Richard Hynes died on December 25, 2019, survived by his two children, Sean P. Hynes (hereinafter “Sean”) and Shannon Hynes-Hendricks (hereinafter “Shannon”). Sean petitioned for the probate of an instrument purporting to be his father’s last will and testament dated October 15, 2013. The typewritten instrument was drafted by an attorney licenced to practice law in the State of New York, and was purportedly executed by the decedent with the attorney draftsperson and another attorney as witnesses. Paragraph Second of said instrument specifically devises real property in Bellrose to Sean, and the residuary is then left to Sean and Shannon per stirpes and nominates them as co-executors. Shannon filed objections alleging lack of due execution; lack of testamentary capacity; “undue influence or fraud”; and forgery. After extensive discovery, substitution of counsel and numerous conferences, the parties were unable to resolve their differences and Sean now seeks summary judgment granting probate of the will and dismissal of all objections. The motion papers consist of his attorney’s affirmation, together with 27 exhibits which include, inter alia, the petition, the objections, the transcripts of the SCPA 1404 examinations of the two attesting witnesses, as well as a copy of the instrument offered for probate. Petitioner also filed a memorandum of law in support of the motion. Shannon cross-moved for an order to”…preserve the testimony of a non-party witness” and her papers in support of that cross-motion and in opposition to Sean’s motion for summary judgment consist of her attorney’s affirmation, 15 exhibits, and a memorandum of law. Sean thereafter filed a reply memorandum of law, his attorney’s reply affidavit, and exhibits numbered 28 through 40. Addressing first the cross-motion to preserve the testimony of a non-party witness, the Court was informed that the witness, Kenneth Hynes, is now deceased. Accordingly, the cross-motion to preserve his testimony is denied as moot. As to the motion itself, summary judgment may be granted only where it is clear that no triable issue of material fact exists (See: Alvarex v. Prospect Hosp., 68 NY2d 320; Phillips v. Joseph Kantor & Co., 31 NY2d 307). Although summary judgment must be exercised cautiously, it is proper in a contested probate proceeding where the proponent submits a prima facie case for probate and the objectant fails to raise any genuine factual issues (Matter of Minervini, 297 AD2d 423; Matter of Coniglio, 242 AD2d 901). Indeed, it is also clear that summary judgment may be granted even where such proceedings involve issues of a fact-sensitive nature, such as fraud and undue influence (see: Matter of Neuman, 14 AD3d 567; Matter of Goldberg, 180 AD2d 528). To defeat a motion for summary judgment, the opponent must assemble and lay bare affirmative proof to demonstrate the existence of a genuine triable issue of fact (Stainless, Inc. v. Employers Fire Ins. Co., 69 AD2d 27, aff’d 49 NY2d 924). Allegations must be specific and detailed, substantiated by evidence in the record; mere conclusory assertions will not suffice (Iselin & Co. v. Mann Judd Landau, 71 NY2d 420; Matter of Newman, supra). The papers submitted in support of and in opposition to the motion are scrutinized in a light most favorable to the party opposing the motion. If there is any doubt as to the existence of a triable issue of fact, then the motion must be denied (Robinson v. Strong Memorial Hosp., 98 AD2d 976). Regardless of the sufficiency of the papers in opposition, it is incumbent upon the movant in the first instance, to make a prima facie showing that he or she is entitled to summary judgment as a matter of law (CPLR 3213[b]; Zuckerman v. City of New York, 49 NY2d 557; Friends of Animals v. Associated Fur Mfrs., 46 NY2d 1065; Matter of Coniglio, supra; Matter of Parravani, 211 AD2d 965). With respect to due execution, the petitioner must show that: i) the decedent subscribed or signed at the end of the instrument, ii) the decedent signed in the presence of at least two attesting witnesses or acknowledged his signature to these witnesses, iii) the decedent declared to each of the attesting witnesses that the instrument is his will, and iv) there were two attesting witnesses who attested to the testator’s signature and, at the request of the testator, signed their names and affixed their signatures to the instrument (EPTL 3-2.1; see Matter of Walker, 124 AD3d 970; Matter of Halpern, 76 AD3d 429). Shannon alleges in her objections regarding due execution that the decedent did not publish the instrument as his will in the presence of the witnesses; that he did not request the said two witnesses to be witnesses thereto; and that the witnesses did not sign as witnesses in the presence of the testator or in the presence of each other. As the ceremony was supervised by an attorney, there is a presumption of regularity that the instrument was properly executed in all respects (See: Matter of Hadden, 188 AD3d 686; Matter of