In this proceeding, the decedent’s great-nephew, Declan Lyons (Declan), seeks to vacate a probate decree admitting the decedent’s last will and testament to probate. The decedent, a Roman Catholic priest for almost 70 years, died testate on May 5, 1989. His will, dated December 28, 1981, disposes of the decedent’s entire estate to a charity, The Society for the Propagation of the Faith (“Society”). The will was initially offered for probate in 1993 by the nominated executor in the will, Reverend Francis J. Seeger. Ultimately however, the proceeding was withdrawn as Reverend Seeger was unable to obtain jurisdiction. There was no attempt to probate the will again until Declan, the executor of the decedent’s post-deceased sole distributee niece, Mary Cunningham Lyons, notified Society of the will and the existence of unclaimed funds in possession of the New York State Comptroller. A second probate proceeding was then commenced in 2016 by Society and once jurisdiction was obtained, Declan filed objections and requested SCPA §1404 examinations. At the conclusion of the 1404 examinations, neither the Public Administrator of Queens County nor the Guardian Ad Litem filed objections. Instead, both consented to the probate of the instrument. Society then moved pursuant to CPLR §3212 to dismiss Declan’s objections and admit the will to probate. Declan did not file opposition to the motion for summary judgment. In support of the motion, Society had attached the transcript of the 1404 examination of the attorney draftsperson and the other attesting witness, as well as a copy of the instrument offered for probate, which contains an attestation clause and contemporaneous self-proving affidavit availing the instrument of 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]). Proof that the execution of the instrument was attorney-supervised also permitted 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]). Accordingly, by decision dated June 29, 2021, the motion for summary judgment was granted, the objections were dismissed and the will was admitted to probate. A decree was issued by the Court on December 20, 2021. Subsequently, in October of 2022, Declan filed a petition and a motion requesting a vacatur of the decree on the grounds of excusable default, fraud and misrepresentation, and newly discovered evidence purportedly showing that the decedent’s will was the product of undue influence, pursuant to CPLR §5015(a)(1-3). In opposition, Society filed a verified answer to the petition and a cross-motion for summary judgment. Thereafter, Declan attempted to amend his petition by submitting an affidavit which is procedurally improper (CPLR §3025). In any event, the document consisted of puzzling, conspiratorial arguments which do not address the underlying legal argument for the relief demanded. In deciding whether to vacate a decree, the Court must first consider whether the petitioner has established an excusable default pursuant to CPLR §5015(a)(1). Specifically, Declan must demonstrate not only a valid excuse, but also that there was an absence of willfulness, that no undue prejudice would result from a finding for excusable default and most importantly, that there is a meritorious claim (Matter of Wang, 5 AD3d 785 [2d Dept 2004]; Matter of Boyce, 158 AD2d 422 [1st Dept 1990]) Conclusory and unsubstantiated allegations of law office failure are not sufficient (LaSalle Bank, N.A. v. LoRusso, 155 AD3d 706, 707, [2d Dept 2017]). In support of his petition to vacate the probate decree, Declan claims that his former attorney’s illnesses and health issues prevented the attorney from informing him of Society’s summary judgment motion in the probate proceeding until after the will was already probated. Upon review of the Court’s file, it appears that Declan had retained two attorneys concurrently during the time of the probate proceeding, one of whom served as a file attorney and the other who served as trial counsel. Both attorneys participated in the 1404 examinations and both attorneys were served with Society’s motion for summary judgment with the transcript of the 1404 examination attached. The motion for summary judgment and the attached testimony for the 1404 examination were also filed by Society in the Court’s e-filing system and were readily accessible to Declan. A party attributing a default to a former attorney must provide a detailed and credible explanation (U.S. Bank N.A. v. Barr, 139 AD3d 937, 937-938, [2d Dept 2016]). Here, Declan has provided various exhibits containing e-mail conversations between his former attorney and himself after the probate decree was already issued, but fails to provide any evidence regarding the illness of his former attorney that purportedly led to his default. Without proof documenting the attorney’s alleged illness or an affirmation by the attorney providing the details and circumstances of his ailments during the time Society’s motion for summary judgment was pending, the petitioner’s claims could be described as unsubstantiated allegations. Although ineffective counsel or attorney error can, in limited circumstances, serve as grounds for excusable default (see Matter of Layne, 49 Misc 2d 495 [Sur Ct, Livingston County 1966]; In re Arnold’s Will, 125 NYS2d 782 [Sur Ct, Suffolk County 1953]), such has not been properly established here. However, even if the Court were to accept the submissions as proof of excusable default under CPLR §5015(a)(1), the Court would nevertheless decline to vacate the probate decree because the petitioner has failed to meet his burden of establishing a reasonable probability of success on the merits. A party seeking to vacate a probate decree based upon the alleged exercise of undue influence must