Matter of Gary

[*1] Matter of Gary 2012 NY Slip Op 51937(U) Decided on October 12, 2012 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 12, 2012
Sur Ct, Bronx County

In the Matter of the Estate of Elizabeth Gary, Deceased.



2004-749/P



Radin & Kleinman, Esqs. (Abraham N. Kleinman, of counsel) for Charles Owen, movant-objectant

Elliot S. Schlissel, Esq., (Michael J. Ciaravino, of counsel) for Shirley Williams, respondent-proponent

Lee L. Holzman, J.

In this probate proceeding the objectant son seeks summary judgment denying probate to the propounded instrument, dated July 31, 2002, on the grounds that the decedent lacked testamentary capacity and the instrument was a product of undue influence exerted upon the decedent by the proponent. The proponent daughter, the sole beneficiary and nominated executor under the instrument, asserts that summary judgment cannot be granted because material issues of fact exist. To the extent that prior to the filing of the instant motion there was an unresolved issue with regard to whether the objections in this proceeding were timely interposed, that issue is now resolved by the court's holding that the delay, if any, in filing the objections is excused and the time to serve and file objections is extended to the time that they were served and filed.

The decedent died on January 20, 2004 at the age of 80. Her distributees are six children, including the objectant and proponent, and five grandchildren. Three of the grandchildren were minors when the proceeding was instituted but have since attained majority. Objections were filed on the former infants' behalf by a guardian ad litem during their infancy and they are now represented by the objectant's counsel. An attorney drafted and supervised the execution of the two-page instrument which contains an attestation clause. The two attesting witnesses are the attorney's wife and a doctor who had offices in the same building as the attorney. The attesting witnesses also executed a self-proving affidavit. The probate petition lists a three-family residence valued at $325,000 as the only asset of the estate.

The objectant notes that the decedent suffered a stroke in June, 2000, returned [*2]home after a period in the hospital, but thereafter was hospitalized intermittently for the rest of her life. The decedent and two adult sons occupied one of the three apartments in the realty, the objectant's family occupied another, and the proponent resided in the third apartment. It is undisputed that the proponent, a home health aide, left her job and became the primary caregiver for the decedent and the decedent's husband prior to the husband's death in 2002. The proponent became the decedent's attorney-in-fact through a power of attorney, paid the decedent's bills, and brought her to her medical appointments. It is also undisputed that the proponent and the decedent took a taxi to the attorney's office, and on that date, the attorney ascertained the decedent's testamentary scheme, drafted the instrument and supervised its execution.

The attorney-drafter testified at his deposition that he had known the decedent prior to drafting the instrument. The attorney also acknowledged that previously he had performed some real estate work for some of the decedent's family, possibly including the decedent, but did not remember the details. He had also represented the proponent and one of her children in a personal injury action. The objectant points to the portion of the attorney's testimony where he indicated that he could not definitively state whether or not the decedent knew either the nature and extent of her assets or the names of all of her children. The objectant also notes that the attorney testified that at times the proponent explained to the decedent what he was saying and the attorney had some "difficulty" understanding the decedent. The proponent counters with the portion of the testimony where the attorney unequivocally stated that it was the decedent who gave him all of the relevant information reflected in the instruction sheets he filled out and used to prepare the will. The attorney further testified that he did not inquire about the extent of the decedent's assets because she clearly indicated that she wanted to leave everything to the proponent. The doctor attesting witness stated during his deposition that he did not read the self-proving affidavit he signed. Nonetheless, in response to a question as to whether the decedent spoke clearly, the doctor answered she knew what day it was and what she was doing.

In further support of his motion for summary judgment on the issue of testamentary capacity, the objectant annexes the following medical records and notes that: (1) a medical record dated June 21, 2000 states the decedent "require[d] assistance from staff and family in decision making;" (2) a July 27, 2000 notation indicates the decedent "ha[d] cognitive deficits and require[d] supervision at all times;" (3) the hospital discharge report dated August 17, 2000 states the decedent suffered from "dysphasia," which rendered her speech "slurred and unintelligible;" and, (4) records dated January 1, 2004 reflect the decedent was disoriented as to place and time (but not person), confused, could only respond to questions by opening her eyes and making eye contact and that the decedent's "speech doesn't make sense." The objectant also relies on the affidavit of his spouse who asserts that after the stroke, the decedent suffered from

"dementia, confusion and forgetfulness. Her vision, hearing and cognition were impaired. . . her days were spent for the most part in bed staring blankly and silently at the walls or at the blaring television set. . . As time went on, she lost her capacity to even recognize her own children."

