Matter of Haber

[*1] Matter of Haber 2011 NY Slip Op 51767(U) Decided on September 30, 2011 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 30, 2011
Sur Ct, Bronx County

Estate of Eitan Haber, Deceased



2009-568/H

 

Epstein & Weil (Judith H. Weil, Esq., of counsel) for Elad Haber, proponent

Louis and Garbuz, P.C., (Lawrence I. Garbuz, Esq., of counsel) for Rachel Haber, Margalit Haber and Eliyahu Haber, objectants

Lee L. Holzman, J.

In this probate proceeding, the following three motions are pending: (1) the objectants' motion to renew their prior request for an order directing a commission for the examination of a non-party witness, the proponent's mother, who is the decedent's first wife (see Matter of Haber, NYLJ, June 25, 2010, at 32, col 3); (2) the objectants' motion to extend the discovery deadline to enable them, inter alia, to further depose the proponent and his spouse about documents that they failed to timely produce prior to their deposition as well as about e-mail communications between the two of them, because the proponent refused to answer questions about the e-mails at his deposition asserting marital privilege (see CPLR 4502 [b]); and, (3) the proponent's motion for summary judgment seeking to dismiss the objections and to admit the propounded will to probate.

The decedent died on March 7, 2009, survived by four children. The proponent, a son of the decedent's first marriage, is bequeathed 70% of the residuary estate under the propounded instrument dated January 20, 2009. The objectants are the three children of the decedent's second marriage which also ended in a divorce. Each of the objectants is bequeathed 10% of the residuary estate under the propounded instrument which is attorney drafted, contains an attestation clause and has a self-proving affidavit annexed thereto.

Prior applications in this estate, as well as the pending applications, reveal that the respective mothers of the proponent and the objectants harbor more ill will towards each other than either of them had towards the decedent when he became terminally ill with cancer. Perhaps, not surprisingly, the proponent and the objectants are carrying out their respective mother's battle in this estate. The proponent contends that the bulk of the estate was bequeathed to him because, after a bitter divorce from the objectants' mother, the decedent was of the opinion that the objectants would eventually receive the property that their mother had obtained from him in the divorce proceeding (see Matter of Haber, 24 Misc 3d 1239 [A], 2009 NY Slip Op 51804 [*2][U] [2009]). In another prior application the court noted that "[i]t appears to the court that both sides, instead of pursuing a plethora of intermediate relief, would be better served by focusing upon expeditiously resolving the will contest and, thereafter, expeditiously concluding the administration of the estate" (see Matter of Haber, 30 Misc 3d 1225 [A], 2011 NY Slip Op 50199 [U] [2011]).

With regard to the objectants' motion to renew their request for an order directing a commission to take the testimony of the proponent's mother, who it is alleged is presently residing in Florida, this request is based primarily upon the testimony of their own mother who was deposed at the proponent's request. The objectants' mother testified, inter alia, that: (1) the proponent's mother invited herself to come to New York when she learned that the decedent was ill, just as she had done when her second husband was ill because "she saw money there;" (2) the objectants' mother discussed this matter with the decedent and he was upset because "he knew the proponent's mother was there for the money," and the proponent's mother tried to get the decedent to sign a will but he refused despite threats by the proponent's mother that "she's going to leave" and that the proponent "will not talk to him;" and, (3) the objectants' mother told the decedent that she and the objectants were there for him if he needed their help but he replied that the proponent's mother did not want them in the house. The proponent and his wife confirmed during their depositions that the proponent's mother came to New York when the decedent became ill. The objectants contend that because the above deposition did not conclude until after the denial of their prior motion for a commission to take the testimony of the proponent's mother, there is newly discovered evidence warranting renewal.

