Matter of Gross

[*1] Matter of Gross 2011 NY Slip Op 52473(U) Decided on December 7, 2011 Sur Ct, New York County Anderson, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 7, 2011
Sur Ct, New York County

In the Matter of Probate Proceeding, Will of Sarah Gross, Deceased.



2006-4234

Nora S. Anderson, J.

In this probate proceeding in the estate of Sarah Gross, proponent moved for summary judgment dismissing the objections and admitting the will to probate. However, after the motion was filed, it was discovered that, although the objections had been timely served on proponent's counsel, they had not been filed with the court. After proponent refused to consent to the filing of objections under these circumstances, the proposed objectants moved for an order extending their time to file.[FN1]

As a threshold matter, we must determine whether the objections should be deemed untimely. The court has discretion to allow the filing of objections beyond the time limitation established in SCPA § 1410, since the court has an independent obligation to determine whether a will offered for probate is valid (see SCPA § 1408; see also Matter of Orlowski, 281 AD2d 422 [2d Dept 2001]).

Here, contrary to proponent's contention, there is no basis upon which to deny the motion. This is not a case where the proponent did not receive notice of the objections. The failure of counsel to file by the technical deadline had no adverse effect on proponent, who proceeded with the litigation in due course, ultimately seeking summary dismissal of the very objections that he now claims should be rejected. Further, as discussed below, the propounded instrument disinherits two of decedent's three children and was drafted by the sole beneficiary's neighbor and attorney. Under such circumstances, it is appropriate to permit further inquiry into the circumstances surrounding the execution of the will. Accordingly, the court, in its discretion, grants the motion seeking permission to file late objections.[FN2]

With respect to the merits of the motion for summary judgment, Sarah Gross died on October 18, 2006, at the age of 94, survived by two daughters and a son. Under the propounded [*2]instrument, executed more than 17 years earlier,[FN3] decedent left her estate, including a cooperative apartment in Manhattan now worth approximately $450,000, to her daughter and nominated executor, Doris Cohen.[FN4] The attesting witnesses were the attorney-drafter, who handwrote the dispositive provisions of the instrument on a Blumberg form, and two of decedent's grandchildren, Barry and Michael Cohen (Doris's sons), each of whom signed an attestation clause.

Doris offered the instrument for probate shortly after her mother's death, but died after SCPA § 1404 examinations were requested by decedent's other two children, Francine Gudin and Robert Gross. Doris's husband, Gerald Cohen, as the executor of Doris's estate, then sought probate of the propounded instrument and temporary letters of administration, which issued to him in May 2008. Thereafter, Robert and Francine filed objections, alleging lack of capacity, lack of due execution, and fraud and undue influence on the part of Doris Cohen or some other person acting in concert with her.[FN5]

Discussion

The general rules regarding summary judgment are well known and need not be repeated here (see e.g. Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]; S.J. Capelin Assoc., Inc. v Globe Mfg. Corp., 34 NY2d 338 [1974]). In the context of a probate proceeding, summary judgment may be granted where a proponent makes a prima facie case for probate and the objectant fails to raise a material issue of fact (see e.g. Matter of Schlaeger, 74 AD3d 405 [1st Dept 2010]; Matter of Korn, 25 AD3d 379 [1st Dept 2006]).

Testamentary Capacity [*3]

On the issue of testamentary capacity, proponent has the burden of establishing that decedent was competent to make a will, i.e., that she understood the nature and extent of her property, the natural objects of her bounty and the provisions of the instrument (see e.g. Matter of Kumstar, 66 NY2d 691 1985]).

Here, proponent met his initial burden by submitting detailed affidavits by the attorney-drafter and the other witnesses which unequivocally describe decedent as a person who possessed the aforementioned components of testamentary capacity at the time that the propounded instrument was executed.

In opposition, objectants offer no medical records suggesting that decedent's faculties were impaired at the time the propounded instrument was executed. They offer only the uncorroborated deposition testimony of objectant Francine Gudin, who claims that her mother had been "confused" and suffered from dementia at the time. However, she could offer no details of her mother's condition at the time of the instrument's execution. When asked why she thought her mother was "confused," she testified: "I don't remember."

