Matter of Feinberg

[*1] Matter of Feinberg 2012 NY Slip Op 51904(U) Decided on October 3, 2012 Sur Ct, Queens County Kelly, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 3, 2012
Sur Ct, Queens County

In the Matter of the Probate Proceeding, Will of Leon Feinberg, Deceased.



2010-3356



Altschul & Altschul

Attorney for Petitioner

by Jeffrey R. Paige, Esq.

Brendan P. Kearse, Esq.

Attorney for Objectant

Peter J. Kelly, J.

Offered for probate as the decedent's Last Will and Testament is an instrument dated November 22, 1999. Decedent's daughter, Randi Pulvermacher, has filed objections to its probate alleging that: (1) the alleged Will was not duly executed, as required by law; (2) the decedent was not capable of making a Will due to lack of testamentary capacity; (3) the alleged Will and it's execution were obtained through coercion and undue influence; and (4) the alleged Will and it's execution were obtained by fraud. Petitioner Martin Feinberg, the nominated executor and son of the decedent, now moves for summary judgment dismissing the objections. Objectant opposes the motion, arguing that there are genuine issues of fact with respect to each objection.

On November 22, 1999, decedent and his wife, Gertrude Feinberg, executed separate wills prepared and supervised by the same attorney and before the same attesting witnesses.

Gertrude Feinberg died in August 2004. Under the terms of her will, a credit shelter trust was created for the benefit of her husband and, upon his death, the trust funds were payable to petitioner. The residuary of her estate was given to her husband, or in the event he predeceased, ten percent was given to objectant in trust, and the balance to petitioner outright.

Gertrude Feinberg's will was admitted to probate without contest in April 2005. Shortly thereafter, Leon Feinberg filed a partial renunciation, forgoing his interest in the testamentary disposition under the trust provision of the will, in favor of petitioner.Leon Feinberg died on May 16, 2010, nearly six years after his wife's death. The provisions of the instrument propounded as his will mirrors those contained in Gertrude Feinberg's will; setting up a credit shelter trust for his wife with the trust funds payable to petitioner upon her death, and the residuary payable to his wife, or if she predeceased, ten percent in trust to objectant and the balance outright to petitioner.

Although exercised cautiously, summary judgment in a contested probate proceeding is [*2]proper where the proponent makes out a prima facie case for probate and the objectant fails to raise any genuine material issue of fact (Matter of Minervini, 297 AD2d 424; Matter of Coniglio, 242 AD2d 901). To defeat summary judgment, an objectant must assemble and lay bare affirmative proof to demonstrate the existence of a genuine triable issue of fact (see Stainless, Inc. v Employers Fire Ins. Co., 69 AD2d 27, affd 49 NY2d 924). Allegations must be specific and detailed, substantiated by evidence in the record; mere conclusory assertions will not suffice (Iselin & Co. v Mann Judd Landau, 71 NY2d 420; Matter of O'Hara, 85 AD2d 669). The papers submitted in support of and in opposition to the motion are scrutinized in a light most favorable to the party opposing the motion. If there is any doubt as to the existence of a triable issue of fact, the motion must be denied (Robinson v Strong Memorial Hosp., 98 AD2d 976).

Petitioner has the burden of proving that the propounded instrument was duly executed in conformity with the statutory requirements (see EPTL 3-2.1[a]; Matter of Collins, 60 NY2d 466; Matter of Rosen, 291 AD2d 562), and that the testator possessed testamentary capacity (see Matter of Kumstar, 66 NY2d 691; Matter of Hinman, 242 AD2d 900).

In support of the motion petitioner has submitted a copy of the purported will, which contains an attestation clause, a self-proving affidavit, the transcripts of the SCPA 1404 examination of the attorney-draftsman who supervised the execution ceremony, as well as those of the two attesting witnesses, and the affirmation of the attorney-draftsman. Based on these submissions, petitioner has made a prima facie showing of entitlement to summary judgment dismissing the objections based on lack of due execution and testamentary capacity.

In response, objectant states that issues of fact exist concerning lack of due execution because neither attesting witness had a specific recollection of the will signing. However, the two witnesses, the drafting attorney's mother who helped in the office and had witnessed many wills, and a former associate attorney in the office, both testified that the office employed a standard will signing procedure which complied with the provisions of EPTL 3-2.1.

