Upon the following papers numbered 1-12 read on this motion for summary judgment and objectants’ cross motions for summary judgment: Notice of Motion and supporting papers, 1-4; Answering affirmations with cross motions and supporting papers, 5-11; and Replying affirmation, 12; it is ORDERED, that petitioner’s motion for summary judgment is granted; and it is further ORDERED, that objectants’ cross motions are denied. Background The decedent died on January 12, 2020 survived by his three children — Wendy Dirkes (petitioner), Jill Morrison (self-represented objectant) and Suzy Sparozic (objectant). Petitioner on April 14, 2022 offered for probate decedent’s purported will dated November 8, 2013. Petitioner states in her petition that the only asset of decedent is personal property with a value of $10,000. Both Jill and Suzy filed objections to probate alleging lack of testamentary capacity, undue influence, fraud and lack of due execution. On November 8, 2013, the decedent executed a purported will nominating petitioner as the executor and created a revocable inter vivos trust (Trust) naming Wendy as co-trustee with decedent. On that date, decedent also executed deeds transferring 242 Thompson Place, Huntington Station (Thompson) and 40 Shadyside Avenue, Port Washington (Shadyside) to the Trust. The Trust provides that upon his death, the Shadyside property shall be sold as soon as practicable with the proceeds to be divided as follows: 50 percent to Wendy and the other 50 percent divided in three equal shares to Wendy, Jill and Suzy. The remainder of the trust assets, including any undistributed income, shall be paid to Wendy. The will and the trust essentially mirrored each other. An amendment to the trust dated December 18, 2017 changed the dispositive scheme removing the objectants as beneficiaries, leaving Wendy as the sole beneficiary with the exception of a $15,000 gift to decedent’s sister. Jill commenced a proceeding on July 7, 2021 in Supreme Court to invalidate the deeds, the trust, and the trust amendment. By order of Suffolk County Supreme Court dated March 21, 2022, the Supreme Court action was transferred to Surrogate’s court. On November 8, 2023, the parties entered into a disclosure stipulation which was “so ordered” by the court. The parties set forth the discovery to be employed, organized the order that said devices were to be implemented and scheduled the time frame in which to accomplish same. The parties conducted SCPA 1404 examinations and deposed petitioner, Michael Connors, the drafting attorney and attesting witness, and Ida Como, the other attesting witness. Discovery appears to be complete. Argument In her motion for summary judgment, petitioner asks the court to dismiss the objections to probate on grounds that there are no triable issues of fact concerning due execution, the decedent’s capacity, and the proponent’s exercise of undue influence and fraud. Objectant Suzy has cross moved to deny probate to the purported will claiming that decedent lacked testamentary capacity. She argues that decedent could not possibly have had capacity at the time of execution since the name “Susan” and not her legal name “Suzy” is used in the will as well as the trust instruments. In support of Suzy’s application and in opposition to the motion, Jill states that their father never referred to Suzy as Susan. Further, Suzy claims that the medical records from decedent’s hospital visit in the emergency room on April 10, 2011 showed that he had a hearing loss in his right ear. According to the April 10 record, a scan of decedent’s brain showed that there were “mild chronic white matter microvascular ischemic changes.” Objectants argue that based upon these medical records their father could not hear what the attorney was telling him and did not have the capacity to understand the import of making a will. Suzy further argues that their father was unduly influenced by petitioner when in July 2013, just a few months prior to the execution of the will, she brought her father to Connors & Sullivan, the drafting attorney’s office for a consultation to discuss revoking the Power of Attorney issued to Jill and creating a new Power of Attorney (POA) naming Wendy and Suzy as their father’s agents. In fact, the decedent on August 6, 2013 affixed his signature to the new POA and before the second witness signed, he told his attorney he was revoking the POA. Lastly, the objectants claim that the will was procured by fraud by petitioner allowing decedent to believe that Suzy had secretly changed the title on the deed to the Shadyside property to her own name when Suzy’s name was never on the deed. Summary Judgment Standard The party moving for summary judgment must make 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 Hospital, 