establish a substantial basis for its challenge to the probated will and a reasonable probability of success on the merits of its claim (Matter of American Comm. for Weizmann Inst. of Science v. Dunn, 10 NY3d 82, 86, 883 N.E.2d 996, 854 N.Y.S.2d 89 [2008]; see In re Estate of Musso, 227 AD2d 404, 406, 642 N.Y.S.2d 322 [2d Dept 1996]; In re Westberg’s Estate, 254 AD 320, 321, 5 N.Y.S.2d 31 [1st Dept 1938]). As can best be construed from the petitioner’s papers, the petitioner’s primary basis for contesting the will and the probate decree is the discovery of “newly discovered evidence”, pursuant to CPLR §5015(a)(2). Pursuant to CPLR §5015(a)(2), the petitioner must satisfy the Court that the newly discovered evidence could not have been discovered earlier through the exercise of due diligence and would probably have produced a different result (see Borrie v. County of Suffolk, 197 AD3d 1285, 1286, [2d Dept 2021]; Globe Trade Capital, LLC v. Hoey, 199 AD3d 775, [2d Dept 2021]; JP Morgan Chase Bank, Nat’l Ass’n v. Borukhov, 160 NY3d 903 [2d Dept 2022]). The newly discovered evidence provided must be material and new, and not merely “cumulative” of what was already known to the Court. (Matter of Catapano, 17 AD3d 673, 794 N.Y.S.2d 403 [2d Dept. 2005]; LaRose v. Pathare, 29 Misc.3d 1203[A], 958 N.Y.S.2d 308 [Sup. Ct. Richmond County 2010]). The supporting evidence presented by the petitioner consists of testimony from the transcripts of the 1404 examination of the attesting witnesses and print-outs of various publicly accessible internet webpages and online news articles, all of which pre-date the decree entered hereon. Specifically, the printed webpages and online news articles presented by the petitioner were dated most recently as of February 8, 2017, and were accessible prior to the submission of the Society’s motion for summary judgment in the probate proceeding. Thus, it would appear that the evidence presented by the petitioner can not be construed as “newly discovered evidence,” pursuant to CPLR §5015(a)(2). Even more importantly, the evidence provided lacks any probative value to establish undue influence. For a will to be invalidated based on undue influence, the person alleging same must show 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, 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 Soc. 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]. The alleged undue influence here asserted by Declan arises from the claim that the attorney draftsperson’s firm had represented the Roman Catholic Diocese as a client on an ongoing basis and had occasionally represented Society. Additionally, the petitioner alludes to the attorney draftsperson’s testimony during the 1404 examination, whereby the attorney draftsperson states that he met with the decedent at the request of Monsignor Bennet, who was the Chief Financial Officer of the Roman Catholic Diocese of Brooklyn at the time of the will. However, neither Monsignor Bennet nor the Diocese are beneficiaries under the instrument. Nor is the fact that the will bequeaths the residuary to another client of the draftperson’s firm determinative of the issue. The attorney draftsperson testified that he met with the decedent prior to the preparation of his will, that the decedent received a draft of the will before the date of execution and that the decedent confirmed with the attorney draftsperson that it expressed the decedent’s testamentary wishes. Moreover, the decedent’s bequest of his estate to a charitable religious missionary organization, given his occupation as a Roman Catholic Priest with apparently no meaningful familial relationships, appears entirely natural and unsuspicious. Alternatively, the petitioner attempts to assert the existence of fraud under CPLR §5015(a)(3) as an issue. Although the Surrogate’s Court has the inherent power to vacate its own decrees on the grounds of fraud (see Matter of Brennan, 251 NY 39 [1929]; Matter of Regan, 167 NY 338, 341 [1901]), the moving party must fulfill his burden of proof by establishing sufficient facts from which the court can determine that a fraud has been committed (Matter of Griffin, 210 A.D. 564 [3d Dept 1924]; In re Estate of Kauffman, 54 AD2d 1067, 1067 [4th Dept 1976]). The Court finds that the petitioner has failed to provide any admissible evidence, either circumstantial or direct, that fraud has occurred. Conversely, Society’s motion papers, including the transcript of the SCPA §1404 examination, the attestation clause and the witness affidavits, set forth facts sufficient for a prima facie showing that no fraud occurred. Essentially, petitioner’s motion papers are a screed of Declan’s personal analysis of the SCPA §1404 examination supplemented by public records, none of which establish a legal basis to warrant the requested relief. Based on the foregoing, and upon review of the entire court record herein, the Court finds that the underlying papers demonstrated, prima facie, an absence of undue influence, duress, and fraud in the instrument’s creation. The testimony of the draftsperson indicated that he communicated independently and directly with the testator, who was rational at all relevant times and clearly and coherently expressed his wishes. The Court found 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 restraint. Nothing raised in Declan’s submissions raises an issue of fact as to these findings or provides a reason to disturb the decree entered hereon. Accordingly, the petition is dismissed and the petitioner’s motion to vacate decree is denied. Respondent’s cross-motion for summary judgment to dismiss the petition is granted to the extent set forth above. This is the decision and order of the Court. Dated: June 27, 2023
