Matter of Hirschorn

[*1] Matter of Hirschorn 2008 NY Slip Op 52061(U) [21 Misc 3d 1113(A)] Decided on October 15, 2008 Sur Ct, Westchester County Scarpino, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 15, 2008
Sur Ct, Westchester County

In the Matter of the Probate Proceeding, Estate of Abraham David Hirschorn, Deceased.



2007-166



TO:EISEN & SCHULMAN, LLP

Attorneys for Petitioner

18 East 48th Street - 8th Floor

New York, New York 10017

JOSEPH M. BUDERWITZ, ESQ.

Attorneys for Objectant

One North Broadway - 12th FloorWhite Plains, New York 10601

ALAN J. HARRIS, P.C.

Guardian Ad Litem

427 Manville Road

Pleasantville, New York 10570

Anthony A. Scarpino, J.

In this contested probate proceeding, petitioner, a nephew of decedent and proponent of an instrument executed on February 23, 2006 ("2006 instrument"), has moved for summary judgment, dismissing the objections to probate and to his prospective appointment as executor filed by objectant, a niece of decedent, who opposes the motion. The motion is granted in part, and denied in part, as set forth, infra.

BACKGROUND

Decedent died on November 16, 2006, at age 84, a domiciliary of Scarsdale, Westchester County. His sole distributee is his 15-year-old granddaughter ("infant"), who is the daughter of decedent's estranged son Richard ("Richard") - who pre-deceased decedent in 2004. Decedent was also survived by 10 nieces and nephews - including petitioner and objectant. Decedent had been married twice, with both marriages ending in divorce - the second of which was finalized shortly before decedent's death.

The following pertinent facts have been gleaned from transcripts of pre-trial testimony given by petitioner and objectant and from affidavits submitted on their behalf:In or around October 2004, shortly after decedent underwent quadruple by-pass surgery, decedent's second spouse, Eleanor, left decedent and purportedly seized nearly $140,000.00 of assets held in a joint account in their names ("joint account"). Over the next two years, decedent was beset with numerous physical ailments (i.e., pneumonia, broken shoulder, diabetes, kidney-related problems), which caused him to be hospitalized and undergo physical rehabilitation on numerous occasions during that period.

Shortly after Eleanor left him, decedent contacted petitioner, who was decedent's personal accountant since the late 1990's, in order to gain his assistance in trying to recover from Eleanor the proceeds from the joint account. At that time, decedent informed petitioner that under [*2]his then-existing will (executed in or around 1993), he had bequeathed his entire estate to Eleanor, and he wanted to change his testamentary plan to bequeath his estate to petitioner and/or petitioner's son. Thereupon, petitioner, who resides in Rockland County, contacted Bernard Schulman, Esq. - petitioner's counsel of record in the instant proceeding - with whom petitioner has had a mutual professional relationship for client referrals since the late 1990's. Schulman agreed to assist decedent in pursuing his claim to recover the assets from the joint account and, following a meeting with decedent, Schulman prepared a draft of a new will for decedent. However, shortly after that draft was prepared, decedent expressed to petitioner his dissatisfaction with certain aspects of Schulman's legal services. Thereupon, petitioner contacted attorney Nancy B. Morris, Esq. ("Morris") - a distant cousin of petitioner's spouse - whose law office is located in Rockland County. Petitioner dispatched a copy of Schulman's draft to Morris, who adopted Schulman's draft in preparing a testamentary instrument for decedent. On December 30, 2004, at her law office, Morris supervised decedent's execution of that instrument ("2004 instrument"), pursuant to which decedent: (i) bequeathed his entire residuary estate to petitioner, and in the event petitioner predeceased him, to petitioner's spouse, and in the event she predeceased decedent, to petitioner's then-living issue; (ii) nominated petitioner to be sole executor and petitioner's spouse as successor/alternate executrix; (iii) specifically disinherited Eleanor, for having "abandoned [him] without justification"; and (iv) specifically disinherited any issue of Richard, due to decedent's estrangement from Richard and his children (Aff. In Opp. - Ex. E). Petitioner acted as liaison between Morris and decedent in arranging for decedent's execution of the 2004 instrument in the following respects: (i) he transported decedent to Morris' office; (ii) he was present when decedent executed the instrument; and (iii) he paid $150.00 to Morris for her services and was not reimbursed therefor (Aff. In Opp. - Ex. A, at 89-97).

