Matter of Rabbitt

[*1] Matter of Rabbitt 2008 NY Slip Op 52091(U) [21 Misc 3d 1118(A)] Decided on October 9, 2008 Sur Ct, Kings County López Torres, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through November 7, 2008; it will not be published in the printed Official Reports.

Decided on October 9, 2008
Sur Ct, Kings County

In the Matter of the Probate Proceeding Ruth Rabbitt, Deceased.



1580/04



Attorney for the Proponent:

Allan H. Greenberg, Esq.

60 East 42nd Street,

New York, NY 10165

Attorney for Objectant:

Edward Dorney, Esq.

Conners and Sullivan, P.C.

7408 Fifth Avenue, Suite 2

Brooklyn, NY 11209

Margarita López Torres, J.

In this contested probate proceeding, proponent, Patricia Moran ("Patricia" or "proponent") has moved for summary judgment seeking an order dismissing the objections to probate filed by decedent's first cousin, twice removed, Diane Amaducci ("Diane" or "objectant") and admitting the propounded Will of decedent Ruth Rabbitt ("Ruth") dated December 24, 2002 to probate. For the reasons that follow, proponent's motion for summary judgment is granted and the Will is admitted to probate.

Ruth Rabbitt died on November 28, 2003 at age 94. During her life, Ruth worked as a commercial artist and cartoon illustrator. She divorced many years before her death, had no children and was survived by very few relatives. Her closest living relative at the time of her death was a first cousin, Roger B. Park. Mr. Park, who was left no provision in Ruth's Will, did not file objections.[FN1] Diane Amaducci filed objections alleging that the December 24, 2002 instrument is in fact not Ruth's last Will and testament; that the signature affixed to this instrument is a forgery; that the instrument was improperly executed; that the Will was the product of undue influence and fraud and that Ruth did not possess testamentary capacity at the time she executed the 2002 instrument.

The instrument dated December 24, 2002 ("2002 Will") contains three bequests of $5,000 [*2]to a life-long friend Judy Price, to a friend Marie James and to Diane Amaducci's mother, Shirley Hoffman, who predeceased Ruth. Ruth also left all of her jewelry to Patricia Amaducci, Diane Amaducci's daughter. Notably absent as a beneficiary is Diane Amaducci, who with her mother were the primary beneficiaries of a prior Will dated August 25, 1998. The 2002 Will bequeaths the bulk of her estate to Ruth's neighbor and friend, Patricia Moran. Patricia was also appointed executor under this Will. It is undisputed that Patricia and Ruth were neighbors who lived on different floors in the same apartment building for many years. For at least ten years prior to Ruth's death, the two were close friends. During Ruth's final years, Patricia was Ruth's primary companion and caretaker. It is this "confidential relationship" between Ruth and Patricia that forms the crux of many of objectant's allegations regarding due execution, undue influence/fraud and testamentary capacity.[FN2] The proponent however points to the serious rift in Ruth and Diane Amaducci's relationship that occurred in 2001 as evidence that Ruth had no intention of bequeathing anything to Diane.

In support of the motion for summary judgment, the proponent submits the affidavit of Patricia Moran; the deposition of the attorney draftsperson Jack Stetch, the deposition of Dr. Larry Kurz, who was Ruth's primary care physician and an attesting witness to the 2002 instrument, the deposition of her long time friend, Judith Price [FN3]; the deposition of Ruth's doorman, Carlton Jenkins, who had been acquainted with Ruth for more than 25 years and the deposition of Joyce Jenzen, also an attesting witness to the 2002 instrument. In addition, proponent offers an affidavit of attesting witness Joyce Jenzen and correspondence between Ruth and her friends that underscores Ruth's anger toward Diane. The objectant submits in opposition her affidavit and a "file memo" by attorney James Cahill dated April 12, 2001 that comments on the testamentary capacity of the decedent. In reply, proponent submits a reply affidavit by Patricia Moran and the affidavit of Allan Greenberg.[FN4]

In her affidavit, Patricia Moran avers that she knew Ruth for many years as a neighbor and that they became friends through the years. Patricia testified that in March 2001, the building's doorman, Carlton Jenkins, informed her that Ruth had a stroke. She states: Ruth called me a few months later and asked me to come to her apartment. She [*3]was in dire straits. There was little food in the apartment and she was very skinny. I began to visit her in her apartment virtually every night and brought her food, cooked for her and shopped with her on Sundays. She would come with me to do the grocery shopping. I slept in a chair in her apartment for a few nights when she was scared. . . . I became very close with Ruth in the last few years of her life and did all the things a daughter would do, including making her hospital and nursing home arrangements.

