Matter of Joules

[*1] Matter of Joules 2012 NY Slip Op 51244(U) Decided on July 10, 2012 Sur Ct, Monroe County Calvaruso, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 10, 2012
Sur Ct, Monroe County

In the Matter of the Estate of Stewart Joules, Deceased.



2011-1710



Marcia Havens, Esq., Churchville, New York, Counsel for the Estate.

Mark J. Moretti, Esq., Phillips Lytle, LLP, Rochester, New York, Trial Counsel for Estate.

Gerald Manioci, Esq., Rochester, New York, Counsel for Irene Myers, Rebecca Cornetta, and Ellen Joules Schultz, Objectants.

Edmund A. Calvaruso, J.

Stewart Joules ("Decedent") died on May 30, 2011, survived by three sisters, Irene Myers, Rebecca Cornetta, and Ellen Joules Schultz. In the Decedent's Last Will and Testament, dated May 23, 2011, the Decedent left his residence to Kraig and Sandra Wall, and all of his tangible personal property and the residuary to Jacquelyn Eadie and another friend, Thomas Glanville in equal shares. Jacquelyn Eadie was the nominated executor.

Jacquelyn Eadie (the "Proponent") filed a Petition for Probate on July 14, 2011, and on July 15, 2011, preliminary letters testamentary were issued. At the court date of September 8, 2011, the three sisters of the Decedent (the "Objectants"), represented by Gerald Manioci, Esq., appeared and demanded a hearing pursuant to SCPA 1404. The hearing was held October 18, 2011, at which the testimony of the two witnesses to the Will was given. The Will was drafted and executed by Marcia Havens, Esq., during the Decedent's final hospitalization. Ms. Havens and her secretary were the witnesses. Ms. Havens met the Decedent for the first time approximately three days prior to the execution of the Will, and while she testified that she spent time in private conversation with the Decedent prior to the drafting and execution of the Will, they had not had prior dealings. The Decedent died of cancer, and at the time of the Will's execution, it is undisputed that he was on various medications, lethargic, and prone to sleepiness. However, Ms. Havens testified that at the time of her meetings with the Decedent, she found him to be sufficiently alert and oriented.

The Decedent's sisters filed formal Objections to the Probate petition on October 24, 2011, alleging that the Will was not properly executed, that the Will was the product of fraud and undue influence, and that the Decedent lacked the testamentary capacity to make a Will. Discovery was thereafter commenced. However, the parties disputed the appropriate scope of the deposition testimony, and the Objectants refused to answer certain questions asked by the Proponent.

On February 28, 2012, the Proponent filed a Motion for Summary Judgment dismissing the objections and admitting the Will to probate, and seeking costs and counsel fees pursuant to SCPA 2302(3)(a), or, in the alternative, an Order directing the Objectants to answer deposition questions [*2]they were directed by their attorney not to answer, along with sanctions regarding the failure to answer. On March 12, 2012, the Objectants field a Cross-Motion for Summary Judgment.

OPINION

Summary judgment is proper in a contested probate proceeding where a prima facie case for probate has been made and the objectant has failed to raise a triable issue of fact. Matter of Coniglio, 242 AD2d 901, 663 N.Y.S.2d 456 (4th Dep t 1997); Matter of Finnochio, 270 AD2d 418, 704 N.Y.S.2d 634 (2d Dep't 2000); Matter Van Patten, 215 AD2d 947, 627 N.Y.S.2d 141 (3d Dep't 1995). While summary judgment should be granted only where it is clear that no triable issue of fact exists, the objectant opposing summary judgment must present affirmative proof that their claims are capable of being established at trial. See, e.g., Matter of Seelig, 13 AD3d 776, 786 N.Y.S.2d 610 (3d Dep't 2004), lv. denied, 4 NY3d 707 (2005); Matter of Leach, 3 AD3d 763, 772 N.Y.S.2d 100 (3d Dep't 2004).