Subsequently, in or around early 2005, objectant assumed primary responsibility for assisting decedent in many aspects of his daily routine, including paying his bills, managing his medication and health care assistance, scheduling his medical appointments, and acting as liaison between decedent and the law firm of Robinowitz, Cohlan & Dubow, Esqs. ("Robinowitz firm") - the law firm decedent ultimately retained to represent him in the divorce action Eleanor had commenced against him. During this time, decedent decided to appoint objectant as his attorney-in-fact and his health-care proxy. In conjunction with that decision, on July 13, 2005, while he was hospitalized for a shoulder injury he had sustained, decedent executed a testamentary instrument under the supervision of two attorneys from the Robinowitz firm ("2005 instrument"). Also, at or around that time, decedent executed a power of attorney and health-care proxy in objectant's favor. Under the 2005 instrument, decedent: (i) specifically revoked the 2004 instrument; (ii) bequeathed the sum of $10,000.00 to petitioner; (iii) bequeathed his entire residuary estate to objectant, and in the event she failed to survive him, to petitioner; (iv) appointed objectant as sole executrix and petitioner as alternate executor; and (v) specifically disinherited Eleanor (Aff. In Opp. - Ex. F).

In early or mid-February 2006, during a conversation between he and decedent at decedent's home concerning decedent's ongoing efforts to recover the proceeds from the joint account, decedent informed petitioner of the existence of the 2005 instrument. According to petitioner, during this conversation, decedent told petitioner that objectant had "pressured" him into signing the 2005 instrument while he was in the hospital. Upon learning this information, petitioner [*3]contacted the Robinowitz firm and requested that a copy of the 2005 instrument be sent to decedent's home. When he received that copy a day or so later, petitioner went over the terms of the 2005 instrument with decedent and, upon decedent's expression of discontent with those terms, petitioner suggested to decedent that he execute another will. During these conversations, petitioner discussed with decedent that decedent owed petitioner between $10,000.00 and $15,000.00 for various loans petitioner had made to decedent and for unpaid professional services petitioner had performed for him, and decedent indicated to petitioner that he wanted to divide his estate between petitioner and objectant, in percentages of 60% to petitioner and 40% to objectant. Also, at or around the time of the foregoing conversations, petitioner assisted the Robinowitz firm in reviewing decedent's assets for the purpose of negotiating a settlement of the divorce action Eleanor had commenced against decedent.

In mid-February 2006, petitioner contacted Morris and advised her that decedent wanted to execute a new will, virtually identical in many respects to the 2004 instrument she had previously prepared for him, except that decedent now wanted his residuary estate to be divided between petitioner and objectant, in percentages of 60% to petitioner and 40% to objectant. Morris drafted the 2006 instrument in accordance with petitioner's instructions, and forwarded a copy of the draft to petitioner to give to decedent.

On February 23, 2006, as petitioner was driving decedent to Morris' office to execute the 2006 instrument, decedent suddenly informed petitioner that he wanted petitioner and objectant to split his residuary estate in equal 50% shares. At that point, petitioner contacted Morris via cellular telephone, and after providing her with the background information attendant to decedent's execution of the 2005 instrument, informed her of decedent's requested adjustment to his residuary disposition. Morris, who has drafted instruments and/or supervised will execution ceremonies on an average of two to five occasions annually since 1991, made the requested revision prior to petitioner's and decedent's arrival at her office. When they arrived, Morris met privately with decedent, at which time decedent expressed his concerns to Morris about the propriety of the 2005 instrument he had executed in the hospital. According to Morris, from conversations she had with both petitioner and decedent, even though she had not prepared a family-tree diagram of decedent's relatives, decedent made her aware that his only son had pre-deceased him and that he had a grand-daughter. During their private conference, Morris went over each and every term of the 2006 instrument with decedent thoroughly and, upon his approval thereof, they rejoined petitioner in a conference room to commence the execution ceremony (Notice of Motion - Ex. B; Aff in Opp. - Ex. G).