Tuccio, 38 AD3d 791). Additionally, where the attestation clause is full and the signatures genuine and the circumstances corroborative of due execution, there is a presumption that all the provisions of the statute were complied with, even where the witnesses are unable to recollect the execution or what took place at the time (In re Estate of Collins, 60 NY2d 466; Matter of Kellum, 52 NY 517; Matter of Green, 89 AD3d 941; and Matter of Finocchio, 270 AD2d 418). The purported will contains an attestation clause as follows: The foregoing instrument was signed, sealed, published and declared by RICHARD HYNES, the above-named Testator, to be his last will and testament in our presence, all being present at the same time, and we, at his request and in his presence and in the presence of each other, have subscribed our names as witnesses on the date above written. Additionally, the attesting witnesses signed a self-proving affidavit annexed to the instrument offered for probate, which provided as is pertinent that: “The foregoing last will and testament was sbuscribed in our presence and sight by RICHARD HYNES, the Testator named therein. The undersigned witnessed the execution of said will of RICHARD HYNES on the 15th day of October, 2013 at 79-37 MYRTLE AVENUE, GLENDALE, N.Y. At the time the instrument was so subscribed, the Testator declared said instrument to be his last will and testament. The undersigned thereupon signed their names as witnesses at the end of said will at the request of the Testator, in the presence of the Testator and each other…[E]ach of us was acquainted with the Testator, and we make this affidavit at his request. Said will was shown to us at the time this affidavit was made, and we examined it as to the signature of the Testator and our signatures…[S]aid will was executed by the Testator and witnessed by us under the supervision of [XX], an attorney-at-law admitted to practice in the State of New York, who stated that the formal requirements of the New York Estates, Powers and Trusts Law regarding the ceremony of execution and attestation of a will had been duly fulfilled and satisfied.” The supervising attorney testified at the SCPA 1404 examination that he had no specific recollection of the events on October 15, 2013 (Exhibit 16, pg. 65 In. 9) and explained his standard practice in executing wills. The second attesting witness, the other attorney present, testified that he also had no independent recollection of this specific will execution ceremony, and recounted the usual will execution procedures of the law office, all of which were in conformity with the attorney draftsperson’s testimony. They both reiterated that it is regular practice to have the second attorney witness come into the room after the testator signed the will in front of the attorney draftsperson (Exhibit 16, pg. 63 Ins. 6-25; Exhibit 17 pg. 11 Ins. 4-14). The second attorney would then ask the testator a series of questions before signing as a witness to the will (Exhibit 16, pgs. 64-65; Exhibit 17 pgs. 11-12). Based on the above, the petitioner has submitted sufficient proof to establish prima facie that the instrument was duly executed pursuant to EPTL 3-2.1 (see Matter of Halpern, supra). Petitioner having met his initial burden, it is incumbent upon the objectant to produce evidentiary proof in admissible form to raise a material issue of fact (Matter of Seelig, 302 AD2d 721). In opposition to this branch of the motion, Shannon contends that the portion of the affidavit of attesting witnesses “…all being present at the same time…and the presence of each other” is inconsistent with the testimony at the SCPA 1404 examination, thereby creating an issue of fact regarding whether the instrument was duly executed pursuant to EPTL 3-2.1. The SCPA 1404 testimony, however, does not conflict with the affidavit of the attesting witnesses or attestation clause since the testimony explicitly details that all three individuals were actually present at the execution ceremony. While they both testified they did not have a specific recollection of this event, both witnesses were consistent with each other both in the self proving affidavit and again in their SCPA 1404 testimony regarding how the document was signed and witnessed. While there may be a difference as to whether the will was specifically published, acknowledged and witnessed in the precise manner set forth in the attestation clause and affidavit (with both witnesses present at the beginning of the ceremony), or as set forth in the SCPA 1404 testimony (with the second witness subsequent to the attorney draftsperson), it is a difference without a distinction as the execution meets the statutory requirements in both instances (EPTL 3-2.1). As objectant has failed to submit any other evidence sufficient to raise an issue of fact that the instrument was, in fact, not properly executed, the branch of the motion seeking summary judgment dismissing the objection which alleges lack of due execution is