Matter of Petix

[*1] Matter of Petix 2007 NY Slip Op 51085(U) [15 Misc 3d 1140(A)] Decided on May 29, 2007 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 29, 2007
Sur Ct, Monroe County

In the Matter of the Probate of the Will of Leonard T. Petix, Deceased.



2005-1899



Richard Glen Curtis, for the Petitioner, Thomas Petix.

John L. DeMarco, for the Objectant, Anne Sammler.

Frank B. Iacovangelo, Public Administrator for Monroe County, State of New York.

Edmund A. Calvaruso, J.

Decedent died on April 29, 2005, leaving a last will and testament dated November 2, 2004. His son and sole surviving child, Thomas Petix (petitioner), is the will's executor and sole beneficiary. Objectant is the decedent's granddaughter, the daughter of a predeceased child. She has filed objections to the probate of the will, stating lack of testamentary capacity, lack of due execution, and undue influence. She also seeks revocation of Petitioner's letters on the basis that he has been convicted of a felony. On November 29, 2006, petitioner brought a motion for summary judgment to dismiss objectant's objections to the will and to issue a decree of probate.

OPINION

Summary relief in contested probate proceedings is proper where a prima facie case for probate has been made and the objectant has failed to raise a triable issue of fact. See, In re Finnochio, 270 AD2d 418 (2000). The burden of proving undue influence generally belongs to the objectant. Matter of Eckert, 93 Misc 2d 677 (1978); Matter of Hayes, 49 Misc 2d 152 (1966). However, the existence of additional factors can affect this burden. Where a confidential relationship exists between the decedent and the perpetrator, an inference can arise that undue influence existed. In re Putnam, 257 NY 140 (1931), Matter of Bartel, 214 AD2d 476 (1995). This comes from the doctrine of constructive fraud, as explained in Connelly v. Conneely:

where a confidential or fiduciary relationship exists between the decedent-donor and the defendant-donee so that they do not act from position of equality, only slight evidence is required to shift to the defendant-donee the burden of proving by clear and satisfactory evidence that the transfer of the claimed gift was freely and voluntarily made and that it did not acquire the decedent's property by fraud, undue influence or coercion. 4 Misc 3d 1019A (2004).

After the evidence presented has shifted the burden, the proponent of the will must then offer an explanation for the gift, which is typically a fact-based inquiry. Matter of Eckert, 93 Misc 2d 677 (1978).

Objectant argues that the inference of undue influence exists here. The only allegation objectant makes to support this, however, is the fact that petitioner was an attorney-in-fact for the [*2][*3]decedent. This is insufficient to create the inference for multiple reasons. A power of attorney creates a fiduciary relationship, one which can rise to the level of a confidential relationship, such as that between doctor/patient, attorney/client, trustee/beneficiary, but only where the traditional power dynamic of the confidential relationship is also present. For the undue influence inference to apply, the testator must have been "dependent upon and subject to the control of the other party", In re Smith, 95 NY 516 (1884). This is especially true where the parties are in a close family relationship, where typically the inference would not be applicable since "the sense of family duty is inexplicably intertwined in [such a ] relationship which, under the circumstances counterbalances any contrary legal presumption." In re Walther, 6 NY2d 49, 56 (1959). Therefore, "close family ties may negate the presumption of undue influence that would otherwise arise from a confidential or fiduciary relationship". Connelly v. Conneely, 4 Misc 3d 1019A (2004). Also, for the inference to apply, there must be some evidence that the confidential relationship was used in the alleged acts. In re Bartel, 214 AD2d 476 (1995), In re Walther, 6 NY2d 49 (1959).

