Matter of Conti

[*1] Matter of Conti 2004 NY Slip Op 51573(U) Decided on December 6, 2004 Surrogate's Court, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 6, 2004
Surrogate's Court, Bronx County

IN THE MATTER OF THE ESTATE OF OLGA CONTI, also kown as OLGA C. CLEMENTE, Deceased.



515-P/03

Lee L. Holzman, J.

This is a motion by one of the decedent's daughters, the proponent of the decedent's will, for summary judgment dismissing the objections to probate filed by the decedent's two other children, granting letters testamentary to her and dismissing the objectants' prior petition for letters of administration. The objectants attack the will on the grounds of lack of due execution, fraud and undue influence.

The decedent died at age 69 on January 8, 2003. Her distributees are three children and two granddaughters, the children of a predeceased daughter. The propounded instrument, dated December 18, 2000, bequeaths the entire estate to the proponent. A self-proving affidavit is attached to the will. The objectants had filed a petition for letters of administration prior to the filing of the probate petition.

In addition to the proponent's own sworn statement and the self-proving affidavit attached to the instrument, the motion is supported by the testimony of one of the two attesting witnesses and the attorney-draftsman who supervised the execution of the instrument but was not one of the attesting witnesses. The attorney explained that the will was executed at the decedent's home because she did not want to catch a cold that would interfere with her imminent surgery. Counsel had represented the decedent previously when she had purchased her home. He stated that he did not discuss the provisions of the will with anyone other than the decedent and that the proponent was not in the house when the will was executed. The only conversation that he recollected having with the proponent about the will was telling her that it was necessary to have two disinterested attesting witnesses present for the execution ceremony. The attorney and the attesting witness both stated that the decedent was leaving everything to the petitioner to [*2]reward her for having dutifully cared for her during her protracted illness over the last few years and that the decedent had expressed displeasure with her other two children because they would only call or visit her when they wanted something from her. They both also testified that the decedent read the will and then freely and voluntarily executed it in accord with the requirements of EPTL 3-2.1.

The proponent asserts that she is entitled to summary judgment on the issue of due execution based upon the proof adduced and on the issues of fraud and undue influence because the objectants merely rely upon surmise and conjecture which are insufficient to meet their burden of proof on these issues. The objectants contend that the proponent has failed to establish a prima facie case of due execution because she only produced one of the two attesting witnesses for the SCPA 1404 examination. However, the other attesting witness resides in Puerto Rico and the objectants have not made any application to obtain her testimony.

The objectants assert that the question of whether the will was procured by either or both undue influence and fraud must be considered in the following context: that the decedent was first operated on for pancreatic cancer on December 19, 2000, one day after signing the propounded instrument; that the petitioner began to take control of the decedent's financial affairs and health care in 1998 when she moved into the decedent's house and that this continued until the decedent died in January 2003; and that the extent of the proponent's control over the decedent included obtaining her ATM card, becoming the representative payee of her social security benefits, and obtaining the authority to act on behalf of the decedent under a power of attorney and a health care proxy.

The objectant son's wife and the objectant daughter assert in their affidavits that the proponent was further able to exercise control over the decedent by installing a "baby monitor" in the decedent's room. They allege that the proponent would usually come downstairs to the decedent's apartment whenever she heard the decedent engaged in conversation. The decedent's daughter-in-law avers that when she went into the decedent's room, the decedent would put a finger to her lips to remind her about the baby monitor. She further alleges that, commencing after the decedent's surgery in December 2000 and continuing during 2001 and 2002, the decedent on many occasions indicated that she needed to take control of her financial affairs because she knew that the proponent was spending funds for the proponent's own benefit but that the decedent was never able to regain control of her affairs. The decedent's son and his wife shared the downstairs apartment with the decedent until April 2001. The daughter-in-law states that they paid rent in cash to the proponent even though the decedent owned the home and that the proponent forced them out of the apartment by falsely claiming that they must have heard the decedent calling for help when she fell and that they failed to help her.

The objectant daughter avers that the proponent's contention that she would only communicate with the decedent when she needed something is false. She alleges that she called her mother daily and would visit her at least weekly. She asserts that the proponent would prevent her or anyone else from becoming involved with the decedent's affairs. One example that is cited is when the proponent, who was also hospitalized, learned that the objectant daughter was going to have the decedent stay in her home upon the decedent's leaving the hospital, the proponent prematurely checked herself out of the hospital so that the decedent would not go to the objectant's residence. This affiant also accuses the proponent of making numerous false [*3]statements about her. The most significant charge is that the proponent falsely accused her of forging the decedent's signature on checks. She contends that the proof that this charge is false is that although the proponent testified that the decedent had given her the forged checks and told the proponent to keep them, the proponent was unable to produce the forged checks in response to a discovery demand. The objectants also contend that the proponent's sworn statement that she did not know anything about the decedent's will until after her death is patently false in light of both the attorney's testimony that he had told the proponent to provide the attesting witnesses for the execution of the will and the proponent's testimony that she had to make arrangements for the attorney to be paid for his services in connection with the will.

The objectants assert that the decedent's alleged expressions of dissatisfaction with them, which purportedly caused her to leave nothing to them, is inconsistent with her conduct of having made substantial lifetime gifts to several members of the family in addition to the proponent. They also contend that the propounded instrument, which either provides for or results in an intestate distribution of the decedent's estate in the event that the proponent predeceased her, is inconsistent with the proponent's portrayal of the decedent's dissatisfaction with the objectants.

