Before the court is a motion for summary judgment by Sheldon Krause (“petitioner”) seeking to dismiss objections to the probate of an instrument dated December 28, 2017 purporting to be the Last Will and Testament of Shoshannah Chouake a/k/a Shoshannah Chouake Sarah, (“decedent”). The motion has been opposed by the decedent’s brother, Dr. Benjamin Chouake (“objectant”). The decedent died on February 26, 2018 at the age of sixty-one years, leaving the objectant as her sole distributee. Offered for probate in this proceeding is an attorney drafted instrument dated December 28, 2017. The Will makes a number of detailed specific bequests divided by asset class before dividing the residuary estate among decedent’s first cousins, her Rabbis, and the petitioner. It also, notably, provides as follows: I have intentionally made no provision in my Last Will and Testament for my brother, Benjamin Chouake, or his issue, for many reasons, including but not limited to, his unkind and destructive actions following my mother’s demise. Under no circumstances shall he or his issue inherit anything from my estate. The “unkind and destructive actions” apparently refer to the protracted estate litigation that erupted in this Court upon the death of decedent’s mother who passed away in 2012. Assertions of undue influence, conversion, and various contempt proceedings spanning the course of several years in their mother’s estate obviously did little to enhance the familial bonds between sister and brother. There is no dispute that the relationship between the decedent and objectant went from distant to non-existent by the time their mother’s estate was resolved. In fact, the objectant testified at his deposition in this matter that he “did not expect to inherit anything personally” from decedent’s estate. Notwithstanding this concession, he filed objections alleging that the offered instrument is invalid on the grounds that it was not duly executed, that the decedent was “not of sound mind or memory and was not mentally or physically capable” of making a will, and that the will was obtained by fraud and undue influence practiced upon the decedent by the petitioner, her “Attorney Confidant.” At the conclusion of discovery the petitioner moves for summary judgment dismissing the objections and admitting the instrument to probate. The objectant opposes the motion, contending that triable issues of fact exist rendering summary judgment inappropriate. Petitioner, as the movant, must establish prima facie entitlement to judgment as a matter of law in the first instance (see generally Zuckerman v. NY, 49 NY2d 557, 562 [1980]; see also e.g. Matter of Mooney, 74 AD3d 1073 [2d Dept 2010]; Matter of DiChiaro, 39 AD3d 751 [2d Dept 2007]). More specifically, the petitioner has the burden of demonstrating that the instrument offered for probate was duly executed in accordance with section 3-2.1 of the Estates Powers and Trusts Law (“EPTL”) and that the decedent possessed testamentary capacity at the time the instrument was executed (see e.g. Mooney, 74 AD3d at 1074; DiChiaro, 39 AD3d at 751). Once the requisite proof has been proffered by the movant, the objectant must assemble and lay bare affirmative proof that his claims are real and capable of being established at trial (see Stainless, Inc. v. Empls. Fire Ins., 69 AD2d 27 [1st Dept 1979] affd 49 NY2d 924 [1980]). Although the objectant is to be afforded every favorable inference that may be drawn from the evidentiary facts alleged (see e.g. Matter of Wimpfheimer, 8 Misc 3d 538 [Sur Ct, Bronx County 2005]), allegations must be specific, detailed, and substantiated by evidence. General conclusory and unsupported allegations are insufficient to defeat a motion for summary judgment (see Matter of Zirinsky, 10 Misc 3d 1052(A) [Sur Ct, Nassau County 2005] affd 101 AD3d 998 [2d Dept 2012]). With respect to the objections regarding due execution, petitioner has submitted a copy of the offered instrument which includes an attestation clause and a contemporaneous self-proving affidavit. This affords the instrument a presumption of compliance with the statutory formalities of EPTL 3-2.1 (see Matter of Sabatelli, 161 AD3d 872 [2d Dept 2018}; Matter of Mele, 113 AD3d 858 [2d Dept 2014]). Similarly, the execution of the instrument was attorney-supervised and therefore commands the application of a presumption of regularity and compliance (see Matter of Templeton, 116 AD3d 781 [2d Dept 2014]; Matter of Tuccio, 38 AD3d 791, 792 [2d Dept 2007]). Presumptions aside, petitioner also submits the transcripts of the 1404 examinations of the attorney draftsperson and the attesting witnesses to the instrument. The testimony, in toto, further buttresses the documentary evidence of compliance with the statutory formalities of EPTL 3-2.1. The foregoing demonstrates prima facie that the instrument offered for probate was duly executed (see EPTL 3-2.1; Matter of Selvaggio, 146 AD3d 891 [2d Dept 2017]); Matter of Malan, 56 AD3d 479 [2d Dept 2008]). Objectant’s opposition to due execution appears to rest entirely on the claim that the