It is undisputed that, at the time the instrument was executed in 1989, decedent was living independently and working as a registrar at Beth Israel Hospital. Upon her retirement in 1994, she continued to live on her own until she entered a nursing home approximately three years prior to her death. Indeed, by Francine's own account, decedent took care of herself and her finances for years after the propounded instrument was executed. Under these circumstances, objectants have failed to raise a material issue of fact concerning decedent's testamentary capacity and, accordingly, the objection is dismissed.

Due Execution

Proponent also has the burden of proving that the propounded instrument was duly executed, i.e., that it was executed in accordance with the requisite formalities of EPTL § 3-2.1 (see e.g. Matter of Tully, 227 AD2d 288 [1st Dept 1996]). However, where the execution of the instrument was supervised by an attorney, there is a presumption of due execution (see e.g. Matter of Kindberg, 207 NY 220 [1912]; Matter of Halpern, 76 AD3d 429 [1st dept 2010], affd 16 NY3d 777 [2011]). In addition, in the absence of conflicting proof, an attestation clause will also serve as prima facie evidence that the will was duly executed (see e.g. Matter of Collins, 60 NY2d 466 [1983]; Matter of Falk, 47 AD3d 21 [1st Dept 2007).

Here, the execution of the instrument was supervised by an attorney. Also, the instrument contained an attestation clause. The affidavits of the attesting witnesses, one of whom was the attorney-drafter, demonstrated that all statutory formalities were met. Proponent has thus submitted prima facie evidence that the instrument was executed in accordance with EPTL § 3-2.1. [*4]

In opposing the motion, objectants rely on selective deposition testimony of the attesting witnesses. Objectants contend that the attorney-drafter's failure to recall the details of the execution ceremony is sufficient to preclude summary judgment. They further argue that the witnesses's testimony raises a fact issue concerning whether decedent declared the propounded instrument to be her last will and testament and whether the witnesses signed the will at the request of the testator as required under EPTL § 3-2.1(a)(3) and (4).

These arguments are without merit. The mere fact that the attorney-drafter/witness did not remember the specific details of the execution ceremony, which predated his deposition by more than 18 years, does not create a fact issue (see e.g. Matter of Collins, 60 NY2d 466, supra; Matter of Tully, NYLJ, July 24, 1995, at 23, col 1, affd 227 AD2d 288 [1st Dept 1996]). The attorney-drafter testified that, over the course of his more than 30-year career, he had drafted and supervised the execution of many wills, that in doing so he followed a "normal procedure," and that he was certain that he had followed such procedure that day.[FN6] Such procedure, as described by the attorney-draftman, meets the requirements of EPTL § 3-2.1.

Further, consistent with the attestation clause they signed, decedent's grandchildren testified that decedent had requested that they witness her will before affixing their signature to the instrument. One grandchild testified that he placed his signature on the propounded instrument after his grandmother "asked [him] to sign as her witness." The other grandchild testified that he was "called into the kitchen by [his] grandmother to witness her signature on the will." These assertions were re-stated in each of their affidavits in support of the motion. Based on the collective testimony of the witnesses, the court finds that all statutory requirements for due execution were met.

The testimony of the grandchildren that they had not seen their grandmother read the will or acknowledge its specific contents to anyone is immaterial. EPTL § 3-2.1 does not require that the witnesses be present at such events. Nor does their testimony contradict that of the attorney-drafter, who stated that his "normal procedure" was to discuss the contents of the will and ask the testator to read the will before calling in the witnesses and having the testator sign and publish the will in their presence. Under these circumstances, the objection as to due execution is dismissed.

Undue Influence and Fraud

Although objections based upon fraud and undue influence are often discussed in tandem, the two concepts are distinct. Fraud requires a showing that a false statement caused decedent to execute a will that disposed of her property in a manner different from the disposition she would have made in the absence of such statement (see e.g. Matter of Ryan, 34 AD3d 212 [1st Dept 2006], citing Matter of Evanchuck, 145 AD2d 559 [2d Dept 1988]). Undue influence, on the other hand, requires a showing that the propounded instrument resulted from influence that "amounted to a moral coercion, which restrained independent action and destroyed free agency, [*5]or which, by importunity could not be resisted, constrained the testator to do that which was against his free will and desire . . . ." (Children's Aid Society v Loveridge, 70 NY 387, 394 [1877]; see also Matter of Kumstar, 66 NY2d 691, supra). Motive, opportunity and the actual exercise of undue influence must be demonstrated (see e.g. Matter of Walther, 6 NY2d 49 [1959]). Undue influence "may . . . be proved by circumstantial evidence, but this evidence . . . must be of a substantial nature" (id. at 54). With regard to both issues, objectant bears the burden of proof (see e.g. Matter of Schillinger, 258 NY 186 [1931])