granted. Shannon’s next objection is that the decedent lacked testamentary capacity. Petitioner has the burden of proving that the decedent possessed testamentary capacity, which requires that the testator: (1) understood the nature and consequences of executing a will; (2) knew the nature and extent of his property being disposed of; and (3) was aware of the natural objects of his bounty and his relation with them (Matter of Kumstar, 66 NY2d 691). The capacity to execute a valid will is minimal — lower than that required to execute most other legal documents or contracts (In re Coddington, 281 AD 143, aff’d 307 NY 181). The question of testamentary capacity concerns a person’s mental condition only 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 (In re Hedges, 100 AD2d 586). A testator needs only a lucid interval of capacity to execute a valid will, and this interval can occur contemporaneously with an ongoing diagnosis of mental illness, including depression (Matter of Esberg, 215 AD2d 655), progressive dementia, or even incompetency (see Matter of Walther, 6 NY2d 49; Matter of Friedman, 26 AD3d 723). Also, it has long been recognized that physical weakness is not necessarily inconsistent with testamentary capacity (Children’s Aid Soc. of NY v. Loveridge, 70 NY 387; Matter of Swain, 125 AD2d 574). The petitioner has made a prima facie showing that the decedent possessed testamentary capacity at the time of the instrument’s execution on October 15, 2013. This proof includes, inter alia, the SCPA 1404 transcripts of the attesting witnesses, the attestation clause, and the self-proving affidavit. In opposition thereto, objectant claims the decedent had dementia. In support of this allegation, Shannon attached sixteen pages of medical records from Albany Medical Center concerning decedent’s visit on July 5, 2013, three months prior to the instrument’s execution, after he suffered burns from a tractor accident (Exhibit D from objectant’s Exhibit 1).1 Shannon notes the initial hand-written intake by Dr. Emily Van Kouwenberg contains the following entry: “pt lives alone w some dementia.” Shannon’s exhibit also contained a document, titled “Consultation Note” from the same Dr. Van Kouwenberg with the following entry: “May require a VNA Services upon discharge if patient lives alone and has a mild dementia” This consultation note also contained a list of medications prescribed for the decedent at the time. None of the medications listed are used in the treatment of any memory, cognition or dementia-related behaviors, but rather are prescribed in the treatment of diabetes; hypertension; chronic pain; anxiety and panic disorder; and cholesterol. The medical records further indicate the decedent signed himself into the hospital and, two days later, signed himself out. The notes from discharge papers indicate that the decedent was “alert and oriented x 3″ and “totally independent.” Apart from this, no further medical documents, especially for any care that was required after the hospital visit, is presented. Additionally, although Shannon alleges that the decedent was treated by a neurologist from 2006 until 2019, she produced no evidence relating to said alleged treatment referencing a diagnosis or condition. Proof that a decedent suffered from dementia when a will was executed is not necessarily inconsistent with testamentary capacity and does not alone preclude a finding thereof (Matter of Friedman, supra). More significantly, the two notes by Dr. Van Kouwenberg of “some dementia” and “…if…has a mild dementia” do not even appear to be actual diagnoses of dementia, let alone a diagnosis of progressive dementia. In the same vein, Shannon incorrectly summarized her father’s testimony when she claims that her father could not recall visiting Mexico with his wife. In fact, decedent’s testimony, taken August 1, 2013 in a personal injury action, was as follows: Q: The place that you bought down in Florida, was this something that was purchased after her death? A: Yes. What happened, we had a timeshare, and we used to go to Puerto Vallarta for six to eight weeks, and my wife always paid before we left for next year, and when she paid for that year, she passed away. I would have had to lose $7,000.00 if I didn’t go because it was already paid for. So I went down there, and when I went down there, everybody kept asking me how my wife was, and I just sold the damn timeshare. I said, “let me get the hell out of there.” Every week it was somebody different. “Where is your wife?” And I got- I couldn’t take it. In fact, I think I left a couple weeks early. I gave two weeks away all inclusive. Shannon also listed a number of instances where the decedent “…displayed a lack of memory or recall and expressed confusion” in said deposition. For example, when asked if he remembered what hospital his wife was in, he answered “…I really — I’m not sure. I’ve had a couple of strokes, and I’ve lost a lot of my memory.” When asked if he remembers the name of the cleaning