Pursuant to the 2006 instrument, which is comprised of five pages of dispositions and instructions, and includes an attestation clause, decedent: (i) specifically revoked the 2005 instrument; (ii) bequeathed his residuary estate in equal 50% shares to petitioner and objectant; (iii) nominated petitioner to be sole executor and petitioner's spouse as successor/alternate executrix; (iv) specifically disinherited Eleanor and any issue of Richard, as he had done in the 2004 instrument. Morris supervised the execution ceremony, which occurred in petitioner's presence, and three of Morris' employees - Lynn Figurski, Linda K. Petty and Kathleen Skidmore - acted as the attesting witnesses. All three attesting witnesses executed a self-proving affidavit contemporaneously with the execution of the 2006 instrument. Eventually, petitioner paid $350.00 to Morris for her services in preparing the 2006 instrument for decedent. [*4]

According to both petitioner and objectant, petitioner did not disclose to objectant the existence of the 2006 instrument until after decedent's death.

Petitioner commenced the instant proceeding in January 2007. Pursuant to her verified objections, objectant alleges: (i) the 2006 instrument is not decedent's last will (¶¶ 1, 5); (ii) lack of due execution (¶¶ 2[a], 2[b], 2[c], 2[d]); (iii) decedent lacked testamentary capacity at the time of execution (¶ 2[e]); (iv) the instrument was a product of "fraud, duress, coercion and/or undue influence" perpetrated by petitioner, Morris and other unnamed parties (¶¶ 2[f], 3, 4, 6); and (v) petitioner should be disqualified from serving as executor due to his "want of understanding", "dishonesty", and "unfitness for the execution" of that office (¶ 2[g]).

The guardian ad litem appointed by the court to represent the infant's interests has not filed objections to probate or papers attendant to the instant motion.

APPLICABLE LAW AND CONCLUSIONS

Summary Judgment

Summary judgment is a drastic remedy, properly invoked when it is clear that no genuine factual issues exist (see Andre v Pomeroy, 35 NY2d 361; Phillips v Kantor & Co., 31 NY2d 307). The proponent of a summary judgment motion 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 genuine material issues of fact (see Alvarez v Prospect Hosp., 68 NY2d 320; Winegrad v New York Univ. Med. Center, 64 NY2d 851, 853). Once such a prima facie showing has been made, the burden shifts to the party opposing the motion to lay bare his/her proof, producing admissible evidence sufficient to establish the existence of genuine material issues of fact which require a trial (Alvarez v Prospect Hosp., supra , at 324; Zuckerman v City of New York, 49 NY2d 557). While a court must construe the facts in the light most favorable to the non-moving party ( Martin v Briggs, 235 AD2d 192; McArdle v M & M Farms, 90 AD2d 538), mere conclusions, unsubstantiated allegations, or expressions of hope are insufficient to defeat a summary judgment motion (Zuckerman v City of New York, supra ). However, if there is conflicting evidence or the possibility of drawing conflicting inferences from undisputed evidence, summary judgment is inappropriate (Matter of Kumstar, 66 NY2d 691, 692).

Moreover, while the testimony of an interested person which would be precluded under CPLR 4519 (i.e., the Dead Man's Statute) may not be used to support a motion for summary judgment (Beyer v Melgar, 16 AD3d 532; Friedman v Sills, 112 AD2d 343, 344-45), it may be used to defeat a motion for summary judgment, provided that it is not the only proof submitted in opposition to the motion (Phillips v Kantor & Co., supra ; Rodriguez v Sixth President, Inc., 4 AD3d 406, 407; Arnold v New York City Hous. Auth., 296 AD2d 355, 356).

Also, when, as in the instant case, papers in opposition to a summary judgment motion lack an affidavit of facts from a party but are supported by an affirmation of counsel with deposition testimony and documentary evidence annexed as exhibits thereto, counsel's affirmation, viewed as mechanism to summarize the content of those exhibits, is a sufficient submission to oppose the motion (see Ellman v Village of Rhinebeck, 41 AD3d 635, 636 [and cases cited]).