Pursuant to CPLR 2221 (e) (2) and (3), a motion for leave to renew a prior motion "shall be based upon new facts not offered on the prior motion that would change the prior determination . . ." and "shall contain reasonable justification for the failure to present such facts on the prior motion." Here, although it is true that the objectants' mother was not deposed until after the denial of their prior motion for a commission to take the deposition of the proponent's mother, it is not alleged that their mother's deposition was the first time that the objectants were made aware of the conversations between the decedent and their mother on the topic of the attempts made by the proponent's mother to influence the decedent to favor the proponent over the objectants. Specifically, it is not alleged that the objectants' mother failed to report the substance of these conversations to one or more of the objectants when they occurred or, at the latest, shortly after the decedent's death. As the objectants do not provide any reasonable justification for their failure to furnish an affidavit from their mother in support of their initial motion for a commission, their motion for renewal must be denied.

The primary reason advanced by the objectants for the continuation of the depositions of the proponent and his wife and an extension of the discovery deadline is that when the e-mails between the proponent and his wife dated February 27, 2009 were shown to the proponent during his deposition, his attorney did not allow him to answer any questions about the e-mails on the alternative grounds that they contain confidential privileged communications between spouses (see CPLR 4502 [b]) and, even if they were not privileged, the e-mails should have been furnished to the proponent prior to his deposition in response to a document demand served upon the objectants. Without providing any technical details as to how she obtained the e-mails from the proponent's Yahoo account, one objectant alleges that she allowed the proponent to use [*3]her computer while he was staying at her home in March 2009, when the family was making funeral arrangements for the decedent, that the proponent "left these e-mails . . . on [her] computer," and that she "did not engage in any inappropriate activity in viewing the documents that were left on . . . [her] computer." The proponent counters that the e-mails predated his stay at this objectant's home, he did not open these e-mails from his Yahoo e-mail account while at the objectant's home, and, consequently, he cannot fathom how she obtained the e-mails.

CPLR 4502 (b) provides that "a husband or wife shall not be required, or, without consent of the other . . . , allowed, to disclose a confidential communication made by one to the other during marriage." This spousal privilege encompasses only those statements which are confidential; i.e., induced by the marital relationship and prompted by the affection, confidence and loyalty engendered by such relationship (see People v Mills, 1 NY3d 269 [2003]; Poppe v Poppe, 3 NY2d 312 [1957], rearg denied 3 NY2d 941 [1957]). Difficult issues arise with regard to whether spousal communications using modern technology remain confidential. The communication does not lose its confidentiality merely because electronic means are used (see CPLR 4548). Nonetheless, it has been held that where an employer prohibits personal use of its computers and an employee has knowledge of employer monitoring, the employee's use of the employer's e-mail system to communicate with his attorney is not privileged because it cannot be deemed a confidential communication (see Scott v Beth Israel Med. Ctr., 17 Misc 3d 934 [2007]). This policy was questioned in Stengart v Loving Care Agency (201 NJ 300, 990 A2d 650 [2010]), where the court held that an employee who used her own private e-mail account on her employer's laptop computer while at home was sending a confidential communication notwithstanding that the employer had a "no personal use" policy. In Matter of Vanderbilt [Rosner-Hickey] (57 NY2d 66 [1982]), the court held that a message a husband left for his wife on a cassette that was left in their home was a confidential marital communication even though others in the home may have had access to the tape and its contents.

Here, the objectant who owned the computer does not divulge exactly how she managed to obtain copies of the e-mails. This lack of specificity mandates the conclusion that the objectant did something more technologically advanced than merely turn on her computer, causing the e-mails to magically appear. As the e-mails clearly contain confidential exchanges, the issue becomes whether the manner in which the proponent accessed and read these communications caused a waiver of the privilege because he knew or should have known a third party would be able to access and read the e-mails, as would be the case if someone was looking over his shoulder when he opened the e-mails on a computer, or if he was warned that his e-mails would be monitored by someone who had the right to monitor them (see Scott v Beth Israel Med. Ctr., 17 Misc 3d at 934).

