Ct, Westchester County 2015]; see Zuckerman v. City of New York, 49 NY2d 557, 562 [1980]). Standing & Capacity To determine whether petitioners have the legal authority to challenge the second and third amendments to the 2008 amended and restated trust, it must be found by the Court that petitioners have both legal capacity and standing to bring this proceeding. Capacity and standing are related, but distinguishable, legal concepts. Capacity is a threshold matter that seeks to determine whether “the legislature invested [petitioners] with authority to seek relief in court,” whereas standing relates to “whether a party has suffered an injury in fact conferring a concrete interest in prosecuting the action” (Matter of World Trade Ctr. Lower Manhattan Disaster Site Litig., 30 NY3d 377, 384 [2017] [internal quotation marks omitted]; see also Community Bd. 7 of Borough of Manhattan v. Schaffer, 84 NY2d 148, 155 [1994]; Socy. of Plastics Indus. v. County of Suffolk, 77 NY2d 761, 772-773 [1991]). The choice of law provisions in Article VIII (E) and (F) of the Declaration of Trust dated July 18, 1994, as well as the restated trust and amendments, contain a choice of law provision which states that “[t]he validity of this trust and the construction of its beneficial provisions shall be covered by the laws of the State of California in force on the date of execution of this instrument.” A choice of law provision such as this one operates to apply California law to substantive issues; however, procedural matters are left to the forum state (see Tanges v. Heidelberg N. Am., Inc., 93 NY2d 48, 54 [1999]; Kilberg v. Northeast Airlines Inc., 9 NY2d 34, 41 [1961]). In determining whether an issue is substantive or procedural, the law of the forum applies (see Tanges, 93 NY2d at 54; see also Nestor v. Putney Twombly Hall & Hirson, LLP, 153 AD3d 840, 842 [2d Dept 2017], lv denied, 30 NY3d 907 [2017]). Legal Capacity to Sue Under New York law, capacity is a substantive issue to be determined by California law (see World Trade Ctr., 30 NY3d at 384). Respondent argues that petitioners lack capacity to bring this proceeding, citing Cal Prob Code §17200 (a). Cal Prob Code §17200 (a) provides that “a trustee or beneficiary of a trust may petition the court…concerning the internal affairs of the trust or to determine the existence of the trust.” The Supreme Court of California has recently interpreted Cal Prob Code §17200 (a) to include not only present beneficiaries or trustees of a trust, but also a person who “claims to be a rightful beneficiary of a trust if challenged amendments are deemed invalid” (Barefoot v. Jennings, (8 Cal 5th 822, 828, 257 Cal Rptr 3d 629 [2020]). The Court also held that “[c]laims that trust provisions or amendments are the product of incompetence, undue influence, or fraud…should be decided by the probate court, if the invalidity of those provisions or amendments would render the challenger a beneficiary of the trust” (id.) In Barefoot, the settlor’s daughter filed a petition to challenge the validity of trust amendments and restatements based on undue influence, fraud and capacity, which specifically eliminated her share of the trust, expressly disinherited her and removed her as a successor trustee. The Court of Appeal of California agreed with the lower court in dismissing the petition, holding that only a current named beneficiary had standing to petition the court (Barefoot v. Jennings, 27 Cal App 5th 1, 6, 237 Cal Rptr 3d 750, 753 [2018]). It further concluded because plaintiff was no longer a named beneficiary, she lacked standing to challenge the validity of the amendment that eliminated her interest (Barefoot, 27 Cal App 5th at 6). Supreme Court of California reversed and remanded, holding that if the daughter’s allegations are true, she has a present or future interest rendering her a beneficiary under Cal Prob Code §24, who is permitted to contest the trust amendments under Cal Prob Code §17200 (see Barefoot v. Jennings, 8 Cal 5th 822, 827). The Court stated that “[t]o hold other than we do today would be to insulate those persons who improperly manipulate a trust settlor to benefit themselves” (id. at 829). In the present case, the first amendment to the trust provided for two general bequests in the amount of $25,000, with the remainder of the trust to be paid outright to petitioners (decedent’s grandsons) in equal shares. The second and third amendments disinherit petitioners entirely and name respondent as the remainder beneficiary. As beneficiaries of the trust as first amended, petitioners have the requisite capacity to bring this proceeding challenging the second and third amendments to the trust under Cal Prob Code §17200. Standing Whether petitioner has the legal authority to bring this proceeding also requires a determination that petitioners have standing. Under conflicts of law principles, standing “goes to the jurisdiction of the court” and is a procedural matter to be determined by New York law (see World Trade Ctr., 30 NY3d at 384, quoting City of NY v. State, 86 NY2d 286, 292 [1995]). To Establish standing, New York courts require that a “litigant have something truly at stake in a genuine controversy” (Saratoga County Chamber of Commerce, Inc. v. Pataki, 100 NY2d 801, 812 [2003]; see also Socy. of Plastics Indus., 77 NY2d at 772). To determine whether petitioners have standing to contest the second and third amendments to the trust, they must have an interest in the proceeding. Under New York’s Surrogate’s Court Procedure Act, a “person interested” includes “[a]ny person entitled or allegedly entitled to share as a beneficiary in the estate” (SCPA 103 [39]). The definition of “estate” under SCPA 103 (19) includes the property of a trust (see Matter of Stephen Dehimer Irrevocable Trust, 52 Misc 3d 1203[A] [Sur