Patricia also assisted Ruth with her request to make a Will, a living Will, health care proxy and power of attorney. Patricia states that Ruth eventually selected Jack Stetch ("Stetch") as the attorney to prepare these documents and Patricia called Stetch's office and made an appointment for Ruth to see him. Patricia states that Stetch interviewed Ruth and requested and received a letter from Ruth's primary care physician, Dr. Kurz, confirming that Ruth was of sound mind and body. Although Patricia was the named executor, Patricia states that it was her hesitation to assume the responsibility as executor that delayed the execution of the Will until December 24, 2002. On this day, Patricia and Ruth traveled to Dr. Kurz's office, where Dr. Kurz first examined Ruth and thereafter witnessed the Will. On December 26, 2002, at Ruth's request, Patricia invited Joyce Jenzen to Patricia's apartment to also witness the Will. Patricia states that Joyce read the Will and then signed as a witness.

As evidence of Ruth's intention to leave nothing to Diane, Patricia points to the fact that Ruth's Will leaves specific bequests to Diane's mother and to Diane's daughter, but not to Diane. Patricia also produced a note allegedly written by Ruth to Diane in December 2001 that punctuates the discord between them: Please don't send me any more gifts I am only interested in getting back my silver & straightening out the mess you've made me at overeems[sic] you are so evil and expect me to forgive you never you ruined my last days on earth how proud you must feel I loath you R.R.

Petitioner's Motion, Exhibit 21.

At his deposition, Jack Stetch testified that in January 2002 Ruth and Patricia came to his office where Ruth inquired about writing a Will. Stetch stated that Ruth "was very disturbed about a relative who she felt . . . had emptied out [her checking] account and some T-bills, had cashed them in without her permission." Stetch averred that he believed the relative's name was Amaducci and that Ruth stated that Amaducci lived in Massachusetts. Stetch stated that it was his "normal practice" when dealing with elderly patients to request verification of the physical and mental health of his clients. Stetch received a handwritten inscription on a prescription pad from Dr. Kurz dated February 14, 2002 with the name "Ruth Rabbitt" at the top that stated "I have known this patient since 1991. She is presently of sound mind and body and can make her own decisions." Petitioner's Motion, Exhibit 10. Stetch testified that he discussed Ruth's estate and the making of her Will with Ruth alone, while Patricia waited in another room. Stetch states that Ruth discussed all of her assets with him, including bank accounts and a pension. Stetch averred however that he did not supervise the execution of the Will stating that while this "was a [*4]little unusual and not my usual procedure . . . [i]n some instances, some people request that they want to study the Will, to forward it to them." In addition, Stetch testified that he tried to impress upon Patricia Moran the importance of returning the signed original to him, but that this was never done. Regarding Ruth's testamentary capacity, Stetch opined that Ruth "absolutely" possessed the capacity to make a Will noting that Ruth was "a functioning nice little old lady, very interesting lady, too. But adamant on what she wanted done."

Carlton Jenkins was Ruth doorman for approximately 33 years. He testified that over the years he saw Ruth at least once a day and he got to know Ruth well. Jenkins stated that Ruth was "very friendly, very outgoing, and you know, quite a lady, she would do what she had to do, you know?" Jenkins testified that at some point a female relative came to stay with Ruth and that shortly thereafter Ruth approached Jenkins and told him that "she don't want this lady [Diane] entering the house any more. She said she stole my pictures, she stole this, she took that. She said I don't want her back in my house because I'm afraid of her." Jenkins averred that it was the first time he had seen Ruth upset and "that's why I know it's serious." Jenkins explained to Ruth that she should contact management about her concerns and that to his knowledge, the relative never returned. The proponent submits a memo from Ruth to Jackson Management that states "I asked Carl Jenkins to make a note for the front desk not to admit Diane Amaducci up to my apartment and he said to put it in writing to you. Thank you, Sincerely, Ruth Rabbitt. Petitioner's Motion, Exhibit 16.

Jenkins testified that two days after Ruth had her first stroke he found Ruth partially clothed on the bathroom floor. Because he knew Ruth and Patricia were friends, he called Patricia for assistance. Jenkins let Patricia into the apartment to assist Ruth and noted that in the days to come he saw Patricia assisting Ruth in many ways, doing "all the other things that normally a relative would do. She was always there going to the store for her. She did that for her, so naturally, [I would ] call Pat." Jenkins also stated that he never had the sense Patricia was controlling Ruth because "nobody tell[] Ruth what to do. She do what she wants to do."