That affiant also alleges that because many family members lived in the three-family [*3]house, they visited the decedent regularly but "attempts at conversation were met with an incomprehensible, stony silence." The objectant contends that his submissions conclusively demonstrate that the decedent lacked testamentary capacity.

With respect to the branch of the motion seeking summary judgment on the ground of undue influence, the objectant contends that a confidential relationship between the proponent and decedent "must be imputed," and that this "relationship gives rise to an inference of undue influence." In support of this proposition, he relies on: (1) the proponent's management of the decedent's personal and financial affairs, including holding the power of attorney; (2) the decedent's dependence on the proponent for her medical needs; and, (3) that proponent brought the decedent to the attorney's office and was present at the drafting and execution of the propounded instrument.

In opposition to the motion, the proponent contends that there are questions of fact precluding summary judgment on the issue of testamentary capacity. She notes that many of the medical records, including some of the same reports that the movant cites, indicate the decedent was alert. Among these are: (1) the July 27, 2000 report which, on the same date cognitive deficits were noted, states that the decedent was "verbally responsive;" (2) the August 17, 2000 discharge report which states that the decedent was a "77 year old female who is alert;" (3) records from December 2003 which state that the decedent was alert and oriented; and, (4) the January 1, 2004 report which indicates decedent was confused but also indicates that she was "alert and responds to questions." The proponent also notes that all the submitted medical records are dated from two years before to six months or two years after the will was executed, and none are dated around the date of the will execution ceremony. Although the proponent admits that the decedent's stroke caused physical disabilities, she states that the decedent had testamentary capacity as the decedent was still "clearly engaged in conversation, was aware of her surroundings, was aware of the persons she was speaking to, and was clearly engaged" in the meeting with the attorney-drafter.

The proponent also contends that the objectant failed to meet his burden of proof on the issue of undue influence. She notes the attorney-drafter stated that the decedent was able to clearly communicate her wishes and he affirmatively testified that it was the decedent, and not the proponent, who dictated the terms of the will. During her deposition, the proponent testified that after the decedent expressed a desire to create a will, another daughter of the decedent obtained sample forms that the decedent used to create a document, and the proponent brought that document to the attorney-drafter to review. At that meeting, the attorney-drafter indicated the document was not a valid will and suggested that the decedent be brought to his office to prepare a proper will. The proponent avers that it was natural for the decedent to favor her as she quit her job to take care of the decedent and there is no evidence of coercion.

Summary judgment cannot be granted unless it clearly appears that no material issues of fact exist (see Phillips v Joseph 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 (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; Friends of Animals, Inc. v Associated Fur Mfrs. [*4]Inc., 46 NY2d 1065 [1979]). When the movant makes out a prima facie case, the burden shifts to the party opposing the motion to produce evidentiary proof, in admissible form, sufficient to establish the existence of material issues of fact (see 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 (see F. Garofalo Elec. Co. v New York Univ., 300 AD2d 186 [2002]).

The proponent has the burden of proving by a preponderance of the evidence that the decedent possessed testamentary capacity by demonstrating that she: (1) understood the nature and consequences of executing a will; (2) knew the nature and extent of the property being disposed of; and, (3) knew the natural objects of her bounty and her relations with them (see Matter of Kumstar, 66 NY2d 691, 692 [1985]; Matter of McCloskey, 307 AD2d 737 [2003], rearg denied 309 AD2d 1313 [2003], lv denied 100 NY2d 516 [2003]). Where there is conflicting evidence or the possibility of drawing conflicting inferences from undisputed evidence, the issue of capacity is one for the jury (see Matter of Kumstar, 66 NY2d at 692). In determining whether the decedent understood the nature and consequences of executing a will, the decedent "need not have a lawyer's understanding of the will and the legal terms used in it . . . [but she] must understand the plan and effect of the will" (PJI 7:48). Nonetheless, less capacity is required to execute a will than a contract or any other legal document (see Matter of Coddington, 281 App Div 143 [1952], affd 307 NY 181 [1954]). A testator does not lack testamentary capacity merely because she was suffering to some extent "the progressive deterioration of old age" (PJI 7:51) or was afflicted by weakness or disease (PJI 7:53), provided that she possessed the three elements of testamentary capacity enumerated in Matter of Kumstar (66 NY2d at 692).