The proponent was invited by this objectant to stay at her home and use her computer while they were making arrangements for their father's funeral. It appears clear that if this objectant had surreptitiously rummaged through the proponent's possessions and found a sealed letter from his wife, which she unsealed and read, she would not be allowed to use this letter against him in this litigation (see Matter of Vanderbilt [Rosner-Hickey], 57 NY2d at 66). Based on the limited information that this objectant provided to the court, it must be assumed that she did something akin to surreptitiously accessing and looking through the proponent's possessions and unsealing a letter.The law should not, and does not, reward a person for employing this type [*4]of behavior to pierce privileged confidential communications between spouses. Accordingly, the proponent was justified in refusing to respond to any questions during his deposition about the e-mails and those e-mails do not constitute a basis for any further deposition of the proponent or his spouse. Furthermore, at the time that the discovery schedule was established, the objectants knew how other people they now want to depose were involved in the decedent's life, and there is no basis to extend the discovery schedule at this juncture to permit additional depositions of third parties.

Accordingly, the objectants' motion to extend the discovery deadline, compel further depositions and other relief is denied. Nevertheless, the objectants are entitled to any documents that were timely demanded and have not been delivered to date and, as the proponent failed to timely provide authorizations in proper form to allow the objectants to be able to obtain all of the decedent's medical records, the objectants are entitled to obtain additional medical records.

The remaining application to be determined is the proponent's motion for summary judgment. The objections allege the following: (1) the decedent lacked testamentary capacity; (2) the propounded instrument was procured by duress and undue influence; (3) it was also procured by fraud; and, (4) it was not duly executed as required by law.

In support of his summary judgment motion, the proponent submits, inter alia, transcripts of the testimony of the two attesting witnesses as well as the testimony of the attorney drafter who also supervised the execution of the will. The attorney's notes are consistent with the proponent's contention that the decedent bequeathed only 10% of his residuary estate to each of the children of the decedent's second marriage because he believed that these children, and not the proponent, would ultimately receive from their mother the considerable assets that she received from the decedent in their divorce proceeding. On the other hand, the drafting attorney also stated that he did not inquire about the decedent's relationship with any of his children as he was using an unexecuted will drafted by another attorney as a model for the will he prepared. Apparently, the decedent decided to use this attorney to draft his will because the decedent noticed the lawyer's name on a storefront window.

The proponent also submits an affirmation by the decedent's primary care physician who states "with medical certainty that [the decedent] possessed testamentary capacity on January 20, 2009 . . . at no time while he was my patient did I ever have reason to question [his] capacity to make independent decisions, nor did I ever see any instance in which his independent judgment or decision making ability was impaired or impeded by anything or any one." The proponent also relies upon statements by the decedent's accountant that the decedent was lucid right up to the day before his death. The proponent contends that his submissions establish that, after the decedent paid the objectants' mother the substantial amount required under their divorce proceeding, it was natural for the decedent to bequeath most of his remaining estate to the proponent. The proponent also avers that it is clear that no undue influence was exercised upon the decedent as the evidence shows he refused to execute another testamentary instrument, prepared for him by another attorney, bequeathing his entire estate to the proponent.

In opposition, the objectants assert that the motion for summary judgment is premature as they filed their application for additional discovery first, and they also set forth a litany of factual issues which, they contend, precludes any grant of summary judgment. With regard to whether the statutory formalities were followed in the execution ceremony, the objectants primarily rely [*5]upon minor inconsistencies in the statements of the attesting witnesses and the attorney who supervised the execution of the instrument with respect to: (1) whether or how many times the will was read aloud; (2) where all of the parties were located during the execution ceremony; (3) the pen(s) used during the ceremony; (4) the time during the ceremony when the pages of the will were stapled; and, (5) whether or not the decedent signed the will before he initialed its pages.

In support of their undue influence allegation, the objectants primarily rely upon the deposition of their mother. According to her testimony, without any request by the decedent or anyone else, the proponent's mother assumed the responsibility of caring for the decedent during his last illness and constantly threatened both to stop providing care to the decedent and that the proponent would be estranged from the decedent if the decedent did not make a will naming the proponent as the sole beneficiary. This witness also stated that the proponent's mother attempted to isolate the decedent not only from her but also from his other children. This witness asserted that at the wedding of the decedent's daughter, which occurred a few weeks after the execution of the propounded instrument, the decedent was unable to recognize several people he knew well, including family members. The objectants also find it suspicious that the decedent went to a lawyer he had never used before in order to execute the propounded instrument rather than to one of two lawyers with whom he had previous dealings, including one lawyer who prepared other estate planning instruments for the decedent, and drafted another testamentary instrument that was never executed. They note that the proponent concedes that he tried to be involved with the decedent's estate planning and there is testimony by an employee of the attorney drafter that the proponent called the attorney's office about the will.