Ct, Oneida County 2016], affd 155 AD3d 1600 [4th Dept 2017]). The beneficiaries of a trust are defined as “the persons or classes of persons, or the successors in interest of persons…upon whom the settlor manifested an intention to confer beneficial interests (vested or contingent) under the trust,…[including] persons who have succeeded to interests of beneficiaries by assignment, inheritance or otherwise” (Matter of Wells Fargo Bank, 2018 NY Slip Op 31883[U] [Sup Ct, NY County 2018], citing Restatement [Third] of Trusts §48, Comment a]). Here, petitioners are remainder beneficiaries of the first amended trust, which gives them a pecuniary interest in the outcome of this contested litigation. If successful, they would each be entitled to half of the decedent’s trust residue and, therefore, have standing to bring this proceeding. The Court determines that petitioners have legal capacity and standing in this proceeding. Respondent’s motion, to the extent it requests dismissal on such basis, is denied. Statute of Limitations Respondent contends that the statute of limitations to contest the trust amendments has expired and the petition should be dismissed. Under conflict of law principles, statutes of limitations are procedural matters to be determined by the law of the forum because they are considered “as pertaining to the remedy rather than the right” (Portfolio Recovery Assoc., LLC v. King, 14 NY3d 410, 416 [210], quoting Tanges, 93 NY2d at 54-55). In New York, the statute of limitations to challenge a revocable trust on the basis of undue influence and fraud is six years from the date of the settlor’s death (see Tilimbo v. Posimato, 20 Misc 3d 1116[A], 2008 NY Slip Op 51366[U] [Sur Ct, Bronx County 2008]; CPLR 213). Decedent died on December 1, 2017 and petitioners brought this action to challenge the trust in December 2018. Thus, under the application of New York law petitioners’ claims are well within the six-year statutory period and not barred under CPLR 213. Respondent argues that even if the statute of limitation were to be determined under New York law, the Court must apply the shorter of the two time periods provided under New York and California law pursuant to CPLR 202. CPLR 202 states that, “[a]n action based upon a cause of action accruing without the state cannot be commenced after the expiration of the time limited by the laws of either the state or the place without the state where the cause of action accrued” (CPLR 202). Thus, when a nonresident petitioner brings a claim based on a cause of action accruing outside of New York, CPLR 202 requires application of the statute of limitations applicable in the state where the cause of action accrued, if such statutory period is shorter than that applicable in New York (see CPLR 202). Respondent argues that because petitioners are residents of California and the cause of action accrued in California, the limitations period under California law should control, if shorter than that of New York, pursuant to CPLR 202. Respondent contends that the applicable statutory period controlling this matter is 120 days under Cal Prob Code §§16061.7 and 16061.8. These sections provide, in relevant part, that a trustee shall serve a notification on the beneficiaries of the trust or the heirs of the deceased settlor when a revocable trust becomes irrevocable and that petitioners must make a claim within 120 days of such notice. Respondent has provided no evidence of service of this notice upon petitioners, and therefore they are not bound by the 120-day period. Under California law, actions for relief on the ground of fraud or mistake are governed by a three-year statute of limitations established under Cal Civ Proc Code §338 (d). While not explicitly stated in the statute, actions for relief on the ground of undue influence are also subject to the three-year limitations period (see Triplett v. Williams, 269 Cal App 2d 135, 137, 74 Cal Rptr 594, 595 [1969]; Gross v. Needham, 184 Cal App 2d 446, 454 [1960]).3 In Triplett the plaintiff’s cause of action seeking relief for trust property wrongly obtained by means of undue influence exercised by defendant was governed by the three-year statutory period under Cal Civ Proc Code §338 (d) (see Triplett, 269 Cal App 2d at 137). In Gross, the plaintiff’s cause of action seeking relief to invalidate the conveyance of property held in decedent’s estate on grounds of fraud, duress, and undue influence was subject to the three-year limitations period in Cal Civ Proc Code §338 (d) (see Gross, 184 Cal App 2d at 454). A cause of action for fraud or undue influence under California law does not accrue until the aggrieved party discovers, or should discover, the existence of the cause of action. This is to protect aggrieved parties who, with justification, are ignorant of their right to sue (see Seelenfreund v. Terminix of Northern Cal Inc., 84 Cal App 3d 133, 136, 148 Cal Rptr 307, 309 [1978]; Cal Civ Proc Code §338 [d]). Thus, the statutory period commences at the time of the discovery of the fraud or from such time as it could have been discovered had the injured party exercised reasonable diligence, and the statutory period expires three (or possibly four) years from that date of discovery (see Rubinstein v. Minchin, 46 Cal App 2d 115, 119, 115 P2d 537, 538 [1941]; Twining v. Thompson, 68 Cal App 2d 104, 112, 156 P2d 29, 34 [1945]). There is no evidence demonstrating that petitioners were provided notice of the second or third amendment, or that petitioners were made aware of facts that reasonably permitted discovery that decedent had amended the trust to completely disinherit petitioners prior to her death. By petitioner Brent Knipe’s own account, decedent first told him that he was in decedent’s estate plan on Memorial Day 2016 (Affidavit of Brent Knipe,