Where the execution of a will is supervised by the attorney who drafted it, there is a presumption of regularity that the will was properly executed, and a self-proving affidavit also creates the presumption of due execution and constitutes prima facie evidence of the facts therein attested to by the witnesses (see Matter of Scaccia, 66 AD3d 1247, 1250-1251; Matter of James, 17 AD3d 366, 367). The presumption is not overcome by the mere inability of the attesting witnesses to specifically recall the will execution which predated their examination by eleven years (see Matter of Collins, 60 NY2d 466; Matter of Finocchio, 270 AD2d 418). In the absence of evidence disproving compliance with the statute in any of its particulars, the failure of the witnesses to now recollect the execution or what took place at the time does not defeat the will (see Matter of Collins, 60 NY2d 466, 469-471; Matter of Kellum, 52 NY 517, 519).

Objectant argues that the presumption afforded where the drafting attorney supervised the will execution should not apply here because the attorney was "associated" with petitioner.

It has been held that where a will has been prepared by an attorney associated with a beneficiary, an explanation of the relationship is called for (see Matter of Burke, 82 AD2d 260). Usually this goes to the issue of undue influence and generally arises where the attorney had no prior relationship with the decedent and was procured by the beneficiary.

The evidence submitted on the motion establishes that the drafting attorney had more than [*3]a ten year professional relationship with the decedent prior to the execution of the propounded will, and that it was the decedent himself, together with his wife, who sought out the attorney to draft his will. Although the attorney knew petitioner and had at times spoken to him over the telephone, he had never met him in person prior to the execution of the propounded will, and there is no evidence that he was personally connected with petitioner before then, or that the attorney acted to any extent under petitioner's direction. Therefore, objectant's assertion for not applying the presumption of due execution is without basis.

Objectant also argues that the former associate attorney's SCPA 1404 examination testimony is subject to question because petitioner's attorney paid him $600.00 instead of the statutory witness fee for his attendance, thus raising an issue of fact.

Although a witness need not be paid more than the statutory attendance fee and milage, there is nothing that expressly prohibits voluntary payments in excess thereof (see Caldwell v Cablevision Sys. Corp., 86 AD3d 46, 50). Notably, Rule 3.4(b)(1) of the New York Rules of Professional Conduct (22 NYCRR §1200.0) specifically provides that a "lawyer may advance, guarantee or acquiesce in the payment of ... reasonable compensation to a witness for the loss of time in attending, testifying, preparing to testify or otherwise assisting counsel, and reasonable related expenses."

While it is not improper to compensate a witness for his time, the amount of the payment must not be out of proportion to the value of the time spent testifying. Otherwise, an inference may arise that the payment was a fee for testifying which inclined the witness, whether intentionally or unconsciously, to give favorable testimony on behalf of the party who made the payment. In such a case, it would be proper to permit an exploration of the matter of compensation at trial, and permit the trier of fact to consider whether the payment had any effect on the witness's credibility (see Caldwell v Cablevision Sys. Corp., 86 AD3d at 55).

Here, however, the payment of $600.00 to cover an experienced private practitioner's expenses and time away from his office for a good portion of the day can not be considered so high or disproportionate to the value of his time as to reasonably give rise to any inference that the payment in any manner affected the content of his testimony.

Objectant raises the presence of staple holes in the will as another argument against summary judgment. It appears that there are additional staple holes in the pages of the will which are obscured by the wills cover-sheet. Petitioner's attorney testified at his examination that after its execution, the will was kept in his office until it was filed with the court for probate. Neither he nor the attesting witnesses, however, were able to give an explanation for the holes. Objectant implies that the cover-sheet to the will was affixed in a way so as to deliberately conceal the additional holes. Relying on this belief, she claims the evidence of the staple holes raises an issue of fact for the jury as to the genuineness of the will. The court disagrees.

The mere removal of staples or re-fastening of a will does not render the will invalid if the language of the pages is coherent and connected (Matter of Harrow, NYLJ, March 26, 1996, at 33, col 2). Here the propounded instrument mirrors the provisions in decedent's wife's will, establishing an identical testamentary plan, the pages are numbered serially, and each page is initialed. Furthermore, regardless of when and why the staples were removed, the evidence submitted is that the instrument was executed by decedent in the presence of his attorney and the witnesses and was [*4]kept in the attorney's office after its execution until it was filed with the court for probate. Objectant's belief that the holes were deliberately concealed is based on mere speculation and does not raise an genuine issue of fact (see Matter of Sweetland, 273 AD2d 739, 740).

With respect to testamentary capacity, it is noted that the self-proving affidavit alone creates a presumption that the testator possessed the capacity to make a will. Where challenged, however, the proponent bears the burden of proving that at the time of execution decedent understood in a general way the nature and consequences of executing a will, the nature of his property, and the natural objects of his bounty(see Matter of Kumstar, 66 NY2d 691, 692). The capacity to execute a valid will is minimal - lower than that required to execute most other legal documents or contracts (In re Coddington, 281 AD 143, affd 307 NY 181).