lady, he replied “I even forget her name. It’s been awhile. It’s been — she was Polish.” Yet, in the same deposition, decedent recalled the addresses of his real property, including his residence and other properties in Gilboa, New York and Lake Placid, Florida; he delineated his family tree including the names of his wife, his children, and his grandson’s name; recalled details about his wife’s assets and healthcare, including her pension, social security income and Medicare benefits; and accurately recalled his wife died from leukemia and that she was in North Shore Manhasset Hospital for twenty days before passing. The statements referred to by Shannon, even if uncontradicted, standing alone would not establish a lack of testamentary capacity on behalf of the decedent. The failure to remember the name of a cleaning lady or a medical facility at a deposition has no bearing on whether the decedent knew the natural objects of his bounty at the time the will was executed three months later. The natural object of the decedent’s bounty are those who have been the closest and nearest to him during his life, and from whom he has received the most attention and affection (Matter of Hurlbut, 48 AD 91), and whom decedent would be expected to wish to leave his property (Matter of Lawson, 75 AD2d 20). Clearly, as decedent’s children, both petitioner and objectant were the natural objects of the decedent’s bounty and decedent provided for both in his will. Shannon’s final contention on the issue of decedent’s capacity is that the testimony of the attorney who drafted and supervised the execution of the will in question “…revealed that the decedent may not have known the nature and extent of his property.” She argues that, as the attorney specifically recalled that the decedent owned two properties, the Bellerose property where he lived and the Bellerose property where Sean lived, and made no note with regard to the other four properties decedent owned at the time of the instrument’s drafting and execution, “…the Court cannot rule out the possibility that decedent did not understand the nature and extent of the property being disposed of.” Shannon’s use of the words “may” and “possibility” reveals that her leap of logic is purely speculative and, as such, is insufficient to defeat summary judgment especially in light of the evidence produced at the SCPA 1404 examinations (see: Harris v. Pitts, supra). Since the evidence submitted by the objectant fails to raise an issue of fact that decedent did not possess testamentary capacity at the time of the execution of the instrument, the branch of the motion for summary judgment dismissing such objection is granted. Shannon’s next objection is that the instrument offered for probate was “caused or procured by the….fraud of one or more persons acting in concert or privity with the Executor nominee and/or beneficiaries named in the Will.” An objectant seeking to establish that a will is the product of fraud has the burden of proving by clear and convincing evidence that the proponent of the will knowingly made false statements to the testator to induce him or her to make a will which disposed of property in a manner different from that in which the testator would otherwise have disposed of the property (see Matter of Eastman, 63 AD3d 738; Matter of Klingman, 60 AD3d 949; Matter of Zirinsky, 43 AD3d 946; Matter of Bianco, 195 AD2d 457). Fraud, therefore, requires the showing that a knowingly false statement was made. Proponent’s motion papers, including the transcripts of the SCPA 1404 examinations, the attestation clause, and the self-proving affidavit, set forth facts showing that proponent is entitled to summary judgment dismissing the objection alleging fraud. Neither Shannon’s objections nor papers in opposition to summary judgment have specified what representations were made to decedent, by whom they were made, and in what manner the alleged representations were erroneous. In her affidavit Shannon merely states that “Sean coerced and manipulated the Decedent into executing the Purported Will under which I am treated disproportionately.” Unsubstantiated and conclusory allegations are insufficient to raise a triable issue of fact on such grounds (Estate of Coniglio, supra). Accordingly, the branch of the motion to dismiss the objection raising the issue of fraud is granted. Turning next to the objection alleging that the signature on the instrument offered for probate is not that of the decedent, Shannon has the burden of proof of establishing forgery (Matter of Foranoce, NYLJ, Aug 7, 2000, at 25, col 6). Petitioner has submitted proof sufficient to establish prima facie that the instrument was indeed signed by the decedent on October 15, 2013. This proof includes, inter alia, the SCPA 1404 transcripts of the attesting witnesses, the attestation clause, and the self-proving affidavit. In opposition thereto, Shannon failed to submit any competent evidence that the signature on the will is a forgery. Additionally, where