Where objectant is asserting that the facts of the case must dictate that the inference will apply and thus the burden of proof will shift, the objectant is responsible for bringing forth evidence of those facts. Objectant has alleged testator's dependency upon the proponent, however this allegation is unsubstantiated with evidence. Petitioner's admission that decedent had no close friends in Rochester and no contact with his neighbors does not equate to seclusion and control of the decedent, as objectant argues. Case law's requirement that a testator be dependent upon and secluded by a perpetrator of undue influence is a high one. Objectant is seeking this court to read in an inference of undue influence among family members with filial ties who are the natural objects of each other's bounty. To do so requires evidence of a glaring inequality in the suspect relationship; an inequality which in and of itself practically demands a conclusion that the family tie was completely superseded by the power dynamic in the relationship. Objectant has not offered any corresponding evidence to achieve this. There is no suggestion of moral coercion, no evidence to show that decedent was dependent upon petitioner, no allegation that decedent's relative seclusion in his final years were encouraged, created or capitalized upon by the petitioner. In fact, decedent's seclusion itself is arguable, since objectant admits to visiting her grandfather and being in contact with him, before and after her mother's death. Therefore the court declines to read an inference of undue influence to the facts of this case, and objectant retains the burden of proof on the issue.

The standard for undue influence is a high one for a will contestant to meet. It amounts to an interference beyond mere persuasion, encouragement or suggestion. As caselaw states,

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. Children's Aid Society of the City of NY v. Loveridge, 70 NY 387, 394.

which requires proof that the perpetrator of the undue influence has imposed completely his own [*4][*5]will upon that of the testator. This is a much stronger factual requirement than proving influence, opportunity or encouragement. Objectant must prove, by a preponderance of the evidence, that the perpetrator had both the motive and opportunity to exert influence, and such influence was actually exercised. Matter of Fiumara, 47 NY2d 845, 846 (1979); In re Walther, 6 NY2d 49 (1959). Objectant must, at a minimum, make a showing of actual acts of undue influence, including time and place of the occurrence(s). Matter of Fiumara, 47 NY2d 845, 846 (1979); Matter of Friedman, 26 AD3d 723, 725-726 (2006).

Taking all facts in objectant's favor, objectant has shown that testator was suffering from a disease of diminished mental capacity (Objectant's Exhibits A & B), that petitioner was a fiduciary for the decedent based upon his execution of a power of attorney (Objectant's Exh. J), and that petitioner was involved in transporting the decedent to his attorney's office to change his will (Objectant's Exh. E). However, even accepting all of these allegations as fact, objectant could not prevail in this litigation because as a matter of law her proof is insufficient: a showing of an actual exercise of undue influence must be made. Matter of Fiumara, 47 NY2d 845, 846 (1979); Matter of Friedman, 26 AD3d 723, 725-726 (2006). There is no evidence here of any specific acts where the alleged influence occurred. In fact, the facts show that at a critical time for the exertion of such influence (while at the lawyer's office to execute the will) decedent asked petitioner for his thoughts on the matter and petitioner told him that it was his own choice to make. (Objectant's Exh. E). Objectant has provided proof of petitioner's motive, opportunity and questionable character, but the law has stated that proof of these factors alone is insufficient to support a finding of undue influence. In re Walther, 6 NY2d 49 (1959), citing Cudney v. Cudney, 68 NY 148, 152.

Though undue influence is typically proved by circumstantial evidence rather than direct evidence, In re Walther, 6 NY2d 49 (1959), this does not preclude summary judgment where a material issue of fact has not been shown. In fact, it is proper for the Surrogate to issue summary judgment where objectant has not made out a prima facie case of undue influence. In re Minasian, 149 AD2d 511 (1989); In re Schaffer, 148 AD2d 540 (1989). Where a reasonable conclusion other than undue influence is supported by the facts, it is improper to conclude that undue influence existed:

[undue influence] may be proved by circumstantial evidence but the circumstances must lead to it not only by a fair inference but as a necessary conclusion. To avoid the will of a competent testator on the ground of undue influence, the contestant must show facts entirely inconsistent with the hypothesis of the execution of the will by any means other than undue influence. In Re Will of Henderson, 253 AD 140 (1937), emphasis added.

The court finds that objectant has not raised a material issue of fact with regard to the issue of undue influence. Her proof on the fundamental factors of the issue, usage of confidential relationship to achieve influence, and time/place of the occurrence of the influence, is markedly absent. Accordingly on this issue summary judgement is granted.