The question of testamentary capacity concerns a person's mental condition only at the time of the execution of the will; evidence relating to the condition of the testator before or after the execution is only significant insofar as it bears upon the strength or weakness of the testator's mind at the exact hour of the day of execution (In re Hedges, 100 AD2d 586). 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), or progressive dementia (see Matter of Friedman, 26 AD3d 723). Also, it has long been recognized that old age and physical weakness are not necessarily inconsistent with testamentary capacity (Children's Aid Soc. v Loveridge, 70 NY 387; Matter of Williams, 13 AD3d 954).

The SCPA 1404 testimony and affirmation of the attorney-draftsman, together with the testimony and the affidavit of the attesting witnesses, establish a prima facie case of testamentary capacity. The testimony of the attorney-draftsman shows that the decedent at the time was actively running a daily business and maintaining a rental property with his wife; that he and his wife came to the attorney for their wills with a basic plan in mind to leave the bulk of their assets to petitioner; that over a several month period discussions were held as to the terms of the proposed wills and the tax ramifications; that multiple drafts of the wills were provided before the instrument was finalized; and that the instrument was read and discussed before its execution.

The testimony of the attesting witnesses is devoid of any indication that the decedent lacked testamentary capacity during the instrument's execution. One of the attesting witnesses, although unable to give the specifics of the day, recalled meeting with the decedent and his wife prior to and after the will execution and testified she would have recognized if someone was suffering from a disease such as Alzheimer's.

In opposition, objectant contends that the decedent was simple and relied on his wife for complex matters. As noted, however, the capacity to make a will is minimal. Here the decedent was able to maintain a rental property, and he ran a business, even after his wife died, which requires more that the minimal capacity to make a will (see Matter of Burack, 201 AD2d 561). Furthermore, no medical evidence has been submitted suggesting that the decedent's faculties were impaired at the time the instrument was executed.

Objectant contends, however, that petitioner failed to establish that the decedent was knowledgeable about the full extent of his assets or the objects of his bounty.

The drafting attorney testified at his examination that he discussed with the decedent and his wife generally what they owned, and stated the decedent and his wife each owned fifty percent of the two business corporations. It appears, however, that previously over a period of years, decedent [*5]and his wife transferred up to possibly twenty percent of the shares of the corporations each to petitioner and objectant. The attorney also testified that he did not discuss with the decedent and his wife the value of their property. It is this testimony of the attorney that objectant points to in support of her contention that the decedent was not aware of the extent of his property.

The cited portion of the attorney's testimony is somewhat ambiguous, in that it is unclear whether it was merely the belief of the attorney that the decedent and his wife each owned fifty percent of the two corporations, or whether the decedent told him that they did. The issue, however, is not whether the attorney knew what the decedent's assets were but, rather, whether the decedent himself knew. The decedent need only have had a general, rather than a precise, knowledge of his assets (see Matter of Walker, 80 AD3d 865, 867).

Clearly the decedent was aware that he owned a business and rental property. His alleged mistaken belief that he and his wife wholly owned the business and rental property when, in fact, they had previously transferred a percentage of the shares of the corporations to petitioner and objectant, on this record does not raise an inference that he lacked capacity (see Matter of Gerdjikian, 8 AD3d 277, 278).[FN1]

Objectant further argues that it is questionable that the decedent understood the contents of the propounded will.

In this regard objectant relates that after her mother Gertrude passed away and she learned of the contents of her will, she asked the decedent why his and her mother's wills left ninety percent of their property to the petitioner and ten percent to her. She claims that in response to her inquiry the decedent denied that those terms were in the will and insisted that the wills provided for equal shares. She also relates another conversation wherein she claims the decedent told her that she was well taken care of in his will.

These alleged conversations, which would have taken place almost five years after the execution of the propounded will, if not later, and which would be inadmissible at trial upon objection pursuant to CPLR 4519, alone are insufficient on the present record to raise an inference that the decedent was unaware of the contents and nature of his will when executed so as to bar summary judgment (see Matter of Barr, 252 AD2d 875; Matter of Lockwood, 234 AD2d 782).

Objectant also contends that the will is a product of undue influence that was exerted over the decedent by the petitioner.