Ruth's long time friend, Judith Price, was also deposed. Price testified that she met Ruth in 1956 at UPA Pictures Animation Studios and that soon after they began a friendship that lasted until Ruth's death. Price explained at her deposition that since1956 she had kept detailed daily journals with contemporaneous notes about the day's events. Ms. Price referred to these journals and read the entries out loud as part of her testimony. Price testified that Ruth told her about a cousin, Shirley, that lived in Cape Cod. Price first spoke to Shirley's daughter Diane on March 26, 2001 while Diane was staying with Ruth after Ruth's stroke. Diane told Price that "Ruth was beginning to accept the idea" of moving with her to Cape Cod. However, in the next two days, there was a dramatic change of events. On March 28, 2001, Diane told Price that Ruth wanted Diane to leave, which she did on March 31, 2001. Price read her diary notes which stated that "Rabbitt was relieved to be on her own. Thinks Diane is cleaning her out." Price stated that Diane returned on April 12, 2001 and "was in and out all day and lawyer was there." Ruth told Price about boxes Diane took out of the apartment and did not return in addition to missing photographs and bankbooks. Price stated that Ruth told her that "Diane cleared out a seventy-five thousand dollar account."

At the deposition, Price produced a handwritten note to Price by Ruth stating "Be sure to call me, Diane closed the seventy-five thousand dollar account. She's out to kill me, one way or [*5]another." Ruth signed the note with "the little signature rabbit drawing that Ruth signed her stuff with." Petitioner's Motion, Exhibit 14. Price testified that in 2002, after Ruth was hospitalized with a second stroke, Jenkins put Price in contact with Patricia Moran so that Price could communicate with Ruth. Price averred that after Ruth confronted Diane about the missing items, Ruth never heard from Diane again and that Diane did not call Ruth to notify her that Shirley had died.

Of the relationship between Patricia and Ruth, Price states "I know that she [Patricia] was very solicitous of Rabbitt. She bought her clothing and made sure she was kept neat and hung up little toy stuffed animals and she almost was a substitute mother because her [Patricia's] own mother was ill upstate and she lavished her extra money and in fact she has Ruth's ashes and keeps them in her apartment." Of the relationship between Ruth and Diane, Price states "During [Ruth's] anger she said I hate her [Diane] and I don't want her to have anything from me. . . . she hates Diane." Price explained that she renounced her legacy after thinking about it: "[a]t first I didn't want to because I needed it, but I thought if I'm the only witness to what I know went on with Ruth to make any difference, then I wanted Ruth's wishes to be carried out."

Proponents also offer the deposition of Dr. Larry Kurz, Ruth's primary care physician and one of the attesting witnesses to Ruth's Will. Dr. Kurz averred that he was Ruth's doctor since January 22, 1991. The last time he saw Ruth was on Christmas eve, December 24, 2002. On this date, in addition to physically examining Ruth, Dr. Kurz signed as an attesting witness to Ruth's Will. Unfortunately, other than recognizing his signature on the Will, Dr. Kurz testified that he has no other memory of this event, stating only "I sign a lot of documents." Dr. Kurz's memory of Ruth's physical and mental health state on this date is more comprehensive. Although Ruth had experienced several periods of disorientation and confusion after she was hospitalized, Dr. Kurz testified that on December 24, 2002, Ruth "appeared to be fairly okay. I don't know if I would use the words completely competent" but that Ruth knew what she was doing. Dr. Kurz also testified that he was able to communicate with her without any trouble and that she did not appear to be under any duress or restraint on this date.

Joyce Jenzen witnessed Ruth's Will on December 26, 2002. Jenzen testified at her deposition that she first met Ruth during the Christmas holidays in 2001 at a party a Patricia Moran's apartment and again on the day she witnessed the Will. Jenzen avers that she clearly remembers the day because it was the day after Christmas. Jenzen states that at Ruth's request, Patricia contacted Jenzen to witness the Will at Patricia's apartment. On this date Jenzen states that she walked into the apartment and that Ruth thanked her for coming to witness her Will. The parties assembled at the dining room table where Ruth then took out the original Will and handed the Will to Jenzen, who reviewed it and then signed it. Ruth then said "good, good, good, Joyce, it's done."

On May 15, 2004, Jenzen signed a form affidavit of attesting witness after death pursuant to SCPA § 1406. Petitioner's Motion, Exhibit 12. In this affidavit, Jenzen swore that upon review of a court certified copy of the Will, that to the best of her knowledge at the time Ruth subscribed and executed the Will, Ruth appeared to be "of sound and disposing mind, memory and understanding, competent to make a Will, and not under any restraint." Jenzen crossed out two form sections of the affidavit: the first crossed out section stated that she "saw decedent subscribe the same at the place where decedent's signature appears" and the second states "I saw [*6]the other witness Larry Kurz sign his/her/their name(s) at the end of such instrument as a witness thereto." At her deposition, Jenzen explained that she crossed out these form sentences because they were incorrect: although Jenzen witnessed Ruth's signature, she did not see Ruth or Dr. Kurz sign the instrument. Jenzen also attached to the affidavit an additional hand written statement with the same explanation.