motion is not supported by admissible evidence, premised on the claim that the motion is unsupported by an affidavit, and that the transcripts of the depositions submitted by movant are unsigned copies. There is no merit to this argument. Although CPLR 3212 provides that a motion for summary judgment is to be supported by an affidavit, supporting proof, such as depositions and other documents of individuals with personal knowledge, may be placed before the Court by way of attorney’s affirmation as was done here (see Zuckerman v. NY, 49 NY2d 557, 563 [1980]). Further, submission of unexecuted deposition transcripts is likewise of no consequence as compliance with CPLR 3116 has been demonstrated, and notably, no claims have been made that the testimony contained in the copies is in any way inaccurate (see Zalot v. Zieba, 81 AD3d 935 [2d Dept 2011]; Zabari v. City of NY, 242 AD2d 15 [1st Dept 1998]). Aside from these technical remonstrations, the objectant has failed to raise any issues of fact concerning the execution of the proffered instrument. Accordingly, the Court finds the dictates of EPTL 3-2.1 have been complied with and the branch of the motion seeking to dismiss the objections of lack of due execution is granted. Turning to the objections based on lack of capacity, petitioner has the burden of demonstrating that the decedent, at the time of the execution of the offered instrument had testamentary capacity (see Matter of Kumstar, 66 NY2d 691 [1985]). Capacity is presumed to exist (see Matter of Smith, 180 AD 669, 673 [2d Dept 1917]) and the mental acuity required to execute a will is less than that of other legal documents, requiring only that the decedent generally understood the nature and consequences of executing a will; was aware of the nature and extent of her assets; and knew the natural objects of her bounty and her relations with them (see e.g. Matter of Anella, 88 AD3d 993, 995 [2d Dept 2011]; Matter of Coddington, 281 AD 143, 146 [3d Dept 1952]). Submission of the attestation clause and the contemporaneous self-proving affidavit — which expressly stated that the testator was of “sound mind, memory and understanding” — satisfies this initial burden (see Matter of Rottkamp, 95 AD3d 1338, 1339 [2d Dept 2012]). Again, in addition to the affidavits attached to the instrument, the petitioner submitted transcripts of the 1404 examinations which show that although the decedent was suffering through a debilitating physical illness at the time of the instrument’s execution, her mental acuity satisfied the above standard. In the words of one attesting witness, “she made herself clear and her wishes clear.” Similarly, another attesting witness stated: She was very sharp. She definitely reflected an opinion about how she wanted things to be handled. She gave me the impression that she was very much in control. Moreover, the decedent’s explicit and detail-laden written communications with the attorney drafter, which were provided as exhibits herein, further support petitioner’s position. In sum, petitioner has submitted ample evidence in satisfaction of his initial burden to demonstrate the decedent possessed testamentary capacity at the time the instrument was executed (see Matter of Curtis,130 AD3d 722, 723 [2d Dept 2015]; Matter of Vosilla, 121 AD3d 1489, 1491 [3d Dept 2012]). It was, therefore, incumbent on the objectant to submit admissible evidence to demonstrate the existence of a triable issue of fact in this regard (see Estate of Schlaeger, 2009 NYLJ Lexis 4475 [Sur Ct, NY County 2009]). At the outset, objectant points to a medical record, provided by the petitioner, that purportedly describes decedent as not being oriented to place or time on December 21, 2017, seven days prior to the date of execution. On physical review, the entry appears to be a typographical or formatting error. However, even viewing and construing this evidence in the manner asserted by objectant, whether the decedent was weak, ill, or even potentially disoriented at a moment one week prior to the critical day in question does not constitute sufficient relevant factual evidence contradicting petitioner’s prima facie proof of capacity (see generally Matter of Martinicio, 177 AD3d 882 [2d Dept 2019]; Matter of Hedges, 100 AD2d 586 [2d Dept 1986]; Matter of Waldron, 240 AD2d 507 [2d Dept 1997]). Further, objectant’s personal self-interested opinion that decedent had perhaps been genetically afflicted with “bipolar/schizophrenia” disorder, a concern that apparently did not exist at the time he entered into a binding agreement settling their mother’s estate, is no more probative on the issue of the decedent’s capacity than the opinion of any other individual, professional or otherwise, who had no personal contact with the decedent in the later years of her life, including the time in question (see e.g., Matter of Eshaghian, 54 AD3d 860 [2d Dept 2008]). This opinion, based upon objectant’s “observations” of his estranged sibling, is not rendered anymore compelling by the fact that objectant is a physician. In fact, it is less so, given that these