For a will to be denied probate based upon undue influence, " [i]t must be shown that the influence exercised amounted to a moral coercion, which restrained independent action and destroyed free agency, or which, by importunity which could not be resisted, constrained the testator to do that which was against his free will and desire, but which he was unable to refuse or too weak to resist' " (Matter of Walther, 6 NY2d 49, 53, quoting Children's Aid Soc. v Loveridge, 70 NY 387, 394). Although circumstantial evidence may be proffered to sustain a claim of undue influence, such indirect proof must be of a substantial nature (see Matter of Walther, 6 NY2d at 54; Matter of [*6]Zirinsky, 43 AD3d 946, 948). Mere speculation and conclusory allegations, without specificity as to where and when the influence was exerted are insuffient to raise an issue of fact (see Matter of Walker, 80 AD3d at 867).

The burden of proof ultimately rests with the objectant on this issue (see Matter of Anna, 248 NY 421; Matter of Ruef, 180 AD 203, affd 223 NY 582). Here objectant relies upon a presumed confidential relationship between the decedent and petitioner.

An inference of undue influence may be drawn where a confidential relationship existed (Ten Eyck v Whitbeck,156 NY 341). A confidential relationship may be inferred where a person in a position of trust and confidence has disparate power or influence over the decedent, such as an attorney, guardian, clergymen, doctor or nursing home director.[FN2]

Although the objectant ultimately bares the burden of establishing undue influence, if a confidential relationship existed between petitioner and the decedent, petitioner is required to come forward and offer an explanation, other than his influence, for the will (see In re Putnam's Will, 257 NY 140; Matter of Collins, 124 AD2d 48, 54).

Objectant argues that a confidential relationship existed between petitioner and the decedent. In support thereof, objectant points to the fact that petitioner would regularly speak to the decedent about the businesses and that, at the decedent's request, petitioner would deal with the tenants at the rental property.

Contrary to objectant's contention, these facts neither establish a confidential relationship as a matter of law, nor do they suggest a confidential relationship as a matter of fact. The record on this motion is devoid of any evidence that the decedent was dependent upon or subject to the control of petitioner.

In the absence of a confidential relationship requiring petitioner to offer an explanation for the provisions of the propounded will, there is no basis in the record for inferring that the decedent was unduly influenced to execute the instrument.

The evidence submitted establishes that the attorney who drafted the will had been the attorney for the two business entities owned by the decedent and his wife for many years prior to drafting the wills. The further evidence is that decedent and his wife were provided drafts of their proposed wills over a period of six months, giving them the opportunity to review together and discuss with the drafting attorney their testamentary plan. Moreover, there is no evidence that the petitioner, who resided in Texas, interfered with the drafting of the instruments, spoke to the attorney-draftsperson about the wills before their execution, was present during any conversations between the decedent or his wife and the attorney-draftsperson, was present during the execution of the documents, or even knew the contents of the wills beforehand. [*7]

Objectant's remaining objection is that the will is a product of fraud. To establish that a will is the product of fraud, the objectant must demonstrate by clear and convincing evidence that someone knowingly made a false statement which caused the decedent to execute a will that disposed of his property in a manner different from the disposition he would have made in the absence of that statement (see Matter of Marin, 82 AD3d 982, 983; Matter of Eastman, 63 AD3d 738, 740).Objectant alleges that she overheard petitioner urge the decedent over the telephone to make a will that punishes her. Nowhere in her submissions, however, does objectant identify any knowingly false statement made by petitioner which induced the decedent to make a will disposing of his property in a manner differently than he would have in the absence of that statement (see Matter of Evanchuck, 145 AD2d 559, 560). Accordingly, objectant has failed to raise a triable issue of fact as to fraud.

Petitioner having established a prima facie case for probate, and there being no genuine issues of fact as to execution, testamentary capacity, undue influence or fraud, the motion for summary judgment dismissing the objections is granted.

The court is satisfied that the will, dated November 22, 1999, is genuine, that it was duly executed, that at the time of its execution the decedent was in all respects competent to make a will, and that the decedent was not under restraint.

Accordingly the petition is granted. The will is admitted to probate and letters testamentary shall issue to the petitioner.

The request for the imposition of costs, expenses and legal fees is denied. The court does not find any evidence that the objections were filed in bad faith.

This is the decision and order of the court.

Settle decree.

Dated: October 3, 2012___________________________

SURROGATE Footnotes

Footnote 1: The Court notes that in objectant's responses to certain interrogatories which were addressed during her examination, objectant herself refers to petitioner as taking "one half" of each of the companies and of the decedent renouncing her mother's "fifty percent shares" of the corporations.

Footnote 2: A power of attorney may also give rise to a confidential relationship, but only where the traditional power dynamic of a confidential relationship is present (see Matter of Petix, 15 Misc 3d 1140A). Although there is evidence that in July 1999, during the initial will discussions, the decedent executed a statutory power of attorney naming petitioner and another person as agents, the power apparently was not delivered to either, and was never utilized.