an objectant intends to offer proof that the instrument offered for probate has been forged by another, the proponent is entitled to particulars of the forgery, and where known, the name and address of the person or persons who forged the instrument (Matter of Herman, 289 AD2d 239). Here, Shannon has failed to provide any such particulars. Accordingly, the branch of petitioner’s motion for summary judgment dismissing the objection to the probate of the will on the basis of forgery is granted. Finally, turning to the objection claiming undue influence, petitioner’s motion papers, including the transcripts of the SCPA 1404 examinations, the attestation clause and the witness affidavits, set forth facts sufficient to make a prima facie showing that petitioner is entitled to summary judgment on the dismissal of this objection. As petitioner has established prima facie the absence of undue influence, it is the objectant who must establish evidence of undue influence (Matter of Bustanoby, 262 AD2d 407), including the elements of motive, opportunity, and the actual exercise of undue influence (Matter of Walther, supra; Matter of Vukich, 53 AD2d 1029). To prove undue influence, a respondent must demonstrate that the decedent “was actually constrained to act against [his] own free will and desire by identifying the motive, opportunity and acts allegedly constituting the influence, as well as when and where such acts occurred” (Matter of Murray, 49 AD3d 1003). Absent specificity as to times, dates and places, “[c]onclusory allegations and speculation” are insufficient to raise an issue of fact as to acts of undue influence (Matter of Young, 289 AD2d 725; see Matter of Malone, 46 AD3d 975). The person alleging same must show that the influence exercised amounted 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 (Children’s Aid Socy. of City of N.Y. v. Loveridge, supra). While undue influence may be proved by circumstantial evidence, this evidence must be of a substantial nature and mere conclusory assertions will not suffice (Matter of Walther, supra; Matter of O’Hara, 85 AD2d 669). Influence arising from gratitude, affection or esteem is not “undue influence” (Matter of Wharton, 270 AD 670). In this matter, objectant has utterly failed to present any evidence sufficient to raise a triable issue of fact on the issue of undue influence, as the record is devoid of facts tending to show how undue influence was actually utilized by petitioner in the drafting or execution of the instrument offered for probate (see Matter of Robbins, 61 Misc3d 1211[A]). The evidence shows petitioner was not in the room when the decedent advised counsel of how he wanted to dispose of his assets at death or involved in those conversations. In fact, it does not appear that petitioner was involved in the selection of the attorney who drafted the will; that petitioner was with the decedent when he went to the attorney’s office to review the will; that petitioner was in the attorney’s conference room when the instrument was executed; or that petitioner had any conversations with counsel regarding the contents of the will or with the decedent concerning same. Although Shannon claims that she is “treated disproportionately” by the 2013 will, a review of decedent’s prior 2011 instrument and the current 2013 document reveals that the decedent’s alleged 2011 testamentary scheme heavily and disproportionately favored Shannon, to the virtual exclusion of Sean and was prepared with her substantial input. The 2013 instrument is significantly more egalitarian in nature between his two children and apart from the devise, mirrors intestacy. Furthermore, the 2011 will nominated Shannon to act alone as executor, whereas in the 2013 will the decedent nominated both to act as co-executors. There is absolutely no evidence in the record of any specific instance showing that Sean exerted any undue influence over the decedent or that decedent’s actions and decisions were not voluntary. Accordingly, the branch of the motion to dismiss the objection of undue influence is granted. In her motion papers Shannon also appears to address Sean’s alleged lack of fitness to act as a fiduciary. Presumably this is because the petition requests letters testamentary issue only to Sean. However, Shannon failed to raise or file a specific objection to this relief. In any event, her submission fails to establish any ground delineated in SCPA §707 to deny Sean letters. In fact, given Shannon’s objections to the 2013 instrument and the obvious hostility existing between the parties, the Court finds it would be counterproductive and fruitless to appoint co-fiduciaries herein as mismanagement of the estate would be inevitable. Accordingly, the motion is granted, the objections are dismissed, and decedent’s will dated October 15, 2013 is admitted to probate. Letters shall issue to the petitioner upon his duly qualifying. This is the decision and order of the Court. Settle decree. Dated: February 21, 2023