Here, proponent offered evidence which demonstrated that the drafting and execution of the instrument were knowingly performed and, in response, objectant failed to offer any evidence that anyone deliberately "made a false statement to the testator which caused [her] to execute a will that disposed of [her] property in a manner differently than [she] would have in the absence of that statement" (Matter of Evanchuck, 145 AD2d 559, 560, supra, citing Matter of Beneway, 272 App Div 463 [3d Dept 1947]). Under these circumstances, objectants have failed to create a fact issue as to fraud and the objection is dismissed.

As for undue influence, proponent has made a prima facie showing that the propounded instrument was the product of decedent's free will. Among the proofs submitted was undisputed evidence that the propounded instrument was executed 17 years before decedent's death at a time when she was living independently and managing her own finances. The affidavits of the witnesses, including the attorney-drafter, provide nothing from which to infer that the propounded instrument was anything other than a product of decedent's own intent.

Further, although Doris was present for the drafting and execution of the instrument, the attorney-drafter's affidavit is devoid of any suggestion that anyone other than decedent gave instructions to him concerning decedent's testamentary plan or that decedent was pressured in any way. Indeed, the attorney-drafter's affidavit is unequivocal on this point. He received his instructions regarding the content of the propounded instrument only from decedent, who was so intent on executing it that she rejected his suggestion that she delay its execution so that he could have the instrument typewritten at his office.

The circumstances that led to the drafting and execution of the instrument are not well developed in the record in part because Doris died before she could be deposed. Thus, there is no explanation for why Doris's neighbor and friend was selected to draft the instrument and why it was not decedent, but rather, Doris or her husband who called him to come to the house the day the instrument was drafted and executed. However, it is undisputed that decedent had met the attorney-drafter, Mr. Meyerson, "many times" over the years at Doris' home and at various social events hosted by Doris. Further, according to one of decedent's grandsons, decedent had previously discussed with him that she was going to execute a will with the assistance of Mr. Meyerson and that she wanted her grandson to be a witness, which indicates that decedent had been making independent plans to execute a will.

Objectants contend, based solely upon the self-serving deposition testimony of Francine,[FN7] [*6]that the propounded instrument was inconsistent with decedent's pattern of gift giving and previously expressed wishes (made at unspecified times) that her assets be equally distributed among her children. They argue that this purported change of testamentary plan, when considered along with Doris's involvement in the drafting and execution of the instrument, is sufficient to raise a question of fact as to undue influence, particularly because, according to them, Doris and decedent had a confidential relationship.

A confidential relationship between a testator and a beneficiary in and of itself does not support an inference of undue influence. However, where such a relationship exists and there is circumstantial evidence supporting the claim, such as the beneficiary's involvement in obtaining the will's execution, an inference of undue influence may be drawn (see e.g. Matter of Neenan, 35 AD3d 475 [2d Dept 2006]; see also PJI 7:56 and 7:56.1). In a probate contest, such an inference does not shift the burden of proof, but it does require the beneficiary to provide a satisfactory explanation for the bequest and to show that it was fair and free from undue influence (see e.g. Matter of Bach, 133 AD2d 455 [2d Dept 1987]; see also PJI 7:56 and 7:56.1).

Here, however, the record is devoid of facts suggesting a confidential relationship as a matter of law since objectants have not offered proof that Doris was in a fiduciary relationship with her mother as her attorney-in-fact or otherwise. Nor, have objectants offered evidence to suggest a confidential relationship as a matter of fact, i.e., that decedent was "dependent upon or subject to the control" of Doris or anyone else for that matter (Matter of Smith, 95 NY 516, 522). Indeed, it is undisputed that, at the time the instrument was executed, decedent was living on her own, handling her own finances and working at Beth Israel Hospital. Doris saw her mother regularly on the weekends, but so did her sister, Francine. The provision of companionship to a parent without more does not elevate Doris's relationship with her mother to one of a confidential nature. And, even if it did, under the circumstances here, decedent's close familial relationship with Doris would "counterbalance" the inference of undue influence (see e.g. Matter of Walther, 6 NY2d 49, supra; see also NY PJI 7:56, Comment).