Decedent's Last Will and Testament[*5]

Initially, as to the objection that the 2006 instrument was not decedent's last will, or that decedent's "real" or actual last will is the 2005 instrument, petitioner bears the initial burden on proving the genuineness of the will and its components (see SCPA 1408). The record indicates that petitioner has met his burden through the testimony and/or affidavits submitted by Morris, the attorney who supervised the execution of the propounded instrument, and the attesting witnesses. In response, objectant has failed to set forth any evidence which would contradict the genuineness of the 2006 instrument. Accordingly, these objections (¶ 1 and ¶ 5 of verified objections) are dismissed.

Due Execution

As to due execution, the court hereby dismisses those objections. It is settled that a proponent bears the burden of proving, by a preponderance of the evidence, that the propounded instrument was executed in compliance with EPTL 3-2.1. To establish due execution, a proponent must show that: (i) the testator signed at the end of the instrument; (ii) the testator either signed in the presence of at least two attesting witnesses or acknowledged his/her signature to them; (iii) the testator declared to each of the attesting witnesses that the instrument was his/her will; and (iv) the witnesses signed at the testator's request (Matter of Kelum, 52 NY 517). Where a propounded instrument contains an attestation clause, it is inferred that the requisite statutory requirements were satisfied (see Matter of Philbrook, 185 AD2d 550; see also Matter of Zipkin, 3 Misc 2d 396). Also, there is a presumption of regularity when the attorney/drafter supervises a propounded instrument's execution (Matter of Moskoff, 41 AD3d 481; Matter of Tuccio, 38 AD3d 791; Matter of Weltz, 16 AD3d 428). In fact, where, as here, there is a completed attestation clause, self-proving affidavit, and other evidence indicating compliance with EPTL 3-2.1, a prima facie case of due execution has been established, even where there are slight discrepancies and/or the attesting witnesses fail to have an independent recollection of every single element of execution (Matter of Collins, 60 NY2d 466; Matter of Cotrell, 95 NY 329; Matter of Moskoff, supra ).

Based on the information gleaned from the transcripts of the 1404 examinations and/or affidavits submitted by Morris and the three attesting witnesses, the court finds that petitioner has made out a prima facie case for due execution of the 2006 instrument.More specifically, it is undisputed that Morris was a seasoned practitioner, and her practice included the preparation and execution of wills. Moreover, the self-proving affidavit indicates the completion of all required elements for due execution on the date in question. In response, objectant relies solely on: (i) Morris' failure to read aloud the provisions of the will and/or the attestation clause during the execution ceremony; and (ii) slight discrepancies in the testimony of Morris and the witnesses regarding the inclusion decedent's middle name when he first executed the 2006 instrument and whether decedent used his glasses during the execution ceremony. In the court's estimation, these allegations do not raise triable issues of fact which would overcome the presumption of due execution. First, there is no requirement under EPTL 3-2.1 that the provisions of the will and/or the attestation clause must be read aloud to the testator (see Matter of Jozefiak, NYLJ, Apr. 20, 2007, at 32, col. 2 [Kings]; Matter of Barrett, NYLJ, Sept. 10, 2003, at 21, col. 4 [Queens]; Matter of Swierzewski, NYLJ, Apr. 18, 1995, at 30, col. 6 [Nassau]). Also, the discrepancies objectant has pointed out with respect to the 1404 examination testimony and affidavits submitted by petitioner are insignificant and, thus, insufficient to create triable issues which would defeat petitioner's motion, particularly in light of the proof submitted and the inferences [*6]flowing from the circumstances surrounding this execution ceremony (see e.g., Matter of Megna, NYLJ, Jan. 7, 2002, at 31, col. 3 [Suffolk]; see, e.g. Matter of Rosen, NYLJ, June 30, 2000, at 31, col 1, n 3). Accordingly, all objections to due execution (¶¶ 2[a], 2[b], 2[c], and 2[d] of verified objections) are hereby dismissed.