As a contemporaneous self-proving affidavit of the attesting witnesses stating that the decedent was of "sound mind, memory and understanding and not under any restraint or in any respect incompetent to make a will" is annexed to the propounded instrument, the proponent met her initial burden of establishing the decedent's testamentary capacity (see Matter of Schlaeger, 74 AD3d 405 [2010]; Matter of Clapper, 279 AD2d 730 [2001]). Although the medical records relied on by the movant show that after the decedent's stroke in June 2002 there were several days when she appeared to lack the requisite capacity to execute a will, they also indicate that on numerous occasions she was alert, oriented and responsive. None of those records are close enough to July 31, 2002, the date the propounded instrument was executed, to conclusively demonstrate that decedent lacked testamentary capacity on that date. Similarly, statements made during the deposition of the attorney who prepared and supervised the execution of the will on that date, considered apart from the balance of his testimony, arguably support the respective, and contradictory, positions of the objectant and the proponent. The only dispositive provision in the propounded instrument is easy to understand, to wit, the entire estate is bequeathed to the proponent. Thus, questions of fact exist which preclude the granting of summary judgment as to testamentary capacity.

The objectant has the burden of demonstrating by a preponderance of the evidence the exercise of undue influence (see Matter of Walther, 6 NY2d 49 [1959]; Matter of Katz, 192 AD2d 327 [1993]; PJI 7:55). A finding of undue influence requires [*5]proof of "a moral coercion, which restrained independent action and destroyed free agency. . ." (Matter of Evanchuk, 145 AD2d 559, 561 [1988], quoting Children's Aid Soc. v Loveridge, 70 NY 387, 394 [1877]; see also Matter of Ryan, 34 AD3d 212 [2006], lv denied 8 NY3d 804 [2007]; Matter of Cavallo, 6 AD3d 434 [2004]). To meet the burden of proving undue influence, the objectant must establish not only motive and opportunity, but also the actual exercise of undue influence, either through direct evidence or through significant circumstantial evidence of specific instances in which the undue influence was actually exercised (see Matter of Walther, 6 NY2d at 55; Matter of Dubin, 54 AD3d 945 [2008]; Matter of Ryan, 34 AD3d at 212; Matter of Fellows, 16 AD3d 995 [2005]). The burden of going forward may shift where a confidential relationship exists between the testator and the beneficiary alleged to have exerted undue influence over the testator. After the objectant establishes a confidential relationship, the beneficiary "is required to offer evidence to explain the provision benefitting (her)," and the jury may, although not required to do so, "infer that undue influence was exercised, unless on the basis of all of the evidence in the case," the jury concludes that the testator "freely and knowingly executed the will" (PJI 7:56; see also Matter of Neenan, 35 AD3d 475 [2006]). The fact that the testator and the beneficiary accused of undue influence are members of the same family, without more, is insufficient to establish the existence of a confidential relationship from which undue influence may be inferred (see Matter of Zirinsky, 43 AD3d 946 [2007], lv denied 9 NY3d 815 [2007]; Matter of Camac, 300 AD2d 11 [2002]). "The mere fact that one is the sole legatee or sole distributee is not in itself evidence of the exercise of undue influence" (Matter of Walther, 6 NY2d at 55).

Here, assuming argueno that the proponent was in a confidential relationship with the decedent as she was the decedent's primary caretaker and the proponent, as the decedent's attorney-in-fact, managed her financial affairs, the court nevertheless finds that a trier of the facts, based upon all of the circumstances presented herein, could also infer that the will was not the product of undue influence arising from the confidential relationship between the decedent and the proponent. It appears that at least one of the decedent's children other than the proponent knew in advance that the decedent wanted to make a will and that family member attempted to assist the decedent in making that testamentary disposition. Furthermore, most of the decedent's distributees have not objected to the admission of the instrument to probate. In short, a jury might find it natural for a parent to devise her residence to the one child who gave up her job so that she could care for the decedent after she suffered a stroke. Thus, issues of fact exist with regard to the undue influence objection.

Accordingly this decision constitutes the order of the court denying the objectant's motion for summary judgment. Any party may place this proceeding on the court's ready for trial calendar upon compliance with the applicable Uniform Rules for Surrogate's Court (22 NYCRR) §§ 207.29 and 207.31.

The Chief Clerk shall mail a copy of this decision and order to all counsel and to the former guardian ad litem.

Proceed accordingly.



SURROGATE [*6]