68 NY2d 320; see also Matter of Pollock, 64 NY2d 1156). Failure to make out a prima facie case requires a denial of the motion regardless of the sufficiency of opposing papers (Winegarad v. NYU Medical Center, 64 NY2d 851). Once the movant meets her burden, the burden of going forward shifts to the opposing party to produce evidentiary proof in admissible form to establish the existence of material issues of fact requiring a trial (see Romano v. St. Vincent’s Medical Center, 178 AD2d 467, see also Friends of Animals, Inc., v. Associated Fur Manufactures Inc., 46 NY2d 1065). Due Execution The proponent of the will has the burden of proof on the issue of due execution (Matter of Kumstar, 66 NY2d 691). A will is duly executed if it complies with the requirements of EPTL 3-2.1 (see In re Templeton, 116 AD3d 781). There is a presumption of regularity that the will was properly executed in all respects where the drafting attorney supervised the will’s execution (Matter of Kindberg, 207 NY 220; Matter of Walker, 80 AD3d 865). Here, the petitioner established that Mr. Connors, an attorney, drafted the will and supervised its execution on November 8, 2013. Mr. Connors who also was an attesting witness, testified that he had supervised the execution of at least 500 wills a year and it is his usual practice to ask questions that adhere to the statutory requirements for due execution. After receiving an affirmative answer that the instrument that the testator was about to sign was his will, the attorney would then ask if the will expressed his wishes. The witnesses would then sign at the end of the instrument and their signature were notarized. Ida Como, an associate at the same office as Mr. Connors also acted as the attesting witness, testified that the formalities required for due execution were observed and in fact, the attestation clause was read out loud to the testator before he executed the purported will. The self-proving affidavits signed by the attesting witnesses essentially state that the decedent understood English and that the will was signed, published and declared to be the decedent’s last will and testament and that the witnesses signed in the presence of decedent as well as each other. Both witnesses testified that they confirmed that the testator heard and understood what was said at the execution ceremony. Petitioner, having establish a prima facie case, the burden shifts to objectants. Objectants’ unsupported allegation that the testator did not hear the attorney during the execution ceremony because he had hearing loss in his right ear is insufficient to raise an issue of fact to defeat petitioner’s summary judgment. Accordingly, petitioner is entitled to judgment as a matter of law with respect to the objection of lack of due execution. Testamentary Capacity The burden of proving testamentary capacity is also on the proponent (Matter of Kumstar, 66 NY2d 691). Testamentary capacity may be established with evidence demonstrating that the decedent understood the nature and consequences of executing a will, knew the nature and extent of the property disposed of, and knew the identity and relations of those considered to be the natural objects of his bounty (Id.). The record herein establishes that at all relevant times, including the time when the will was executed, decedent possessed the capacity required by EPTL 3-1.1 to make a will. The testimony of Mr. Connors, indicates that decedent was of sound mind at the time he executed the will. He met with the decedent three times prior to the execution of the will to discuss its preparation and making changes. He testified that at no time during any of the meetings did the testator appeared confused. Decedent was able to answer the attorney’s questions about his family members, specifically that he had three daughters and a wife who recently passed away, as well as his property and whom he wanted his property to benefit. The testimony of Ms. Como, which was consistent with Mr. Connors, indicates that the testator was competent and understood the nature of his action. She observed no physical or mental impairment that would affect decedent’s mental capacity. Based upon the foregoing, petitioner has established her prima facie case of testamentary capacity. At this point, the burden shifts to objectants to lay bare their proof, in admissible form, in order to create a triable issue of fact with respect to decedent’s testamentary capacity. To meet this shifting burden, objectants rely on the April 2011 medical records and the name “Susan” instead of “Suzy” appearing on the will and trust documents in support of their claim that decedent lack testamentary capacity. Objectants’ offerings are not sufficient to overcome the proof submitted by petitioner to raise a triable issue of