Testamentary Capacity

As to decedent's testamentary capacity, the court dismisses that objection as well. It is settled that a testator enjoys a presumption of sanity and mental capacity (see Matter of Coddington, 281 App Div 143, affd 307 NY 181), and that a proponent bears the burden of proving, by a preponderance of evidence, that, at the time of execution, decedent understood three things in a general way: (i) the nature and extent of his/her property; (i) the natural objects of his/her bounty; and (iii) the provisions of the instrument (Matter of Kumstar, 66 NY2d 691, supra ; Matter of Sasso, NYLJ, Nov. 4, 1992, at 27, col. 4 [New York]). The capacity to execute a valid will is minimal - lower than that required to execute most other legal documents or contracts (Matter of Coddington, supra ). In this regard, a testator's testamentary capacity is assessed at the precise time of the propounded instrument's execution (Matter of Minasian, 149 AD2d 511; Matter of Hedges, 100 AD2d 586, 588). A testator needs only a lucid interval of capacity to execute a valid will, and this interval can occur contemporaneously with an ongoing diagnosis of mental illness, including depression (Matter of Esberg, 215 AD2d 655) progressive dementia, or even incompetency (see Matter of Walther, 6 NY2d 49; Matter of Friedman, 26 AD3d 723; see generally Matter of Petix, 15 Misc 3d 1140(A), 841 NYS2d 822, 2007 WL 1532288 [Monroe]). Also, it has long been recognized that physical weakness is not necessarily inconsistent with testamentary capacity (Children's Aid Soc. of NY v Loveridge, 70 NY 387; Matter of Swain, 125 AD2d 574).[FN1]

Upon review thereof, the record indicates that petitioner has met his initial burden through the testimony and affidavits submitted by Morris and the attesting witnesses (see Matter of Betz, 63 AD2d 769). Moreover, petitioner has submitted the following medical information: (i) medical records attendant to decedent's hospitalization for a two-week period in December 2005, two months prior to his execution of the 2006 instrument; and (ii) an affidavit from Dr. Joseph J. DeNatale ("DeNatale") decedent's treating physician for four years. This medical evidence indicates that, while decedent may have been diagnosed with "depressive disorder", "unspecified persistent mental disorders" and "mild cognitive impairment" during his hospitalization in December 2005, he appeared "alert", and was not suffering from "acute dementia, delusions or from any other acute mental disorders" at or around the time the 2006 instrument was executed (i.e, February 23, 2006) [*7](Reply Aff. - Exs. A and B). [FN2] In opposing the motion on this issue, objectant submits her own pre-trial testimony and an affidavit from her brother, through which, she alleges, she has raised legitimate questions of fact as to decedent's general health and mental capacity at and/or around the time of execution (Aff in Opp. - Exs B and C). In this regard, objectant and her brother allege that: (i) decedent's general health had deteriorated significantly and his ability to operate a motor vehicle was impaired following his by-pass surgery in late 2004; (ii) decedent suffered from "anxiety" and "depression", and he was "very distraught" and "angry" and had incurred significant "stress" following Eleanor's departure with the assets from the joint account and during the divorce proceedings; and (iii) in the months following the execution of the 2006 instrument, decedent was "unsteady on his feet" and appeared "frail" and "fragile" from the numerous medical ailments he was battling. The court finds that objectant's allegations in opposing dismissal of her objections that decedent lacked testamentary capacity are conclusory and/or wholly speculative and, therefore, insufficient to raise legitimate factual issues pertaining to this issue. Moreover, objectant's reliance on those portions of the medical evidence submitted by petitioner which indicate that decedent may have been diagnosed with "depressive disorder", "unspecified persistent mental disorders" and "mild cognitive impairment" during his hospitalization two months prior to his execution of the 2006 instrument is wholly neutralized by the testimony of the attesting witnesses and Dr. Natale as to decedent's mental ability at the time of execution, to wit: decedent appeared "alert", and was not suffering from "acute dementia, delusions or from any other acute mental disorders" at that time (cf. Matter of Paigo, 53 AD3d 836, supra [summary judgment on issue of testamentary capacity denied where: (i) decedent executed will four days after undergoing brain surgery (one day after release from intensive care) due to complications from cancer; (ii) respondents presented medical records spanning period of decedent's hospitalization, including records contemporaneous with decedent's execution of will and petitioner's meeting with decedent immediately prior to surgery regarding substance of will, which indicated that decedent suffered from "intermittent confusion", was "impulsive" and "forgetful" and "did not retain information"; and (iii) respondents presented other testimony and affidavits echoing the foregoing observations]). Accordingly, the objection to decedent's testamentary capacity (¶ 2[e] of verified objections) is hereby dismissed.