With regard to testamentary capacity, the objectants point to the decedent's terminal illness, stage IV lung cancer, which required that he take strong medication including Zolpidem Tartrate (Ambien), Oxycodone HCI, Codeine Sulfate, Clonazepam and Dexamethasone. The objectants also contend that the decedent's inability to recognize people that he knew raises issues of fact as to testamentary capacity. The objectants concede that the decedent continued to go to work in a wheelchair; however, they contend that he was no longer able to manage his real estate holdings. The objectants also complain that the proponent failed to promptly furnish the necessary documents so that they could obtain all of the decedent's relevant medical records. They are particularly interested in medical records which they believe show the decedent suffered a stroke.

The fraud that the proponent is alleged to have perpetrated is that he, or his agents, falsely told the decedent that he had given property having a value of $3.5 million to his second wife when they were divorced while she actually received less than $2 million.

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. 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 [*6]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's submission of the testamentary instrument, containing an attestation clause with a self proving affidavit, and the deposition of the attesting witnesses and the attorney who supervised the execution of the instrument, establishes a prima facie case that the will was executed with all of the formalities required under EPTL 3-2.1 (see PJI 7:45.2 and cases cited 2 NY PJI 3d 7:45.2 at 1045-1046 [2011]). Experienced attorneys frequently have little trouble in demonstrating that all of the parties present at a will execution ceremony do not recall all of the details identically; however, the objectants have not created a triable issue of fact where, as here, the issues raised consist of no more than some minor inconsistencies in the testimony of those present. In light of the proponent's strong prima facie case, the lack of or inconsistent recollection as to minor details such as where everyone was located, which pens were used by the decedent and others, whether the decedent signed at the end of the will or initialed each of the pages first, who, if anyone, read the will aloud, and the time at which the pages of the will were stapled together, fail to create any triable issue of fact with regard to due execution (see Matter of Collins, 60 NY2d 466 [1983]; Matter of Farrell, 84 AD3d 1374 [2011]; Matter of Malan, 56 AD3d 479 [2008], lv denied 12 NY3d 702 [2008]; Matter of Leach, 3 AD3d 763 [2004]; Matter of Rosen, 291 AD2d 562 [2002]). Accordingly, the branch of the proponent's motion seeking summary judgment dismissing the objection alleging lack of due execution is granted.

The objectants have the burden of demonstrating by a preponderance of the evidence the exercise of undue influence (see Matter of Castiglione, 40 AD3d 1227,1229 [2007], lv denied 9 NY3d 806 [2007]; Matter of Katz, 192 AD2d 327 [1993]; PJI 7:55). A finding of undue influence requires 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 49, 55 [1959]; Matter of Renzi, 67 AD3d 1078 [2009], lv denied 14 NY3d 708 [2010], cert denied ___ US ___, 131 S Ct 420 [2010]; Matter of Dubin, 54 AD3d 945 [2008]; Matter of Ryan, 34 AD3d at 212; Matter of Fellows, 16 AD3d 995 [2005]).