LACK OF TESTAMENTARY CAPACITY[*6][*7]

Testamentary capacity is the petitioner's burden. In re Kumstar, 66 NY2d 691 (1985). The capacity requirement to execute a will is a minimal standard, it is lower than the requirement for other legal documents: "less capacity is required to enable one to make a will than to make other contracts". In re Coddington's Will, 281 AD 143 (1952). Capacity is evaluated by three factors: whether decedent understood the nature and consequences of executing a will, whether she knew the nature and extent of the property she was disposing of, and whether she knew those who would be considered the natural objects of her bounty and her relations with them. Matter of Friedman, 26 AD3d 723 (2006); In re Estate of Slade, 106 AD2d 914 (1984); In re Kumstar, 66 NY2d 691 (1985). Petitioner has provided a prima facie case of capacity: decedent himself sought out the creation of the new will presumably prompted by the death of this daughter. His awareness of this loss, its effect on his testamentary plan and the subsequent inspiration to contact an attorney and create a new will reveal all three factors required for capacity. Moreover the will was witnessed by the attorney draftsperson and was self-proving, which creates a presumption of testamentary capacity. In re Estate of Johnson, 6 AD3d 859 (2004); Matter of Friedman, 26 AD3d 723 (2006).

Objectant has put forth the following proof regarding decedent's capacity: a medical note by a Dr. Blackburn, dated 12/19/02, which stated that decedent was demented to the point where his driving was impaired (Objectant's Exh A), and two police reports, one where decedent had lost his car, and one where decedent had lost his wallet (Objectant's Exh C). Taking the facts in the light most favorable to the objectant, the proof does show that decedent was suffering from dementia. However, a dementia diagnosis and lack of testamentary capacity are not one in the same. Dementia or Alzheimer's, in and of itself, is not proof of lack of capacity. "Proof that a decedent suffered from progressive dementia when a will was executed is not necessarily inconsistent with testamentary capacity and does not alone preclude a finding thereof". Matter of Friedman, 26 AD3d 723, 725 (2006); In re Ruso, 212 AD2d 846 (1995). Dementia does not remove the possibility that a decedent could have days where s/he functions well. Furthermore, the question of testamentary capacity is a question which is asked at the precise time of the will's execution. In re Minasian, 149 AD2d 511 (1989); In re Hedges, 100 AD2d 586, 588 (1984). A testator needs only a lucid interval of capacity to execute a valid will. This can occur even contemporaneously with an ongoing diagnosis of dementia, Matter of Friedman, 26 AD3d 723 (2006), or even incompetency, In re Walther, 6 NY2d 49 (1959). Solely by itself, the evidence of decedent's dementia which objectant has provided, does not create a question of fact as to decedent's testamentary capacity.

Objectant has not offered any proof to suggest that at any time on November 2, 2004 was the testator lacking capacity to make a will. Petitioner has offered proof by the will's witnesses stating that the testator had all the requisite capacity, and is entitled to a presumption of capacity because the will execution was supervised by the attorney draftsperson and it was self-proving. Objectant has not offered any proof which raises an issue of fact as to decedent's capacity. As such, petitioner's motion for summary judgment on the issue of capacity will also be granted.

LACK OF DUE EXECUTION [*8][*9]

With regard to objectant's objection as to due execution, to the extent that it remained prior to this motion it is also hereby dismissed. Objectant has not pursued her objection on the issue of due execution and not only did petitioner provide proof on this issue but he is also entitled to a presumption of due execution because the ceremony was presided over by an attorney.

Objectant's complaint with regard to petitioner's qualification for letters is noted by this court. Since there is no longer any impediment to the admission of the will to probate, objectant is no longer a potential beneficiary of this estate and thus has no standing to object to the appointment of its fiduciary. However, given that petitioner's status as a felon renders him ineligible to receive letters under SCPA 707, the court declines to issue letters testamentary to the petitioner, and will instead grant letters of administration, cta to the Public Administrator of Monroe County, upon his properly qualifying for said office.

So ordered. Submit probate decree accordingly.

Edmund A. Calvaruso

May 29, 2007Hon. Edmund A. Calvaruso, Surrogate