The objectant offers as evidence in opposition a "File Memo" from attorney James Cahill who, on April 12, 2001, spoke to Ruth about her legal affairs, and the affidavit of Diane Amaducci. Diane's affidavit, not surprisingly, offers a different version of events. Diane states that she enjoyed a close relationship with Ruth until she visited Ruth for a extended visit after Ruth's first stroke in 2001. Diane states that when she visited Ruth at that time, she found Ruth's apartment "disordered" and "[d]uring a three week period when I stayed with her, I began to help her straighten out her finances. At one point, she claimed to have found lost stocks, after which we requested that they be re-issued. My Aunt was grateful to me for my help and interest, and gave me some of her heirloom possessions and made me the beneficiary of some stocks."

Diane states that although there existed a Will dated August 25, 1998 leaving Ruth's estate to Diane and Diane's mother, Shirley, Diane realized that Ruth's health care proxy had expired and wanted to call an attorney to assist Ruth in the preparation of a new proxy. As evidence of Ruth's deteriorating mental state, Diane explains that Ruth did not want to use the draftsperson of the 1998 Will because of an irrational belief that Diane would fall in love with this attorney. Diane avers that she received the referral of attorney James Cahill who visited Diane and Ruth on April 12, 2001. However, Diane states "instead of the health care proxy, Mr. Cahill began to talk to my Aunt about her Will, and asked her a lot of questions about her relatives and finances. After he talked to her alone for a time, my Aunt could not make up her mind what about what to do, and Mr. Cahill left."

Diane states that after she left her Aunt, "[a]lthough I continued to telephone my Aunt and pay her bills for her, my [own] mother's health deteriorated to the point where I felt that [I] could no longer leave my mother alone for long periods of time. As a result, I could no longer visit my Aunt as often." At some point in 2001, Diane states that she received a call from Patricia Moran, whom she did not know. Patricia allegedly told Diane that she "had taken over as my Aunt's financial advisor and that I was to return certain records of my Aunt to her." Diane states that she asked to speak to Ruth who said that "Ms. Moran was a very sweet lady." Diane however was convinced that Ruth "sounded confused and reticent." After Diane sent the records to Ruth, it does not appear that there was any communication between Diane and Ruth except for a "table top tree" Diane sent Ruth for Christmas 2001 and Ruth's "strange and hostile note purporting to be from her that is attached as Exhibit 21 in the moving papers." Diane states that she was "so hurt and upset at the tone and false accusations of this note that I did not respond; however I clearly felt that my Aunt was not in her right mind and was almost certainly being manipulated by Ms. Moran."

The file memo prepared by James Cahill on April 12, 2001 states: I arrived at the apartment of Ruth Rabbitt . . . I was greeted by a frail woman who appeared in otherwise good health absent a small paralysis on one side of her face. . . . Also present was Diane Amaducci who purports to be the "niece"of Ruth Rabbitt. . . . After about a 40 minute discussion with Ruth and Diane concerning [*7]the assets, I was unable to definitively identify the amount and title to the assets, to the extent I was able to identify some assets. . . . I was further informed that with the exception of Astoria Federal account Diane had taken Ruth and facilitated the creation of joint accounts between herself and Ruth. I explained on two occasions that such joint accounts would avoid Probate and that Diane would automatically get the funds. . . . I then asked Diane to leave the room for approximately 15 to 20 minutes during the time I again explained that the joint accounts would automatically pass to Diane. At that time Ruth expressed surprise and was not aware that would happen. She did not definitively say that she wanted Diane to have the money, but said that she would use the money well. I then asked whether Ruth wanted to execute a Will, at that point Ruth indicated that she did not know whom she wanted to leave her money to. . . . We then brought Diane back into the room and informed her Ruth was going to think things over and to let me know when she was ready. . . .Overall I found Ruth's demeanor to be slightly confused.

In her reply affidavit, Patricia states that she had one conversation with Diane on October 3, 2001, "the day Ruth and I closed the last of the accounts with Amaducci's name as joint holder." Patricia states that contrary to Amaducci's claims to the contrary, Patricia's name was never placed on any of Ruth's accounts. Patricia submits documentary evidence in the form of bank statements to substantiate her claim that Ruth alone was named on the accounts after Diane's name was removed.

Summary Judgment

Summary judgment may be granted only when it is clear that there exist no triable issue of fact. Alvarez v. Prospect Hosp., 68 NY2d 320, 324 (1986); Phillips v. Joseph Kantor & Co., 31 NY2d 307, 311 (1972). The court's function on a motion for summary judgment is "issue finding" rather than issue determination (Sillman v. Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 (1957 ), because issues of fact require a hearing for determination. Esteve v. Abad, 271 A.D. 725, 727 (1st Dep't 1947). Consequently, it is incumbent upon the moving party to make a prima facie showing that he is entitled to summary judgment as a matter of law. CPLR 3212(b); Zuckerman v. City of New York, 49 NY2d 557, 562 (1980); Zarr v. Riccio, 180 AD2d 734, 735 (2d Dep't 1992). The papers submitted in connection with a motion for summary judgment are always viewed in the light most favorable to the non-moving party. Marine Midland Bank, N.A. v. Dino & Artie's Automatic Transmission Co., 168 AD2d 610, 610 (2d Dep't 1990). If there is any doubt as to the existence of a triable issue, the motion must be denied. Hantz v. Fishman, 155 AD2d 415, 416 (2d Dep't 1989).