The proof adduced by the proponent could lead a jury to conclude that the decedent had the power to resist undue influence, as demonstrated by the fact that he did not execute the instrument leaving his entire estate to his son. Furthermore, it is clear that the decedent was never completely isolated from either the objectants or their mother. On the other hand, the proof presented by the objectants on the issue of undue influence could lead a jury to conclude that the proponent's mother was caring for the decedent during his terminal illness, that she made it difficult for the objectants and their mother to communicate with or see the decedent, that she badgered the [*7]decedent to make a will leaving his entire estate to the proponent and that she threatened both to stop caring for the decedent and the estrangement of the proponent if he failed to do as she urged. The objectants also furnished proof indicating that the proponent, his wife and the decedent's brother attempted to influence the decedent's decision with regard to estate planning. Furthermore, instead of going to an attorney he had used before, including one who had prepared estate planning documents for him, the decedent went to a lawyer merely because he saw the lawyer's name on a window. It also appears that the decedent had a good relationship with all of his children. Although the proponent has offered a logical explanation for the instrument favoring him over objectants, to wit, that the decedent believed that his other children would receive millions from the money that he paid to their mother as a result of a divorce proceeding, it is not for the court to resolve the triable issues of fact relating to undue influence on a summary judgment motion. As the objectants presented sufficient circumstantial evidence in support of their undue influence objection to create an issue of fact, the branch of the proponent's motion seeking summary judgment dismissing the objection alleging undue influence is denied.

It is well settled that the proponent has the burden of proving by a preponderance of the evidence that the decedent possessed testamentary capacity by demonstrating that he: (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 his bounty and his relations with them (see Matter of Kumstar, 66 NY2d 691, 692 [1985]; Matter of McCloskey, 307 AD2d 737 [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).

The proponent's submissions clearly establish a prima facie case on the issue of testamentary capacity. Nonetheless, and notwithstanding that undue influence and testamentary capacity are clearly two separate and distinct issues, some of the factors that create triable issues of fact with regard to undue influence militate in favor of finding triable issues of fact as to testamentary capacity. These factors include, inter alia, the following: (1) the different shares that his children are to receive from his estate notwithstanding his apparent good relationship with all of them; (2) the medications that the decedent was taking to make living with cancer bearable; (3) the fact that several people close to the decedent, who was an experienced real estate entrepreneur, felt comfortable telling him how he should dispose of his estate; (4) the fact that the decedent went to a new lawyer to make his will which apparently was prepared based on documents that the decedent brought with him and that were prepared for him by another lawyer; and, (5) the absence of any in-depth discussion with the new attorney about the decedent's estate plan. The court is also concerned by the objectants' allegations that, at the time of the submission of the instant application, they had not received all of the decedent's relevant medical records due to the delay by the proponent in furnishing the requisite authorizations in proper form. Moreover, the proponent failed to furnish any persuasive authority to support his contention that all of the objectants are estopped from questioning the decedent's testamentary capacity because one of them accepted a wedding gift from the decedent after the date that the [*8]propounded instrument was executed. Accordingly, and giving every favorable inference to the objectants' proof, the branch of the proponent's motion seeking summary judgment dismissing the objections alleging lack of testamentary capacity is denied.

The objectants correctly cite Matter of Coniglio (242 AD2d 901 [1997]) for the proposition that they cannot prevail with respect to their objection alleging fraud unless they meet their burden of establishing that the proponent or his agent knowingly made a false statement to the decedent which induced him to make a testamentary disposition that he would not have made in the absence of that false statement. The false statement that allegedly was made to the decedent was that the objectants' mother received $3.5 million from the decedent in their divorce proceeding when, actually, she received slightly less than $2 million from him. Assuming, arguendo, that the proponent or his agent did in fact knowingly make such a false statement to the decedent, this does not in any way establish that the decedent was induced by this statement to favor the proponent in the will over his other children because, even under the objectants' analysis of the value of the assets their mother received from the divorce, they will, eventually, share in $2 million more than the proponent from the divorce settlement proceeds. Accordingly, the branch of the proponent's motion seeking summary judgment dismissing the objection alleging fraud is granted.

For the reasons stated herein, the objectants' two motions are denied except with respect to the medical records permitted herein, and the proponent's motion for summary judgment is granted to the limited extent that the objections alleging lack of due execution and fraud are dismissed, and otherwise, the motion is denied. Although the objectants may obtain the medical records indicated herein, any party, on or after December 5, 2011, 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.

Settle order incorporating the determinations herein.

SURROGATE