conclusions are not supported by foundational evidence demonstrating his qualifications to render a reliable professional opinion on this issue (see Ozugowski v. City of NY, 90 AD3d 875 [2d Dept 2011]). Finally, objectant attaches a prescription for alprazolam, a commonly prescribed anti-anxiety medication better known as Xanax. However, the mere existence of a prescription for such medication is not sufficient evidence to raise an issue of fact with respect to capacity, especially in the absence of any supporting medical proof that decedent’s anxiety was so pervasive that it prohibited her from understanding and comprehending her assets, familial relations, and intentions with respect thereto (see e.g., Matter of Prevratil, 121 AD3d 137 [3d Dept 2014]; Matter of Boyd, 27 Misc 3d 1230(A) [Sur Ct, Dutchess County 2010]; Matter of Pantino, 2018 NY Misc Lexis 2199 [Sur Ct, Nassau County 2018]). Objectant in opposing this motion was obliged to “lay bare affirmative proof” (see Matter of Engelhardt, 34 Misc 3d 1232(A) [Sur Ct, Queens County 2010]). Based on the submissions, there is not a scintilla of evidence to suggest that decedent’s purported afflictions, or any medications she may have been taking, rendered her incompetent to execute the proffered document. Based on all of the foregoing, the branch of the motion for summary judgment dismissing the objection alleging lack of capacity is granted. The next branch of the motion seeks summary judgment dismissing the objection that the will is the product of undue influence. The burden of proof at trial to establish undue influence falls upon the party asserting its existence (see Matter of Walther, 6 NY2d 49 [1959]). The petitioner has made a prima facie showing of entitlement to judgment as a matter of law for dismissing this objection by submitting the 1404 testimony and the self-proving affidavit which demonstrated, prima facie, that the decedent understood the terms of the will when it was executed and that it was free of “constraint, duress, fraud or and undue influence” (see Matter of Rottkamp, 95 AD3d 1338, 1339 [2d Dept 2012]; Matter of DiDomenico, 101 AD3d 998, 1000 [2d Dept 2012]). Accordingly, in order for objectant to survive summary dismissal of his objection grounded upon undue influence, it is incumbent upon him to demonstrate that influence was actually exercised on the decedent and that it “amounted to 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. v. Loveridge, 70 NY 387, 394 [1877]). Circumstantial evidence may be proffered to sustain a claim of undue influence, but such indirect proof must be of a substantial nature (see Matter of Zirinsky, 43 AD3d 946 [2d Dept 2007]). Such evidence may include, among other factors, whether the propounded instrument deviated from the testator’s prior testamentary plan (see e.g., Estate of Michael Spataro, 2007 NY Misc LEXIS 1170 [Sur Ct, Suffolk County 2007]); whether a beneficiary of the will was involved with the drafting or procurement of the instrument (see e.g., Matter of Robbins, 2018 NY Misc Lexis 4675 [Sur Ct, Queens County 2018]); whether the alleged undue influencer occupied a position of trust and confidence (see Matter of Henderson, 80 NY2d 388 [1992]); and whether the testator was suffering from diminished capacity or otherwise susceptible to overreach (see generally Matter of Kubecka, 15 Misc 3d 1129(A) [Sur Ct, Suffolk County 2007]). In support of his undue influence claim, the objectant contends that decedent’s long-standing testamentary “plan” was for her estate to pass in intestacy to him or his issue. Decedent’s desire to die without a will was then allegedly thwarted by petitioner who nefariously gained testator’s trust, and, as her “attorney-confidant,” manipulated and “groomed” her into making the offered instrument. Given that intestacy would inure to the objectant’s immediate benefit as the sole distrubutee (EPTL 4-1.1), the conclusory argument that decedent’s prior “testamentary plan” was to solely benefit objectant by means of inaction, on these facts, transcends beyond self-serving and into the realm of fantasy, particularly given the undisputed evidence of their antagonistic relationship, which is a matter of record, both in this case and their prior litigation. Such a theory is also at odds with objectant’s admission that he “did not expect to inherit anything personally” from the decedent. In short, other than objectant’s assertion, there is no admissible evidence to establish decedent ever intended to benefit objectant financially upon her demise. Objectant’s next argument is that petitioner actively participated in the drafting process in such a way that the decedent did not receive “independent disinterested counsel.” On review, the record reveals that on multiple occasions the decedent beseeched petitioner to find an estate planning attorney with a connection to Israel. Petitioner did provide such a referral some two months later, which, in turn, the decedent rejected as too costly. Ultimately, decedent independently selected an attorney with whom petitioner had no knowledge or