If the moving party meets his burden, the party opposing the motion must produce evidentiary proof in admissible form sufficient to establish the existence of a material issue of fact that would require a trial. Zuckerman v. City of New York, 49 NY2d 557, 562 (1980). In doing so, the party opposing the motion must lay bare his proof. Towner v. Towner, 225 AD2d 614, 615 (2d Dep't 1996). With this in mind, it is also important to remember that in order to defeat a motion for summary judgment, the objectant must demonstrate that there is a genuine [*8]triable issue by allegations that are specific and detailed and substantiated by admissible evidence in the record. Mere conclusory assertions Will not suffice. Matter of O'Hara, 85 AD2d 669, 671 (2d Dep't 1981). General conclusory allegations which contain no specific factual reference cannot defeat a motion for summary judgment. McGahee v. Kennedy, 48 NY2d 832 (1979).

Testamentary Capacity

The proponent has the burden of proof regarding whether the testator possessed testamentary capacity and the Court must look to the following factors: "(1) whether she understood the nature and consequences of executing a Will; (2) whether she knew the nature and extent of the property she was disposing of; and (3) whether she knew those who would be considered the natural objects of her bounty and her relations with them." Matter of Kumstar, 66 NY2d 691 (1985), quoting Matter of Slade, 106 AD2d 914, 915 (4th Dep't 1984).

When there is conflicting evidence or the possibility of drawing conflicting inferences from undisputed evidence, the issue of capacity is one for the jury. Id. However, it is also established law that the capacity required to make a Will is less than any other contract. Matter of Coddington, 281 A.D. 143 (3rd Dep't 1952). Moreover, a decedent would not lack testamentary capacity merely because she had a general instead of a precise knowledge of the property passing under his Will. Matter of Fish, 134 AD2d 44, 46 (3rd Dep't 1987) citing Matter of Bush, 85 AD2d 887, 888 (4th Dep't 1981). Furthermore, the fact that decedent might have been confused or disoriented within a period relatively close in time to when the Will was executed does not mandate denial of the Will to probate if the Will was executed during a lucid interval. Matter of Buckten, 178 AD2d 981 (4th Dep't 1991); Matter of Hedges, 100 AD2d 586 (2d Dep't 1984). The Court must look primarily to see if the decedent was of sound mind and fully aware of the nature and consequences of her actions in disposing of her property at the time the Will was executed. Matter of Minasian, 149 AD2d 511 (2d Dep't 1898).

Proponent presented the testimony of the attorney draftsperson who averred that at the time the Will was drafted, decedent was completely lucid and competent. Proponent also offered the testimony of both attesting witnesses, one of whom was decedent's primary care physician who examined Ruth on December 24, 2002. Dr. Kurz testified that although Ruth had experienced several past episodes of confusion and disorientation, and although Ruth may not have been "completely competent," she "appeared fairly okay" and knew what she was doing on the day she signed her Will. Dr. Kurz also testified that he was able to communicate with Ruth without trouble and that she appeared free of duress and restraint. Witness Joyce Jenzen confirmed that Ruth was lucid on the day she witnessed her signature; that Ruth thanked her for witnessing the Will and that she appeared to be "of sound mind, memory and understanding, competent to make a Will, and not under any restraint." Finally, proponent presented the deposition of Ruth's friend, Judy Price who spoke to Ruth during Christmas week, 2002 and who testified that she had a normal conversation with the decedent that "was great. It was like no stroke or no Bell's palsy. It was very animated."

In opposition and as evidence of Ruth's lack of testamentary capacity, objectant has offered her own self-serving affidavit. Diane's "proof" consists of remarks allegedly made by the decedent to her in 1991 that Diane presents as evidence of incapacity. However, these vague, general and unsupported allegations fail to show an episode of incapacity at any time proximate [*9]to the actual Will execution in December 2002 and thus fail to raise a triable issue of fact.

