Matter of Kolarik

[*1] Matter of Kolarik 2006 NY Slip Op 50267(U) [11 Misc 3d 1057(A)] Decided on February 28, 2006 Sur Ct, Bronx County Holzman, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on February 28, 2006
Sur Ct, Bronx County

In the Matter of the Estate of Ernest P. Kolarik, Deceased.



954-P/04

Lee L. Holzman, J.

In this probate proceeding, the proponent, the wife of the decedent's predeceased cousin and the nominated executrix under the propounded instrument, dated October 18, 1999, moves for summary judgment. Specifically, she seeks the following relief: dismissal of the decedent's spouse's objections to probate; admission of the will to probate; dismissal of the objectant's petition for letters of administration; and costs and attorney's fees against either or both the objectant and her counsel pursuant to either SCPA 2302 or 22 NYCRR 130.1.1.

The decedent died on November 2, 2004 at 72 years of age survived by his spouse and daughter as his only distributees. Under the propounded instrument, which contains an attestation clause and a self-proving affidavit, the objectant is the beneficiary of the marital abode, a cooperative apartment, and the balance of the estate is bequeathed to the daughter. The following proof has been submitted in support of the motion: the propounded instrument, a copy of the decedent's prior testamentary instrument on which the decedent noted changes in his own handwriting, the affirmation of the attorney drafter, the affidavits of the two attesting witnesses and transcripts of their SCPA 1404 examinations, and the proponent's affidavit. The objectant filed standard objections to probate, alleging lack of due execution, lack of testamentary capacity, fraud and undue influence. Her opposition to this motion is limited to her own affidavit. The attorney drafter states that he represented the decedent in 1990 in a divorce proceeding in which the decedent's prior wife was the other party. In 1999 the decedent communicated with the attorney about changing his will. The decedent gave the attorney a copy of his March 18, 1997 will which apparently had been prepared by the father of the attorney who is now representing the objectant. On this copy, the decedent had crossed out the words "friend and companion" to describe the objectant and replaced them with the word "wife", and changed her last name to reflect that it was the same as his own. He also crossed out the limitations on the objectant's use of the cooperative apartment in which the couple resided. His daughter was the sole residuary beneficiary under this instrument and the decedent did not indicate that he wanted to change this clause. The attorney then prepared a draft of the will, increasing the objectant's legacy to an outright interest in the cooperative apartment, and mailed it to the decedent.

The decedent came to the attorney's office on October 18, 1999, where he reviewed [*2]the will with the attorney before he executed it in the presence of the two attesting witnesses, who were employees of the law firm, and the attorney who supervised its execution. The attorney retained the original will and mailed a copy to the decedent. The attorney and the attesting witnesses all state that the will was executed in accordance with the statutory requirements set forth in EPTL 3-2.1. They also note that the decedent was alert and rational and that his appearance and speech were normal. The proponent avers that the decedent had discussed his testamentary plan with her and that the propounded instrument carries out his plan.

The objectant asserts that the court should give no weight to the testimony of the attesting witnesses because they admitted that the attorney drafter, who is representing the proponent, had discussed with them the questions that they would be asked at their SCPA 1404 examinations. She also notes that her husband made a striking appearance. Thus, she finds it suspicious that the two attesting witnesses could not describe much more about the decedent other than that he had an Eastern European accent and that the attorney's recollection of the decedent's height, weight and hair color were 6 feet, 200 pounds and graying, while in fact, he was 6 feet 3 inches, 220 pounds and had been bald since 1994. She cites as further proof that the testimony about the execution ceremony is a fabrication the fact that the attorney kept the original of the propounded instrument while the decedent had retained the prior will in his safe deposit box. She concludes from the above "that it is quite possible or far more than likely that this entire transaction was done through the mail" with the decedent never having met the attorney or the attesting witnesses.

Summary judgment motions cannot be granted unless it clearly appears that no material triable issues of fact exist (Phillips v. Kantor & Co., 31 NY2d 307 [1972]; Glick & Dolleck, Inc. v. Tri-Pac Export Corp., 22 NY2d 439 [1968]). The movant must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence in admissible form to demonstrate the absence of any material issue of fact (Alvarez v. Prospect Hospital, 68 NY2d 320 [1968]; Friends of Animals, Inc. v. Associated Fur Manufacturers, Inc., 46 NY2d 1065 [1979]). When the movant has made a prima facie case, the burden of going forward shifts to the party opposing the motion to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact (Zuckerman v. City of New York, 49 NY2d 557 [1980]). Summary judgment is a drastic remedy which requires that the party opposing the motion be accorded every favorable inference and issues of credibility may not be determined on the motion but must await the trial (Westhill Exports, Limited v. Pope, 12 NY2d 491 [1963]). The papers submitted in the summary judgment application are always scrutinized in a light most favorable to the party opposing the motion (Robinson v. Strong Memorial Hosp., 98 AD20 976 [1983]).

There was a time when summary judgment was rarely granted on the issues of due execution and testamentary capacity in will contests because the proponent has the burden of proof on these issues. However, the courts now require that an objectant's opposition to a summary judgment application in a contested probate proceeding consist of more than a hope or a prayer that the proponent's uncontroverted evidence may be held not worthy of belief. Consequently, summary judgment is now frequently granted where the proponent has made out a prima facie case and the objectant, having had an opportunity to examine the witnesses, has failed to raise any triable issue of fact and has made only bald, conclusory assertions (Harris, 5th Ed., New York Estates: Probate, Administration and Litigation, Vol. 2, §19.105).

Here, the proof adduced by the proponent clearly suffices to meet her burden of proof [*3]on the issue of due execution, especially in light of the circumstances that an attorney supervised its execution (Matter of Bustanoby, 262 AD2d 407 [1997]) and that it contains an attestation clause (Matter of Nelson, 141 NY 152 [1894]). The objectant is grasping at straws and relying upon no more than surmise and conjecture when she concludes that the attesting witnesses and the attorney never saw the decedent because five years after the execution ceremony their descriptions of him are not completely accurate and because they are unable to be more specific about his accent. Such conjecture fails to withstand scrutiny in light of the fact that the attorney apparently had previously represented the decedent in a contested divorce proceeding. Moreover, their motive for having engaged in such chicanery does not come to mind because the objectant receives less under the prior will which appears to have been prepared by her present attorney's father.

The proponent has also met her burden of proof in establishing the necessary elements for testamentary capacity (Matter of Kumstar, 66 NY2d 691 [1985]). The objectant has not offered an iota of proof to rebut the proponent's prima facie case on this issue .

For the reasons stated above, and it appearing that the will was duly executed at a time when the decedent had testamentary capacity and was not under restraint (EPTL 3-2.1), the motion is granted to the extent that a decree may be settled dismissing the objections to probate, dismissing the objectant's petition for letters of administration and admitting the October 18, 1999 will to probate. Although the court has found that the objections should be dismissed, the lack of recollection by the attesting witnesses with respect to some of the details about the decedent's appearance and the execution ceremony militates against finding that the filing of the objections was frivolous or otherwise warrants the imposition of either costs or attorney's fees. Accordingly, in the exercise of the court's discretion, the application for costs and attorney's fees is denied and the decree to be entered herein shall so provide.

Settle decree.

SURROGATE