Summary judgment may be granted only where no material issue of fact exists (Phillips v Kantor & Co., 31 NY2d 307 [1972]; Glick & Dolleck v Tri-Pac Export Corp., 22 NY2d 439 [1968]). The movant must make a prima facie showing of entitlement to judgment as a matter or law, tendering sufficient evidence in admissible form to demonstrate the absence of any material issue of fact (Alvarez v Prospect Hospital, 68 NY2d 320 [1986]; Friends of Animals, Inc. v Associated Fur Manufacturers, Inc., 46 NY2d 1065 [1979]). Once the movant has made out a prima facie case, the burden of going forward with proof, in evidentiary form, establishing that the movant is not entitled to judgment shifts to the party opposing the motion (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 that issues of credibility may not be determined on the motion but must await the trial (Westhill Exports, Ltd. v Pope, 12 NY2d 491 [1963]; Esteve v Abad, 271 App Div 725 [1947]).

The proponent has the burden of proving due execution (Matter of Pirozzi, 238 AD2d 833 [1997]). However, a presumption that the will was properly executed arises from either the will's execution being supervised by an attorney (Matter of Herman, 289 AD2d 239 [2001]) or the will's containing an attestation clause preceding the genuine signature of the attesting witnesses (Matter of Katz, 277 NY 470 [1938]). Here, the will was supervised by an attorney and it contained an attestation clause. Nevertheless, the objectants argue that the proponent has not established a prima facie case of due execution because she has produced only one of the two attesting witnesses for an SCPA 1404 examination.

The witness that was not produced for the SCPA 1404 examination resides in Puerto Rico. Had the objectants sought to obtain the sworn testimony of the attesting witness who resides in Puerto Rico prior to the court's deciding this motion, their application would have been granted. However, the objectants neither made any such application nor sought in any manner to obtain the sworn statement of the attesting witness residing in Puerto Rico. SCPA 1405 (1) provides that the court may dispense with the testimony of an attesting witness who "cannot with due diligence be found within the state." The court holds that, notwithstanding that [*4]only one of the two attesting witnesses was produced for an SCPA 1404 examination, the proponent is entitled to summary judgment on the issue of due execution where all of the following circumstances are present: the attesting witness who was not deposed cannot be found within the state; the objectants made no effort to obtain the sworn testimony of this witness prior to the motion and did not request that a determination of the motion be held in abeyance until they attempted to obtain the testimony of this witness; the depositions of the other attesting witness and the attorney-draftsman who supervised the will's execution establish due execution; and the will contains an attestation clause and has attached to it a self-proving affidavit sworn to by both attesting witnesses, including the witness who resides in Puerto Rico.

The objectant bears the burden of proof on the issue of undue influence (Matter of Walther, 6 NY2d 49 [1959]). The proof required to satisfy this burden is set forth in Matter of Camac, 300 AD2d 11, 12 [2002], as follows:

Undue influence requires proof of 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 ***" (Matter of Walther,

6 NY2d 49,53, quoting Children's Aid Socy. v. Loveridge,

70 NY 387,394). Since undue influence is not often the

subject of direct proof "[i]t can be shown by all the facts

and circumstances surrounding the testator, the nature

of the will, his family relations, the condition of his health

and mind, his dependency upon and subjection to the

control of the person supposed to have wielded the

influences, the opportunity and disposition of the person

to wield it, and the acts and declarations of such person"

(Matter of Anna, 248 NY 421,424, quoting Rollwagen v.

Rollwagen, 63 NY 504, 519).

Here, the objectants have presented sufficient proof to be entitled to their day in court on the issue of undue influence. The proponent had undertaken the confidential roles of assisting the decedent, who was suffering with cancer, with her finances and health care needs. The objectants presented proof that the proponent monitored the decedent's conversations and would not allow others to assist her with her health care needs. Although the proponent professed to have no knowledge about the decedent's will until after the decedent's death, she did appear to know that the will had been executed. Moreover, her alleged lack of involvement or knowledge about the will might be viewed as being inconsistent with her complete involvement with the decedent's other affairs and finances. Furthermore, proof was adduced to the effect that the proponent was successful in having the decedent's son removed from the decedent's apartment and that the decedent was never able to gain control over her finances even though she had expressed a desire to do so. The sworn statements of the decedent's two daughters reflect that there is no love lost between them. The provisions of the propounded instrument benefitting solely the proponent might be judged as being inconsistent with the decedent's propensity to give [*5]substantial lifetime gifts to several members of her family. There are also controverted issues with respect to whether the proponent made false statements about the objectants.

To establish fraud, the objectants must show that the proponent made a false statement that caused the decedent to execute a will that disposed of her property different from the disposition she would have made but for the false statement (Matter of Coniglio, 242 AD2d 901 [1997]). Here, the objectants allege that false statements were made about them. The decedent's daughter-in-law asserts that she and the decedent's son were falsely accused of ignoring the decedent's pleas for help when she fell. The objectant daughter avers that she was falsely accused of forging the decedent's signature on checks. She also alleges that the proponent made several other false statements about her.

The fraud case might very well be more tenuous than the undue influence case. No direct proof has been presented that the decedent ever considered making a will with different provisions than those contained in the propounded instrument. Moreover, the proponent contends that it was the decedent and not she who accused the objectant daughter of forgery. Nevertheless, it was the proponent who testified that the decedent had given her the forged checks and then was unable to produce any such checks. Furthermore, there is evidence that the decedent made substantial lifetime gifts to other members of the family. It does not appear appropriate to deny the objectants the opportunity to further develop their allegations of fraud at the trial in light of the fact that to grant summary judgment on the issue of fraud would not significantly reduce the proof adduced at the trial. That is so because the alleged false statements appear to be relevant on the issues of both undue influence and fraud.

For the reasons stated above, the motion for summary judgment is granted on the issue of due execution and denied on the other two issues. Any party may have the matter placed upon the ready for trial calendar of the court by complying with Uniform Rules 207.29 and 207.31.

Settle order. SURROGATE