Fraud

[*8]As to fraud, the court also dismisses that objection. Generally, an objectant bears the initial burden of proof on this issue (Matter of Schillenger, 258 NY 186, 190). To establish fraud, an objectant must demonstrate, by clear and convincing evidence (Simcuski v Saeil, 44 NY2d 442, 452), that a false statement was made which caused the testator to execute a will that disposed of his/her property in a different manner than he/she would have if the statement had not been made (Matter of Colverd, 52 AD3d 971; Matter of Beneway, 272 App Div 463, 468). In order to defeat a motion for summary judgment on the issue of fraud, an objectant must lay bare her proof (Matter of Leone, NYLJ, Feb. 3, 2000, at 36, col. 2 [Westchester]), coming forward with more than "mere conclusory allegations and speculation" (Matter of Seelig, 13 AD3d 776, 777), to wit: an objectant must produce sufficient evidence to show that there is an issue of fact to the extent that the proponent made a false statement or statements to the testator to induce him/her to make the subject instrument, that the testator believed the statement(s), and that without such statement(s), the instrument would not have been drawn (see 2 NY PJI2d 7:60 [2008]; see also Matter of Evanchuk, 145 AD2d 559, 560; Matter of Beneway, supra ). A showing of motive and opportunity to mislead is insufficient; evidence of actual misrepresentation is necessary (Matter of Gross, 242 AD2d 333, 334; see generally Matter of Katz, 15 Misc 3d 1146[A], 841 NYS2d 820, 2007 WL 1674237 [Nassau]).

On the instant record, the court finds that objectant has failed to set forth any proof of a material misrepresentation which led to decedent's execution of the 2006 instrument (see Matter of Evanchuk, supra ; Matter of Bianco, 195 AD2d 457, 458). Accordingly, to the extent objectant alleges that the 2006 instrument was a product of "fraud", that objection (¶ 2[f] of verified objections, in pertinent part) is hereby dismissed.

Undue Influence

As to the objection of "duress, coercion and/or undue influence" (i.e., undue influence), the court finds that summary dismissal is inappropriate at this time.It is settled that the objectant bears the initial burden of proof on the issue of undue influence (Matter of Bustanoby, 262 AD2d 407, 408). To establish undue influence, an objectant must demonstrate, by a preponderance of evidence, a motive, opportunity and the actual exercise of influence so strong as to subvert the mind of the testator at the time of execution to the extent that, but for the "undue" influence, the testator would not have executed the instrument (see Matter of Fiumara, 47 NY2d 845; Matter of Walther, 6 NY2d 49, supra ). Undue influence is rarely proven by direct evidence; rather, it is usually proven by circumstantial evidence of a substantial nature (Matter of Walther, supra ; Matter of Burke, 82 AD2d 260). Among the factors considered are: (i) the testator's physical and mental condition; (ii) whether the attorney who drafted the propounded instrument was the testator's attorney; (iii) whether the propounded instrument deviates from the testator's prior testamentary plan; (iv) whether the person who allegedly wielded undue influence was in a position of trust; and (v) whether the testator was isolated from the natural objects of his bounty (see Matter of Katz, 15 Misc 3d 1146[A], supra ).

Additionally, an inference of undue influence arises, requiring the beneficiary under the instrument to explain the circumstances of the bequest, when the beneficiary was in a confidential or fiduciary relationship with the testator and was, in some way, involved in the drafting of the will (see Matter of Putnam, 257 NY 140; Matter of Collins, 124 AD2d 48). This inference places the burden on the beneficiary to explain the circumstances of the bequest (see Matter of Bach, [*9]133 AD2d 455; Matter of Collins, supra ), and the adequacy of this explanation presents a question of fact for determination by the jury (Matter of Bach, supra ; Matter of Burke, supra ; see generally Matter of Neenan, 35 AD3d 475). The foregoing inference may be counterbalanced and the attendant requirement of an explanation eliminated where, unless sufficient circumstantial evidence of undue influence is otherwise presented, the alleged perpetrator of undue influence is in a close familial relationship with the decedent (Matter of Walther, 6 NY2d 49, supra ; see Matter of Scher, 20 Misc 3d 1141[A], ___ NYS2d ___ , 2008 WL 4149757 [Kings]).