affiliation. The attorney drafter testified that the will was prepared pursuant to telephone conversations with the decedent and on the basis of a myriad of emails containing decedent’s lengthy directives. The undisputed evidence established it was decedent, who thereafter, drew the petitioner into the process, placing him in communication with the drafting attorney, including him on some of the emails that were exchanged, and, as was her practice, asking for him to opine on the drafter’s work product. Objecant failed to provide any evidence that the petitioner dictated any of the terms of the instrument or that the draftsperson took instructions from anyone other than the decedent (see Matter of Greenwald, 47 AD3d 1036 [3d Dept 2014] (determining that petitioner’s contact with the drafting attorney was solely as a “conduit to effectuate decedent’s desires”). The facts presented also do not give rise to an inference of undue influence as set forth in the seminal holding in Matter of Putnam, 257 NY 140 [1931] which requires an attorney draftsperson receiving a bequest to “explain the circumstances and show in the first instance that the gift was freely and willingly made,” since there is no evidence petitioner became the drafter of the document. Nor is there any other evidence to suggest that the decedent did not receive independent legal counsel (see Matter of Guidi, 259 AD 652 [1st Dept 1940]). The undisputed evidence is that the Will was prepared and its execution supervised by an attorney independently selected by decedent and with whom petitioner had no relationship. The instrument was prepared pursuant to decedent’s verbal and written instructions and was executed outside of petitioner’s presence when petitioner was in another state. It was procured and paid for solely by decedent who independently negotiated the price she was willing to pay. Finally, the Court has not overlooked the objectant’s continued reference to the petitioner as decedent’s “attorney confidant.” The term is plainly meant to invoke the higher burden of proof that is involved when the party that is accused of undue influence occupies a confidential relationship with the testator. An inference of undue influence can arise where a confidential relationship exists (see Ten Eyck v. Whitbeck, 156 NY 341 [1898]). Confidential relationships are distinguished by the unequal footing of the parties involved, with one party occupying a position of power or influence over a weaker or reliant party. It is often cited in situations such as doctor-patient, lawyer-client, guardian-ward, and principal-agent (see e.g., Matter of Feinberg, 37 Misc 3d 1206(A) [Sur Ct, Queens County 2012]). When a confidential relationship exists between the beneficiary and the testator, an inference of undue influence arises which requires the beneficiary to come forward with “clear proof of the integrity and fairness of the transaction, or any instrument thus obtained will be set aside…” (Ten Eyck at 353); Matter of DelGatto, 98 AD3d 975 [2d Dept 2012]). In this case, objectant correctly points out that petitioner is an attorney, and decedent’s attorney-in-fact. Such relationships can give rise to a confidential relationship where a power imbalance is present (see Matter of Petix, 15 Misc 3d 1140[A] [Sur Ct, Monroe County 2007]). However, in the first instance, the power of attorney was not utilized, and, apart from its existence is a non factor. Moreover, no other facts in the record give rise to the existence of a confidential relationship (see Matter of Prevratil, 121 AD3d 137 [3rd Dept 2014]; Will of Pearson, 2013 NYLJ LEXIS 3944 [Sur Ct, Kings County [2013]). Secondly, notwithstanding petitioner’s professional standing as an attorney, the voluminous record reflects that from the inception of their relationship it was the decedent who frequently imposed upon petitioner for gratuitous advice and direction, including policing the work product of the other legal practitioners and professionals that she formally hired and paid. In short, the facts presented by objectant do not establish a classic power-dependency scenario characteristic of a confidential relationship. Crucially, even if the Court were to assume that a confidential relationship did exist between decedent and petitioner, thereby obligating him to provide an explanation for the instrument as drawn, it is of no moment. Evidence of the circumstances surrounding the creation of the offered instrument, its rationality, its voluntariness, and its fairness, are legion in the record (see Matter of Del Gatto, 98 AD3d 975 [2d Dept 2012]). By way of example, and not by way of limitation, prior to meeting with the attorney draftsperson, decedent, in an email to her cousin wrote: Under NO CIRCUMSTANCES do I allow my brother, Ben Chouake to take any part of my inheritance. I completely forbid it and give you Denise Ast and Sheldon Krause permission to use my money to hire an excellent attorney so that it is ironclad impossible for Ben Chouake to take any part of my inheritance. In addition, the testimony of the attorney drafter and her