Objectant's other evidence, the April 12, 2001 file memo by James Cahill, constitutes pure hearsay. While a party opposing summary judgment may submit hearsay evidence, such proof may not be the sole factual basis for denying the motion. Rodriguez v. Sixth President, Inc., 4 AD3d 406 (2d Dep't 2004). However, even if this document did not constitute hearsay, the Court finds it offers no evidence that casts doubt on the issue of Ruth's testamentary capacity. To the contrary, James Cahill offered the opinion that Ruth declined to execute a new Will on April 12, 2001 not because she was incapable, but because she was undecided as to whom she wished to make a beneficiary. In addition, the file memo suggests that Ruth was confused and surprised only because she had not fully realized that the joint bank accounts that she had created with Diane would bypass probate and be left automatically to Diane. Ruth's reticence to create a Will when she was unsure if she wanted Diane to be the beneficiary cannot constitute evidence that Ruth lacked testamentary capacity. On the contrary, the fact that she was undecided and wanted more time to think things through suggests that Ruth possessed the requisite testamentary capacity. Finally, the Court notes that because there is no temporal nexus between the creation of this memo and Ruth's execution of her Will in December 2002, this file memo is useless as evidence that Ruth lacked testamentary capacity on December 24, 2002.

In short, the proponent has presented the testimony of both attesting witnesses and a disinterested witness that establishes that Ruth was of sound mind and capable of executing a Will on December 24 & 26, 2002. One of the witnesses, decedent's treating physician, testified that it was his opinion, based on a reasonable degree of medical certainty, that decedent was competent when she signed the Will. On the other hand, objectant, has offered no evidence to refute the proof offered by proponent that establishes testamentary capacity. On this record, there is no basis for objectant's contention that the testator lacked the testamentary capacity. In the absence of any evidence tending to show a lack of testamentary capacity on the part of the decedent, petitioner's motion for summary judgment on the issue of testamentary capacity is granted.

Due Execution

Objectant argues that summary judgment should be denied because of the "unorthodox circumstances" concerning the execution of decedent's 2002 Will. First, objectant states that the attorney-draftsperson Stetch had no prior relationship with the decedent; that he did not take notes at his meeting with Ruth and that decedent did not give him a family tree. Objectant also points out that Stetch did not speak with Ruth's primary care physician, choosing instead to request a statement in writing from Dr. Kurz that Ruth was of sound mind. In addition, the attorney- draftsperson did not supervise the signing of the Will which was drafted in January 2001 but not signed until December 2002.

Objectant also argues that lack of due execution may be inferred from the inability of Dr. Kurz to remember the circumstances in which he signed the Will. Objectant also points to the fact that the Will was signed on December 24, 2002 with only Dr. Kurz as a witness; that although Joyce Jenzen witnessed the Will two days later, on December 26, 2002, Jenzen did not actually see Ruth sign the Will; that the Will was witnessed by Jenzen in Patricia Moran's apartment and that it was Patricia and not Ruth that "published" the Will to Jenzen. [*10]

The Court need not tarry on the issues raised by the objectant regarding attorney-draftsperson Stetch and his meeting with Ruth. The fact that Stetch had no prior relationship with the decedent; that he took few notes and that the decedent did not give him a family tree is simply of no moment. Stetch testified that he met with Ruth privately to discuss her Will and discussed with her all of her assets and who she wanted as beneficiaries. In addition, Stetch requested verification of his client's health by her primary care physician, which he received. There is simply no legal requirement that the meeting be conducted otherwise or that Stetch "meet" with the primary care physician or take formal notes or request a family tree. As Stetch testified, Ruth was able to identify her few living relatives and Stetch recalled in particular that Ruth was very angry at Diane Amaducci for allegedly taking items from Ruth's apartment without her permission. Finally, there is also no legal basis requiring that the attorney-draftsperson supervise the signing of the Will or that the Will be signed in a certain amount of time after it is drafted. As Stetch testified, some individuals want time to read, reread and consider their Will.

Regarding the actual execution of the 2002 Will, the law requires only that the provisions of EPTL 3-2.1 be followed. In Matter of Dujenski, 147 AD2d 958 (4th Dep't 1989), the Appellate Division reversed a Surrogate's Court decision that invalidated a Will on the issue of due execution finding that the requirements sought to be enforced by the Surrogate were not contained in EPTL 3-2.1: According to the statute, the testatrix need not sign in the presence of either witness; it is sufficient if she acknowledges her signature to them as having been affixed by her. She may acknowledge her signature to each attesting witness separately. There is also no requirement that either the will or the testatrix' signature be dated. Indeed, the date on which the testatrix signed is irrelevant, since there is no requirement that the will be witnessed within any specified time of its signing by the testatrix. The only time requirements are that the witnesses sign in the course of the same ceremony or ceremonies in which the testatrix publishes the will and acknowledges her own signature, and that the witnesses sign within 30 days of each other. Thus, to the extent that its decision concludes that the proponent must show when the testatrix signed the document, the court erred (see, EPTL 3-2.1).