Initially, the court recognizes that a relationship between and accountant and client is not, as a matter of law, a confidential relationship (see Matter of Katz, 15 Misc 3d 1104(A), ___ NYS2d ___, 2007 WL 788393 [New York], n 5). Nevertheless, on the instant record, the court finds that the nature of the relationship between petitioner and decedent under the circumstances surrounding decedent's execution of both the 2004 and 2006 instruments establishes that a de facto confidential relationship may have existed between petitioner and decedent. More specifically, the instant record demonstrates that petitioner, decedent's nephew: (i) acted as decedent's accountant from the late 1990's until decedent's death; (ii) at or around the time surrounding decedent's execution of the 2006 instrument, was actively involved in decedent's personal finances, as he assisted the Robinowitz firm in attempting to resolve decedent's divorce action; (iii) selected the ultimate draftsperson of the 2004 and 2006 instruments executed by decedent and was decedent's sole conduit of decedent's testamentary plan to Morris, with whom decedent had no previous attorney-client relationship; and (iv) was the only person present when decedent informed him about the terms of and circumstances surrounding the execution of the 2005 instrument, and encouraged decedent to make a new will when decedent expressed his dissatisfaction with that instrument. Additionally, it is undisputed that decedent's general health had deteriorated significantly following his by-pass surgery in late 2004, as he suffered from "anxiety" and "depression" and was "very distraught" following Eleanor's departure with the assets from the joint account and during the divorce proceedings. There is even testimony from objectant that, against decedent's wishes, petitioner took possession of certain original stock certificates decedent held in his possession at his home. These facts may ultimately lead a jury to determine that a "confidential relationship" existed between decedent and petitioner at the time of the execution of the 2006 instrument. Such a finding may create an inference of undue influence, which petitioner must rebut with proof that the instrument was not a product of his undue influence (Matter of Gordon v Bialystoker Center & Bikur Cholim, 45 NY2d 692).

Finally, in view of the foregoing evidence present on this record, the court rejects petitioner's contention that his degree of kinship (i.e., nephew) with decedent, in and of itself, negates any possible finding of a confidential relationship (see Matter of Neenan, 35 AD3d 475, supra [proponent was decedent's grand-nephew and accountant]; compare Matter of Walther, 6 NY2d 49, supra )[committee and ward were sisters]; Matter of Moskowitz's Will, 279 App Div 660, affd 303 NY 992 [attorney and client were son and father]; Matter of Camac, 300 AD2d 11 [physician and patient were daughter and mother]; Matter of Zirinsky, 43 AD3d 946 [proponent was decedent's son]; Matter of Paigo, 53 AD3d 836, supra [proponent was decedent's sister]; Matter of Scher, 20 Misc 3d 1104[A], supra [proponents were decedent's son and adopted son]; Matter of Petix, 15 Misc 3d 1140[A], supra [attorney-in-fact was decedent's son]). [*10]

Accordingly, a summary determination of the objections related to undue influence (¶¶ 2[f], in pertinent part, 3, 4, and 6 of verified objections,) is inappropriate at this juncture.