consultation notes reflects that the instrument was not the product of the fulsome prodding of an opportunist, but instead was entirely of decedent’s own volition, and largely influenced and driven by the decedent’s undeniably toxic relationship with the objectant. The notes read in part: She said that her mother passed away a few years ago and she and her brother have been involved in an awful will contest. She feels that all of the aggravation and stress caused her to get sick and she wanted to have a will to make sure that he does not inherit any part of her estate. Then, there are the decedent’s demanded changes to the initial draft of her will to make her language of disinheritance stronger and to ensure objecant’s children were also excluded from inheriting: (K) Please include any hiers [sic] such as his children, grandchildren in case brother deceases. Please add a sentence or two to make the point stronger that under no circumstances and why. I realize you don’t think its necessary, but somehow I feel intuitively it must be there. Thank you. There is also a wealth of evidence to support decedent’s selection of the petitioner as one of several beneficiaries. Decedent’s appreciation and gratitude for the services and support petitioner provided to her during the course of the stressful litigation with the objectant and beyond is well documented in the record (see Matter of Guidi, 259 AD 652 [1st Dept 1940] aff’d, 284 NY 680 [1940]). The decedent considered the petitioner a trusted friend, a “guardian angel,” a “tzaddik” and thanked him on more than one occasion — albeit dramatically — for “saving her life.” The foregoing clearly establishes the decedent’s intention to disinherit her brother and his family, with whom she had no relationship. Contrary to objectant’s argument, the failure on the part of the drafting attorney to recount the precise reasons why testator chose to also disinherit objectant’s children does not create a triable issue. The decedent made her intention to exclude them clear, and her decision to do so was evidently freely made. On the other hand, objectant provides no evidence of even a distant relationship: proof of shared holidays; birthday celebrations; the exchange of letters or greeting cards; communication by phone or text; or companionship, care, or comfort to the decedent as she suffered through her last illness. Sadly, the objectant only learned of the testator’s death third-hand, being informed by an individual who observed it on a social media posting. The record, as a whole, and the circumstances surrounding the execution of the instrument are insufficient to present a question of fact for the jury when, as here, the evidence is entirely consistent with the assumption that the will expresses the decedent’s voluntary intent and contrary proof is non-existent (see Matter of Walther, 6 NY2d 49, 56 [1959]; Matter of Prevratil, 121 AD3d 137, 144 [3d Dept 2014]). Based on the foregoing, the branch of the motion seeking to dismiss the objections alleging undue influence is granted. The last branch of the motion seeks to dismiss the objections based upon fraud. The petitioner, by submission of the self-proving affidavit, as well as the 1404 examinations, has demonstrated prima facie that the offered instrument was not procured by fraud. To prevail on a claim of fraud, the objectant was required to demonstrate by clear and convincing evidence that knowingly false statements were made to the decedent that induced her to execute an instrument she would not have otherwise made (see In re Gross, 242 AD2d 333 [2d Dept 1996]). Objectant does not specifically address fraud in his opposition. Since the petitioner has established the absence of fraud, and the moving papers in opposition are bereft of any argument or evidence in support of this claim, the branch of the motion for summary judgment dismissing the objection to the validity of the offered instrument on the grounds of fraud is granted. Based upon the foregoing, the evidence submitted, and a review of the instrument offered for probate, the court finds the instrument was duly executed in conformity with the requirements for a will pursuant to EPTL 3-2.1 and that at the time of its execution, the decedent was in all respects competent to make a will and was not under influence or restraint. In short, objectant has completely failed to present any admissible evidence to question the instrument in any regard. In fact, while counsel for the objectant has striven mightily to create a concrete legal hypothesis, the unvarnished truth is that the objections are perilously close to being frivolous and designed to simply cause expense to the estate. However, in the absence of a request, the court will decline the opportunity to hold a hearing on its own initiative in this regard (22 NYCRR 130-1.2). Accordingly, the motion is granted, the objections are dismissed, and the instrument is admitted to probate. Letters testamentary shall issue to petitioner upon duly qualifying. This is the decision and order of the court. Settle decree. Dated: April 6, 2023