A.Due Execution

The proponent of a will has the burden of proving that the propounded instrument was duly executed in conformance with the statutory requirements. See EPTL 3—2.1(a); Matter of Collins, 60 NY2d 466, 468, 470 N.Y.S.2d 338 (1983); Matter of Rosen, 291 AD2d 562, 737 N.Y.S.2d 656 (2d Dep't 2002). It is well settled that the attorney-draftsperson's supervision of the will's execution creates a presumption that the will is properly executed. Matter of James, 17 AD3d 366, 792 N.Y.S.2d 601 (2d Dep't 2005). An attestation clause and self-proving affidavit give rise to a further presumption of compliance with the statutory requirements. See, Matter of Clapper, 279 AD2d 730, 718 N.Y.S.2d 468 (3d Dep't 2001); Matter of Moskoff, 41 AD3d 481, 836 N.Y.S.2d 708 (2d Dep't 2007).

Here, the Proponent made a prima facie showing of entitlement to summary judgment dismissing the objection based on lack of due execution by submitting the transcripts of the testimony of the attorney-draftsperson, who supervised the execution ceremony and acted as an attesting witness, along with her secretary. The testimony demonstrates that the statutory requirements for due execution were satisfied. In response, the Objectants raised no issue of fact. See, e.g. Matter of Rottkamp, 95 AD3d 1338, 945 N.Y.S.2d 394, 396 (2d Dep't 2012). Accordingly, the objection to Probate of the Will based on lack of due execution must be dismissed.

B.Fraud and Undue Influence

An objectant seeking to establish that a will is the product of fraud must demonstrate by clear and convincing evidence that the proponent of the will "knowingly made false statements to the testator to induce the testator to make a will disposing of his or her property in a manner contrary to that which the testator would have effected." Matter of Rottkamp, 95 AD3d 1338, 945 N.Y.S.2d 394, 396 (2d Dep't 2012); Matter of Marin, 82 AD3d 982, 983, 918 N.Y.S.2d 591 (2d Dep't 2011).

Similarly, to deny probate to a will on the ground of undue influence, "it must be shown that the influence exercised amounted to a 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." Matter of Walther, 6 NY2d 49, 188 N.Y.S.2d 168, 172 (1959); see also, Matter of Bush, [*3]85 AD2d 887, 888, 446 N.Y.S.2d 759, 761 (4th Dep't 1981). "No inference of undue influence may be drawn from the fact that proponents had the opportunity and motive, absent evidence that such influence was actually utilized." Matter of Bush, 85 AD2d 887, 889, 446 N.Y.S.2d 759, 761 (4th Dep't 1981); Matter of Fiumara. 47 NY2d 845, 418 N.Y.S.2d 579 (1979); Matter of Mildred M.J., 43 AD3d 1391, 1392, 844 N.Y.S.2d 539, 542 (4th Dep't 2007); Matter of Vukich, 53 AD2d 1029, 1030, 385 N.Y.S.2d 905 (4th Dep't 1976), aff'd., 43 NY2d 668 (1976).

The Objectants have failed to raise a triable issue of fact suggesting that the Will was the product of fraud or undue influence. No evidence was submitted proving that false statements were made to the Decedent, and while some conclusory statements regarding the influence of Jacquelyn Eadie were made, there is no proof that she or the other three beneficiaries of the Will unduly influenced the Decedent. It is undisputed that the Objectants were not in contact with the Decedent in the years preceding his death, and therefore, would have no knowledge of the nature of his relationships with the beneficiaries. Accordingly, this objection to the Probate of the Will is dismissed.

C.Testamentary Capacity

The proponent of a will has the burden of proving testamentary capacity at the time the will was executed. However, as the Court of Appeals has stated, "less capacity is required to enable one to make a will than to make other contracts." Matter of Coddington, 281 A.D. 143, 146, 118 N.Y.S.2d 525, 528 (3d Dep't 1952), aff'd 307 NY 191 (1954). Once a decedent's testamentary capacity is challenged, the proponent of the will must demonstrate only that the decedent, "understood (1) the nature and consequences of executing a will, (2) the nature and extent of his property, and (3) the natural objects of his bounty and the relationship to them." Matter of Castiglione, 40 AD3d 1227, 837 N.Y.S.2d 360 (3d Dep't 2007); Matter of Ruparshek, 36 AD3d 998, 828 N.Y.S.2d 623 (3d Dep't 2007); Matter of Roberts, 246 A.D. 87, 283 N.Y.S. 50 (4th Dep't 1935); see also Matter of Kumstar, 66 NY2d 691, 692 (1985); Matter of Delmar, 243 NY 7 (1926).