The Court in Dujenski concluded: Although there are gaps in the witnesses' recollections of the circumstances under which they witnessed the will, we conclude that there was sufficient proof demonstrating compliance with the requirements of EPTL 3-2.1 to sustain the petition for probate (Matter of Collins, 60 NY2d 466, 468, revg 91 AD2d 1167, on remittitur 101 AD2d 694, on appeal after trial 124 AD2d 48). The testimony established that the testatrix signed the document, declared it to be her will, acknowledged her signature to the witnesses as having been affixed by her ("She told me she signed it"), and asked each witness to sign. The will was signed by the two witnesses, as required.[*11]

Here, none of the deficiencies pointed out by objectant constitute a requirement contained in EPTL 3-2.1. In addition, objectant's statement, that the Will was improperly executed because Ruth did not declare to the subscribing witness that she was aware that the instrument she signed was her Will, is belied by the record. At her deposition, Joyce Jenzen averred that on the day the Will was witnessed by her, Ruth said to Jenzen, "I thank you, Joyce, for coming to witness the Will for me." Jenzen's testimony makes clear that Ruth knew that Joyce was there to witness Ruth's Will. After the Will was witnessed, Ruth thanked Joyce again and commented that she was pleased that the ritual witnessing of the Will was completed.

Finally, objectant's argument that the Will should not be admitted to Probate because Dr. Kurz could not recall the Will's execution is without merit. "It is well settled that a Will may be admitted to probate even if both witnesses cannot recall the Will's execution as long as there is other indicia which will satisfy the court's inquiry." Matter of Collins, 60 NY2d 466 (1983) (The failure of the attesting witnesses to recollect the event does not preclude the court as a matter of law from admitting the Will to probate). Here, the affidavit and deposition testimony of attesting witness Jenzen supports a finding that the decedent's Will was executed in accordance with the requirements of EPTL 3-2.1.

While this Will execution should never be cited as a paragon of how one's last Will and Testament should be prepared and executed, the Court is satisfied that the statutory requirements of EPTL 3-2.1 have been adequately satisfied.Petitioner's motion for summary judgment on the issue of due execution is granted.

Undue Influence

The objectant has the burden of proof on the issue of undue influence. Matter of Bustanoby, 262 AD2d 407, 408 (2d Dept 1999); Matter of Walther, 6 NY2d 49 (1959). The three elements of undue influence have been described as motive, opportunity, and the actual exercise of undue influence. Matter of Fiumara, 47 NY2d 845, 846 (1979). However, "[a] mere showing of opportunity and even of a motive to exercise undue influence does not justify a submission of that issue to the jury, unless there is in addition evidence that such influence was actually utilized." Matter of Walther at 55 citing Matter of Fiumara, 47 NY2d 845; Matter of Philip, 173 AD2d 543 (1991).

The legal standard regarding undue influence is a classic formulation that remains the standard in the case law: "[i]t must be shown that the influence exercised amounted to a moral coercion, which restrained independent action and destroyed free agency.... It must not be the promptings of affection; the desire of gratifying the wishes of another; the ties of attachment arising from consanguinity, or the memory of kind acts and friendly offices, but a coercion produced by importunity, or by a silent, resistless power which the strong will often exercises over the weak and infirm, and which could not be resisted, so that the motive was tantamount to force or fear." Children's Aid Socy. v. Loveridge, 70 NY 387, 394 (1877); see also Matter of Kumstar, 66 NY2d 691, 693 (1985).

Here, as in virtually all cases, motive may be assumed. And given the fact that the decedent resided in the same building with the proponent and that Ruth became dependant on Patricia as a sole source of care as she neared the end of her life, there would also presumably be opportunity to exert such influence. The Court notes the circular reasoning in finding [*12]opportunity: because it was Patricia who was there for Ruth on a day-to-day basis, drove Ruth to meet with Stetch, took Ruth to Dr. Kurz's office on December 24, 2002 and who no doubt orchestrated the second witnessing of the Will on December 26, 2002, the law assumes opportunity. However, while these facts warrant inquiry into whether the Will was the product of undue influence, it is also incumbent upon the objectant to produce at least circumstantial evidence that the proponent actually exercised undue influence.

Objectant however has submitted no evidence whatsoever of undue influence other than Diane Amaducci's observations that there must have been undue influence for Ruth to have chosen Patricia as the main beneficiary of her Will. This despite the fact that Diane admits that she did not visit or contact Ruth after her falling out with Ruth in 2001 and after she admitted that she received heirlooms and stock that became the source of Ruth's wrath after visiting with her after Ruth's stroke. The facts clearly indicate that after April, 2001 and until Ruth's death, Diane was no longer involved in the decedent's life.

Although it is not inconceivable that the proponent's devoted care of the decedent was motivated by greed, the uncontroverted proof shows that it was motivated by a friendship of many years. As such, it is difficult to sympathize with the objectant's unsubstantiated charge that the proponent wrongfully manipulated and controlled the decedent during her final years. There is no evidence that the proponent kept the decedent from receiving communications from the objectant or from anyone else. In short, it cannot be viewed as unusual that the decedent bequeathed her entire estate to a friend of many years who provided care and companionship for the last few years of her life, rather than to a relative who appears to have essentially abandoned her during this period.