fact. First, the 2011 medical records are too remote in time and nowhere in the medicals did it indicate that having “mild chronic white matter microvascular ischemic changes” impacted his mental capacity. Second, the testimony of both the drafting attorney and attesting witness, disinterested individuals, who met with the decedent more than three times in the course of preparing his will, indicate that decedent knew who his family members were and was, in fact, able to identify that he had three daughters. In addition, the petitioner submitted a report of his neurological testing taken almost 3 months after the will execution stated that he had no “significant cognitive impairment that would create difficulty with handling [his] personal affairs.” Accordingly, the objection with respect to testamentary capacity is dismissed. Undue Influence The burden of establishing undue influence is always upon the person seeking to establish it (Matter of Walther, 6 NY2d 49). To establish their undue influence claim, objectants must present evidence in admissible form showing (1) the existence and exercise of undue influence; (2) the effective operation of undue influence as to subvert the mind of the testator at the time of the execution of the will; and (3) the execution of a will that, but for undue influence, would not have occurred. (Matter of Walther, supra). Thus, the three elements are motive, opportunity, and the actual exercise of undue influence resulting in the decedent disposing of his property in a different manner than he otherwise would have (Matter of Davis, 154 AD2d 461). Mere conclusory allegations and speculation are insufficient to provide a basis that undue influence was actually exercised over the decedent (Matter of Davis, 154 AD2d 461). Here, objectants have offered no independent proof, in admissible form, establishing their claim of undue influence. Objectants’ contentions that decedent had wanted Suzy as his agent just a few months before the will execution, that their father love them all equally and that he would not have unevenly distributed his assets to his three daughters are insufficient to raise triable issue of fact. According to the testimony of Mr. Connors and Ms. Como, decedent was not accompanied by anyone on the day he executed the will. There was no one other than the drafting attorney and attesting witness in the room where he signed the will. The record shows that the only daughter who had ever accompanied the decedent to Mr. Connors’ office was Suzy. Furthermore, both witnesses testified that the decedent had some family discord with objectants that prompted court interventions prior to the will execution. Based upon the foregoing, the objection based upon undue influence is dismissed. Fraud Like undue influence, the person contesting the will on the ground of fraud has the burden of establishing it. The elements of fraud include a knowing misrepresentation of a material fact, deception and resultant injury (see Matter of Spangenberg, 248 AD2d 543). To prove fraud in the context of a will contest, objectants must show by clear and convincing evidence that a false statement was made to the testator inducing him to execute a will disposing of his property differently than he would have if he had not heard the fraudulent statement (see Matter of Coniglio, 242 AD2d 901). Objectants’ opposition papers are devoid of any proof of petitioner making false misrepresentations to the decedent in inducing him to make a will that he would not make but for the false statement. There is no evidence that petitioner made any misrepresentation to the decedent with respect to the Shadyside property being in the name of Suzy. Furthermore, objectants have not submitted proof, other than bald assertions that but for the decedent’s alleged false belief regarding the Shadyside property decedent would not have disinherited objectants. Such assertion is but mere speculation and self-serving. Based upon the foregoing, petitioner is entitled to dismissal of the objection that alleges fraud. Conclusion With jurisdiction having been obtained over all those shown as necessary parties to this proceeding and the objections having been dismissed, it appears that the propounded instrument was duly executed. Further, at the time of execution, decedent was competent to make a will and not under restraint. The genuineness of the will and the validity of its execution having been shown to the satisfaction of the court, it is admitted to probate pursuant to SCPA 1408 and EPTL 3-2.1. Letters testamentary shall issue to petitioner without the posting of a bond, as same is dispensed with pursuant to the terms of the will. It is hereby further ORDERED, that petitioner submit a proposed decree on notice to objectants. Dated: June 17, 2024