Without a confidential relationship, objectants are left with only scant circumstantial evidence suggesting undue influence. Francine's uncorroborated statements asserting that decedent wanted to distribute her assets equally among her children is self-serving hearsay that would be barred at trial (CPLR 4519) and, in any event, cannot be attributed to any specific time period. In view of the attorney-drafter's unchallenged testimony that Doris was a passive presence at the drafting and execution of the instrument, any involvement Doris had in the event cannot be considered evidence of a "substantial nature" (Matter of Walther, 6 NY2d at 54, supra).

Given that decedent was living independently for years after the propounded instrument was executed, it is clear decedent was in a position to change her testamentary plan without the knowledge of Doris had she been inclined to do so. Objectants ignore the well-settled proposition that the mere fact that a testator favored one child over another is not a sufficient basis upon which to infer that a propounded instrument was the product of undue influence (see e.g. Matter of Fiumara, 47 NY2d 845, supra). [*7]

Moreover, it is important to note that, at the time of the propounded instrument's execution, decedent's primary asset was her cooperative apartment. Objectants do not challenge proponent's contention that, at this time, the apartment had a value of approximately $5000 because of the limited equity rules of the cooperative corporation that required that shares be sold back to the corporation at the purchase price. It was not until years later that the cooperative shareholders voted to lift those restrictions so that apartments could be sold at fair market value. Consequently, there can be no dispute that, at the time decedent made the bequest of the apartment to Doris, it did not have the significance that it would have later.[FN8] Further, according to decedent's grandson, decedent wanted to give the apartment to Doris as a token of her appreciation that Doris had taken her father, decedent's husband, into her home to care for him after he had a stroke.

In the end, "while the evidence . . . may be consistent with the hypothesis that the chief beneficiary induced the will by undue influence, the evidence is equally consistent with the assumption that the will expressed the decedent's own voluntary intent" (Matter of Walther, 6 NY2d at 54, supra). Under these circumstances, there can be no factual issue concerning undue influence to submit to a jury (id. at 56). The objection alleging undue influence is therefore dismissed.

For the foregoing reasons, the court is satisfied that the will, dated August 28, 1989, is genuine, that it was validly executed, and that at the time of execution decedent was competent to make a will and not under restraint (EPTL 3-2.1;

SCPA § 1408).

Settle decree.

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S U R R O G A T E

Dated: December, 2011 Footnotes

Footnote 1:The court permitted the filing of the objections subject tothe outcome of the motion.

Footnote 2:Upon the granting of the motion, jurisdiction in the probate

proceeding will remain complete, since all those whose interestswould be affected by the outcome of the proceeding have appearedand, therefore, a SCPA § 1411 citation is not required.

Footnote 3:Although the propounded instrument indicates that it wasexecuted on Monday, August 28, 1989, the testimony establishes thatit was actually executed a day or two earlier, during one ofdecedent's regular weekend visits to Doris's home. The recorddemonstrates that the date, as written, was a clerical mistake bythe attorney-drafter (see e.g. Matter of Wunder, NYLJ, Oct. 29,2001, at 23, col 1; Matter of Sutton, NYLJ, Jan. 2, 2002, at 5, col4).

Footnote 4:The propounded instrument appears to have been the onlytestamentary instrument executed by decedent.

Footnote 5:Objectants also allege that the propounded instrument was"obtained, if obtained at all, based upon a mistaken belief heldby" decedent. However, they do not identify or particularize the"mistaken belief." Indeed, objectants are silent as to thisobjection, addressing only the above-referenced objections. Underthe circumstances, the objection appears to be nothing more than arestatement of other objections and will be treated as such (Matterof Kemble, 149 AD2d 899 [3d Dept 1989]).

Footnote 6:In his affidavit in support of the motion for summaryjudgment, the attorney-drafter states this as well.

Footnote 7:Francine did not submit an affidavit in opposition to themotion.

Footnote 8:There is nothing in the record indicating what Doris'sfinancial circumstances was in comparison with her siblings'.