Objectant argues that she has put forth sufficient circumstantial evidence to raise a triable issue of fact as to undue influence by proponent. "Of course, undue influence may . . . be proved by circumstantial evidence . . . but this evidence must be of a substantial nature." Matter of Walther, 7 NY2d at 54. The affidavit of Diane Amaducci fails to constitute any evidence that undue influence was actually exercised over the decedent. Objectant's contention that the 2002 Will resulted from undue influence is supported by only speculative allegations and not by evidence demonstrating triable issues of fact. Matter of Minervini, 297 AD2d at 424; Matter of Bustanoby, 262 AD2d 407, 408 (1999).

Finally, the Court notes that "[a]n inference of undue influence cannot be reasonably drawn from circumstances when they are not inconsistent with a contrary intent." Matter of Branovacki, 278 AD2d at 793, quoting Matter of Ruef, 180 App.Div. 203, 204 (1917); see also Matter of Walther, 6 NY2d 56. Here, the provisions in the 2002 Will are entirely consistent with the circumstantial evidence presented in this matter. The 2002 Will reflects Ruth's affection and gratitude to Patricia for her devoted daily companionship, care, and assistance to Ruth at that time and for assuming increasing burdens and responsibilities for Ruth's care in the future as her health declined. Connelly v. Conneely, 4 Misc 3d 1019(A) (Surrogate's Court Kings Cty 2004). In addition, the 2002 Will reflects Ruth's animosity and resentment toward Diane Amaducci. In short, objectant has produced no facts from which it may be inferred that undue influence was actually exerted.

Fraud [*13]

The objectant also bears the burden of proving fraud. However, the objectant must show that "the proponent knowingly made a false statement that caused decedent to execute a Will that disposed of [her] property in a manner different from the disposition [she] would have made in the absence of that statement." Matter of Clapper, 279 AD2d 730, 732 (3d Dep't 2001). Moreover, a finding of fraud must be supported by clear and convincing evidence. Simcusky v. Saeli, 44 NY2d 442, 452 (1978). In order to defeat the motion for summary judgment on the issue of fraud, the objectant must come forward with more than "mere conclusory allegations and speculation." Matter of Seelig, 13 AD3d 776, 777 (3d Dep't 2004). Indeed, to defeat a motion for summary judgment, the objectant must produce sufficient evidence to show that there is an issue of fact to the effect that the proponent made a false statement or statements to the decedent to induce her to make this Will, that the decedent believed the statement, and that without such statement or statements, the propounded Will would not have been executed. A showing of motive and opportunity to mislead is insufficient; evidence of actual misrepresentation is necessary. Matter of Gross, 242 AD2d 333, 334 (2nd Dep't 1997).

Here, the Objectant fails to present any evidence of a false statement knowingly made by the proponent. In Re Cavallo, 6 AD3d 434 (2nd Dep't 2004) (reversing Surrogate Court decision denying summary judgment on issue of fraud). As such, the proponent's motion for summary judgment on this issue is granted.

Conclusion

The objectant has offered nothing of substance to create any genuine issue of fact as to the various objections. Self-serving comments unsupported by either independent corroboration or documentary evidence are insufficient to defeat the proponent's motion for summary judgment. It appears that decedent left her property to those persons with whom she had the most significant relationship, including those who remained by her side during her final days. Proponent's motion for summary judgment is granted and the propounded Will shall be admitted to probate.

Submit Decree.

Dated: October 9, 2008__________________________________

Hon. Margarita López Torres

Surrogate Footnotes

Footnote 1: As Roger Park is a first cousin of the decedent, once removed, it is Roger Park and not Diane Amaducci who is a distributee of Ruth's estate.

Footnote 2: Objectant has presented no argument for forgery, and as such, this argument is deemed abandoned.

Footnote 3: Ms. Price renounced her bequest in order to appear as a disinterested witness.

Footnote 4: The Court is mindful that the affidavits of Patricia Moran and the affidavit of Diane Amaducci contain testimony which would be inadmissible at trial under the Dead Man's Statute, CPLR § 4519. However, the Court of Appeals has ruled that while "evidence excludable under the Dead Man's Statute should not be used to support summary judgment," evidence, otherwise inadmissible at trial, should be considered for the purpose of denying summary judgment. Phillips v. Kantor & Co., 31 NY2d 307, 313 (1972) (emphasis added); Grullon v. City of New York, 297 AD2d 261, 268 (1st Dept 2002) (citing Phillips for the proposition that evidence otherwise inadmissible at trial should be considered "for the purpose of denying summary judgment"). As such, only those portions of Ms. Moran's affidavits not barred by the Dead Man's Statute will be considered by the Court while the entirety of Ms. Amaducci's affidavit will be considered in opposition to this motion for summary judgment.