The medical records admitted into evidence state that the Decedent was experiencing an altered mental status upon his admission to the hospital on May 13, 2011. However, on May 18, 2011, the medical records reflect that his mental status was resolved. All that is required is that the testator experience a "lucid interval" of adequate capacity to execute a valid will, and that interval can occur contemporaneously with a diagnosis of an altered mental state. Matter of Petix, 15 Misc 3d 1140 (A), 841 N.Y.S.2d 822 (Surr. Ct. Monroe Co. 2007); Matter of McCloskey, 307 AD2d 737, 738 (4th Dep't 2003). Ms. Havens testified that she made sure that the Decedent reviewed and executed his Will during such a lucid interval. In response, the Objectants submitted a large volume of circumstantial evidence pertaining to the Decedent's medical condition and mental status during the general time surrounding the Will's execution. This proof is not sufficient without direct testimony as to the Decedent's capacity at the time the Will was executed. See, e.g. Matter of Brownstone, 289 AD2d 97, 735 N.Y.S.2d 78(1st Dep't 2001); Matter of McCloskey, 307 AD2d 737, 763 N.Y.S.2d 187 (4th Dep't 2002).

The Objectants particularly raise the issue of the Decedent's alleged lack of knowledge of the nature and extent of his property. It is undisputed that in their conversation regarding his estate and assets, the Decedent failed to inform Ms. Havens of his five classic cars and over 100 hockey jerseys, or provide any specific provision for these items in his Will.No proof was submitted to the Court as to the value, or even existence of these items, but Objectants allege that these items comprise a [*4]significant portion of the Decedent's estate, and therefore, the Decedent's failure to include them evinces a lack of testamentary capacity.

However, there is no evidence that this testamentary scheme by the Decedent was unreasonable or out of character. The Decedent met Ms. Eadie through their mutual love of hockey, and the two attended numerous games together. It is reasonable to assume that the Decedent felt that she would enjoy owning the jerseys. Further, it is undisputed that the Decedent was estranged from his family. The Decedent did make a specific bequest of his house, and simply left everything else he owned to the residuary beneficiaries. This is not an unusual testamentary scheme, and due to its simplicity, there was no need for him to specifically itemize each item of personal property.

It is very rare for a court to deny probate on the grounds of lack of testamentary capacity where, as here, the attesting witnesses and attorney-draftsperson testify as to the capacity of the decedent. See, e.g. Matter of Vukich, 53 AD2d 1029, 385 N.Y.S.2d 905 (4th Dep't 1976); Matter of Chiurazzi, 296 AD2d 406, 744 N.Y.S.2d 507 (2d Dep't 2002); Matter of Van Patten, 215 AD2d 947, 627 N.Y.S.2d 141 (3d Dep't 1995). Further, it is not necessary for a testator to review each item in his possession to establish the requisite knowledge of the nature and extent of his property. See, e.g. Matter of Bush, 85 AD2d 887, 888, 446 N.Y.S.2d 759, 761 (4th Dep't 1981); Matter of Walker, 80 AD3d 865, 867, 914 N.Y.S.2d 379, 382 (3d Dep't 2011). Based on the record, it is determined that no genuine issue of fact exists as to the Decedent's competence to execute a will, and this objection must therefore be dismissed.

Therefore, in accordance with the above decision, it is hereby

ORDERED, ADJUDGED and DECREED, that the Proponent's Petition for Summary Judgment is granted in all respects, and the Objections to Probate are hereby dismissed; it is further

ORDERED, ADJUDGED and DECREED, that the Objectants' Cross-Motion for Summary Judgment is hereby dismissed; and it is further

ORDERED, ADJUDGED and DECREED, that the instrument offered for Probate herein be, and the same hereby is admitted to probate as the Last Will and Testament of the above-named Decedent, valid to pass real and personal property, that the Will be recorded and that Letters Testamentary issue to Jacquelyn A. Eadie upon property qualifying for such office, and that the Preliminary Letters Testamentary issued to Jacquelyn A. Eadie are hereby revoked. [*5]

July 10, 2012

Hon. Edmund A. Calvaruso, Surrogate

ENTER: