Matter of Ford

[*1] Matter of Ford 2010 NY Slip Op 50086(U) [26 Misc 3d 1213(A)] Decided on January 25, 2010 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 January 25, 2010
Sur Ct, Bronx County

In the Matter of the Estate of Irene Ford, Deceased



377-P-07/A



Stanley B. Katz, Esq., for Richard Ford, Jr., administrator of the estate of Ricahrd Ford, proponent

Feder Kaszovitz, LLP, (David Sack, Esq., of counsel) for Phyllis Ford, objectant

G. Anthony Ford, Elridge Antoine Ford, Rowena Ford, and Piercestein Ford, objectants, pro se

Lee L. Holzman, J.

In this probate proceeding, the proponent's motion for summary judgment is opposed by the objectants. In the propounded instrument dated July 22,1986, the decedent devised her two-family home and its rents to her son Richard, who was physically disabled and resided at the premises, on the condition that he pay all of the expenses therefor and, upon the sale of the premises, he or his estate would pay $5,000 to each of the decedent's other four children, or their respective issue, if any. Although the residuary estate is bequeathed to all of the children equally, the only testamentary asset is the realty. The instrument contains an attestation clause, and an attorney supervised its execution.

The decedent died on August 6, 1987, at the age of 89. Although the decedent was survived by five children, three of them, including Richard, who died on March 2, 2006, postdeceased the decedent during the more than 20 years that elapsed between the date of the decedent's death and the filing of the instant probate petition on January 31, 2008. The proponent is the administrator of Richard's estate, his son. Three separate sets of pro se objections were filed by: (1) Phyllis Ford, a daughter of the decedent; (2) two sons of the decedent's postdeceased son George; and, (3) two of George's daughters.

Notwithstanding that many of the pro se objections are in narrative form, to the extent that the allegations therein could be valid objections in a probate proceeding, they allege the following: (1) the decedent lacked testamentary capacity; (2) the instrument was not executed with the required formalities; (3) the signature is not the decedent's; and, (4) the instrument was the product of undue influence. Phyllis ultimately retained counsel who also filed papers on her behalf in opposition to the motion.

In support of the motion, the proponent submits three affirmations from the attorney-[*2]draftsman that collectively state: (1) on July 21, 1986, he received a telephone call from the decedent's son Richard, who informed him that the decedent, a stroke victim, was essentially confined to bed and wished to execute a will; (2) Richard conveyed the provisions of the decedent's will to the attorney and indicated that his mother was concerned that he have a suitable place to live since he was physically disabled and lived solely upon disability income; (3) using this information, the attorney prepared the will; (4) the next day, counsel and his wife went to the decedent's residence; (5) upon meeting the decedent, the attorney observed that she was handicapped from a stroke, her right arm was partially paralyzed, and she was attended by a nurse's aide; (6) counsel asked the decedent whether she understood that he was there to supervise the execution of her will, and, after reviewing the terms of the will with her, asked if she fully understood and ratified those provisions, and the decedent answered both questions in the affirmative; (7) when counsel asked the decedent why she favored Richard over her other children, the decedent raised her left hand with her fist clenched and stated, "because he's crippled;" (8) counsel then asked the decedent if she wanted him, his wife and the nurse's aide to act as witnesses to the will, and she said "yes;" (9) the decedent thereafter signed her name at the end of the instrument and, when asked whether the signature on the will was intended as her signature, replied "yes;" (10) counsel then observed the attesting witnesses sign the will; (11) Phyllis Ford, one of the objectants, was in the hallway of the apartment during the execution of the will and counsel believed she was aware of the process but voiced no objections at that time; (12) although at the time of the will execution Richard was not a client, counsel subsequently represented him; and, (13) in the attorney's opinion, the decedent had testamentary capacity and was not unduly influenced by Richard or anyone else with regard to the making and execution of the will. This attorney also stated that although Richard advised him of his mother's death in 1987, and initially wanted to probate the will, "shortly thereafter [he] telephoned me that he did not want the will probated since it was creating animosity and dissension among the children." The proponent also submitted the affidavit of counsel's wife, as attesting witness.

In opposition to the motion, the objectant Phyllis Ford furnishes: (1) a physician's prescription for home care for the decedent dated almost seven years prior to the date of the will's execution, indicating that the decedent "has right hemiplegia" and needs help for transfer and total assistance in daily activities, that her orientation, judgment and recent memory were "fair," her learning ability "poor," but that her alertness was "good;" (2) an affidavit by the decedent's daughter Pearline Davis claiming that the decedent's signature on the propounded instrument, an illegible scrawl, is not authentic, because after her stroke the decedent had no use of her right hand and could only sign with an "X" mark; (3) a request for medical payment dated April 20, 1979 signed by Pearline Davis on behalf of the decedent, reciting that the decedent had a stroke on February 28, 1979 and was paralyzed on the right side of her body; (4) an August 19, 1983 affidavit by the decedent signed with an "X" and countersigned by a homemaking aide and Pearline Davis, stating that the decedent is completely paralyzed on the right side; and, (5) a copy of a later will dated December 25, 1986, which the decedent signed with both an "X" mark and a thumb print, and under which the decedent's daughter Pearline receives an equal share with the decedent's son Richard or his estate upon the sale of the realty.

George's sons essentially take the position that no one dared to probate the instrument until after their father died in 2005. They allege that it was inconceivable that the decedent would leave almost the entire remainder interest to Richard or his estate because George was the one who paid [*3]for the property, and on other occasions he purchased real property in the decedent's name which she thereafter conveyed pursuant to his instructions. They submitted documentation for one such transfer. These objectants also note that the 20-year delay in probating the instrument results in Richard's estate receiving more than $500,000 while each of the decedent's other children or their issue would receive $5,000 each, at most.

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 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. Inc., 46 NY2d 1065 [1979]). When the movant has made out a prima facie case, the burden of going forward 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]). Mere conclusions, unsubstantiated allegations, or expressions of hope are insufficient to defeat a summary judgment motion (see Zuckerman v City of New York, 49 NY2d at 557). Nonetheless, 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]).

With respect to testamentary capacity, the proponent bears the burden of proving that, at the time of execution, the decedent understood the nature and consequences of executing a will; the nature and extent of her property; and the natural objects of her bounty and her relations with them (see Matter of Kumstar, 66 NY2d 691 [1985]). It is well recognized that mere proof of, inter alia, old age and physical infirmities when a will is executed does not preclude a finding of testamentary capacity (see Matter of Williams, 13 AD3d 954, 957 [2004], lv denied 5 NY3d 705 [2005] citing Matter of Buchanan, 245 AD2d 642, 644 [1997], appeal dismissed 91 NY2d 957 [1998]; Matter of Beneway, 272 App Div 463, 467-468 [1947]).

Unlike testamentary capacity, the objectants have the burden of proof with respect to their allegations that the will was the product of undue influence. To meet this burden, there must be proof of motive, opportunity and the actual exercise of undue influence tantamount to a moral coercion which restrained independent action and destroyed free will (Matter of Walther, 6 NY2d 49 [1959]; Matter of Korn, 25 AD3d 379 [2006]; Matter of Cavallo, 6 AD3d 434 [2004]; Matter of Coniglio, 242 AD2d 901 [1997]). The mere fact that one is the sole legatee or receives the lion's share of the decedent's assets is not, by itself, evidence of the exercise of undue influence (Matter of Walther, 6 NY2d at 49). As it is unusual for undue influence to be exerted in the presence of witnesses, it is often demonstrated by circumstantial evidence (see Matter of Paigo, 53 AD3d 836, 839-840 [2008]). Here, the court recognizes that the propounded instrument could not be denied probate based on any one of the following circumstances: (1) the decedent suffered a stroke in 1979 which caused her to be at least partially paralyzed on her right side and resulted in her requiring the assistance of a nurse's aide for the rest of her life; (2) a medical finding that at the time she suffered the stroke her learning ability was "poor" and her orientation, judgment and recent memory were "fair; and, (3) the decedent was in her late 80's when she signed the instrument with an illegible scrawl while all of the other documents offered on this motion, executed after her stroke, were [*4]purportedly signed by the decedent with an "X." Nonetheless, when those facts are considered together with the circumstances leading up to the execution of the instrument, as well as events that transpired thereafter, the court is not presently satisfied that the decedent at the time of executing the instrument "was in all respects competent to make a will and not under restraint" (SCPA 1408).

There are numerous reasons why the court is of the opinion that summary judgment should not be granted with respect to the issues of testamentary capacity and undue influence. The proponent presents no evidence establishing whether the decedent's mental capacity remained the same, improved or deteriorated between the time that she suffered the stroke at the age of 81 and the date that she executed the instrument at the age of 88. The same is true with respect to what affairs, if any, the decedent was able to transact or direct by herself at the time of the execution ceremony. If the decedent possessed the capacity to articulate her rather complicated testamentary plan to the attorney-draftsman, no explanation is offered by the proponent for why it was Richard rather than the decedent who procured the attorney and conveyed the testamentary scheme to him. Furthermore, the circumstances of Richard's disability do not explain why the decedent wanted to benefit his estate at the expense of her other children and their issue in the event that the property was not sold until after Richard's death. More troublesome is the fact that Richard conveyed the testamentary instructions to the attorney and the proponent failed to establish that the attorney had any meaningful discussions with the decedent about the fact that the will provides that most of the proceeds from the sale of the realty be paid to Richard's estate in the event the property was not sold until after Richard's death. The attorney does not state that he discussed with the decedent whether she owned any property in addition to the realty. Moreover, as neither the attorney nor his spouse ever met the decedent prior to the execution ceremony, they lacked any means to compare her capacity on that date with her capacity on any other date. Similarly, answering "yes" or "no" to a question is not determinative on the issue of testamentary capacity where, as here, it was not the testator who conveyed the testamentary scheme to the attorney. It is not even clear that the attorney ever had a discussion with the decedent about her testamentary plans in the absence of Richard. The bequest of the bulk of the proceeds from the sale of the realty to Richard's estate in the event that it was sold after his death raises even more questions in light of the fact that there is an allegation that the decedent's son George paid for the realty.

The events transpiring after the execution ceremony raise additional questions. Without in any way passing either upon the validity of the testamentary instrument purportedly executed by the decedent on December 25, 1986 or upon whether that subsequent instrument could even be offered for probate at this late date, it is surprising that only five months after the execution of the propounded instrument, the decedent purportedly changed her testamentary scheme so that Pearline joined Richard or his estate as the primary beneficiaries of the decedent's estate. Furthermore, although the 20-year delay in offering the instrument for probate does not, by itself, constitute a basis to deny probate, the circumstances of the delay do call for an explanation (see Matter of Duffy, 127 App Div 174 [1908]; Matter of Adamo, 16 Misc 3d 800 [2007]). The proponent offers family harmony as the reason for the delay and the objectants contend that the proof that George could have furnished in opposition to the will is the reason that it was not offered for probate until after his death.

For all of the reasons hereinabove stated, the court finds "that the circumstances attending the decedent's execution of [her] will" raise questions regarding testamentary capacity and undue [*5]influence which "merit the careful scrutiny that can only be obtained by a full airing of the matter before a trier of fact" (see Matter of Paigo, 53 AD3d at 836, 840-841). In short, even if the court were to find that the proponent marginally established a prima facie case as to testamentary capacity, the objectants not only presented sufficient evidence to raise questions of fact on that issue but also presented circumstantial evidence from which it could be inferred by a trier of fact that they had met their burden of proof as to undue influence. Accordingly, the proponent's motion for summary judgment is denied with respect to the objections alleging lack of testamentary capacity and undue influence.

On the other hand, the proponent is entitled to summary judgment dismissing all of the remaining objections. Notwithstanding that the proponent has the burden of proof on the issue of due execution, there is a presumption of regularity where, as here, the will's execution was attorney supervised (see Matter of Cottrell, 95 NY 329 [1884]; Matter of Bustanoby, 262 AD2d 407 [1999]) and contains an attestation clause (see Matter of Nelson, 141 NY 152 [1894]). Here, the objectants' contention that the decedent was physically incapable of producing the illegible scrawl that appears on the instrument is not supported by any medical proof. Moreover, it appears that one of the objectants was present at the decedent's home when the instrument was executed. Assuming, arguendo, which the court is not willing to do, that the attorney, his wife and a nurse's aide were all willing to attest to a forged instrument while another party was present in the home, it is highly improbable that they would have elected an illegible scrawl instead of an "X" mark to perpetrate the forgery. Accordingly, the objections alleging lack of due execution and forgery are dismissed.

This decision constitutes the order of the court denying the proponent's motion for summary judgment admitting the instrument to probate; however, the motion is granted to the extent that all of the objections, with the exception of those alleging lack of testamentary capacity and undue influence, are dismissed. The proponent and all of the objectants are directed to appear for a pretrial conference in courtroom 406 at 9:30 A.M. on March 1, 2010, and the Chief Clerk is to mail a copy of this decision and order to each of the parties.

SURROGATE