Disqualification of Fiduciary - SCPA 707(1)(e)

As to objectant's objection to petitioner qualifying as executor under the instrument, that objection is dismissed. It is well settled that the selection of a fiduciary by a testator is not to be lightly disregarded and, therefore, a strong showing is required to deny letters testamentary (see Matter of Rad, 162 Misc 2d 229, 233 [and cases cited]). One of the grounds for disqualification of a nominated fiduciary is that he/she "does not possess the qualifications required of a fiduciary by reason of substance abuse, dishonesty, improvidence, want of understanding, or * * * is otherwise unfit for the execution of the office" (SCPA 707[1][e]). In this respect, a charge of dishonesty requires a finding that such dishonesty or improvidence be related to money matters from which a reasonable apprehension may be entertained that the funds of the estate would not be safe in the nominated fiduciary's control (Matter of Flood, 236 NY 408; Matter of Cohen, 254 App Div 571, affd 278 NY 584). The party alleging ineligibility of the prospective fiduciary has the burden of proof attendant to the allegations made (Matter of Krom, 86 AD2d 689 [and cases cited]), and a hearing on the possibility of disqualification of a fiduciary should be entertained only in extreme cases, in order to avoid unnecessary litigation (see Matter of Younker, 111 Misc 2d 599).

On the instant record, the court finds that dismissal of this objection is warranted. In support of his motion, petitioner alleges that objectant has failed to provide any evidence which would support her allegations that petitioner committed acts of misfeasance and/or nonfeasance both prior and subsequent to decedent's death which would disqualify him to act as the estate's executor, pursuant to any of the asserted grounds set forth in SCPA 707(1)(e). In fact, the only portion of the record which would arguably support these allegations is found in a portion of objectant's own pre-trial testimony (Aff in Opp. - Ex. B, at 57-62), which, in the court's estimation, amounts to mere conclusory allegations unsupported by tangible evidence.

Accordingly, the objection seeking petitioner's disqualification as executor due to his "want of understanding", "dishonesty", and "unfitness for the execution" of that office (¶ 2[g]) is hereby dismissed.

The underlying proceeding is restored to the Court's calendar of Wednesday, December 3, 2008, at 9:30 p.m. Counsel shall appear for a status conference following the call of the court's calendar that morning.

THIS IS THE DECISION AND ORDER OF THE COURT.

The following papers were considered:

1. Petitioner's Notice of Motion, filed May 15, 2008, including all supporting affidavits and exhibits;

2. Objectant's Affirmation in Opposition, filed July 9, 2008, including all supporting affidavits, exhibits and accompanying memorandum of law;

3. Petitioner's Reply Affirmation, filed July 22, 2008, including exhibits and accompanying memorandum of law; and

4. Objectant's Sur-Reply Affirmation, filed August 4, 2008.

Dated:White Plains, NY

October 15 , 2008 [*11]

_________________________________

HON. ANTHONY A. SCARPINO, JR.

Westchester County Surrogate

TO:EISEN & SCHULMAN, LLP

Attorneys for Petitioner

18 East 48th Street - 8th Floor

New York, New York 10017

JOSEPH M. BUDERWITZ, ESQ.

Attorneys for Objectant

One North Broadway - 12th FloorWhite Plains, New York 10601

ALAN J. HARRIS, P.C.

Guardian Ad Litem

427 Manville Road

Pleasantville, New York 10570 Footnotes

Footnote 1:Additionally, the Appellate Division, Third Department has consistently recognized that the existence of self-proving affidavits executed by the attesting witnesses creates a presumption of testamentary capacity (see Matter of Paigo, 53 AD3d 836; Matter of Castiglione, 40 AD3d 1227, 1228; Matter of Friedman, 26 AD3d 723, supra ; Matter of Pilon, 9 AD3d 771, 772; Matter of Johnson, 6 AD3d 859, 860; Matter of Leach, 3 AD3d 763, 764-765; Matter of Clapper, 279 AD2d 730, 731).

Footnote 2:In support of his motion, petitioner originally submitted copies of: (i) a subpoena duces tecum, dated March 6, 2008, he served on DeNatale; and (ii) three pages of undated, unsigned medical records (Notice of Motion - Ex. K). In opposing the motion, objectant initially claimed that she was not noticed with this subpoena, and, in any event, the records were unauthenticated (Obj. Memo of Law in Opposition to Motion - Point II). In her initial papers opposing the motion, objectant challenged the adequacy of the foregoing submissions for the purposes of the instant motion.

Subsequently, in his reply papers, petitioner submitted the fully-authenticated hospital records and the affidavit from DeNatale. Objectant has fully addressed the adequacy of the content of the foregoing medical evidence in her counsel's sur reply affirmation.