Matter of Kolodny

[*1] Matter of Kolodny 2013 NY Slip Op 51168(U) Decided on July 17, 2013 Sur Ct, Dutchess County Pagones, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 17, 2013
Sur Ct, Dutchess County

In the Matter of the Probate Proceeding, Will of Ellen Kolodny a/k/a Ellen Plass Kolodny, Deceased.



2012-305

James D. Pagones, J.

The following papers numbered 1 through 12 were read and considered on this motion for summary judgment by the nominated fiduciary under the propounded instrument to dismiss the objections of decedent's granddaughter and distributee. In turn, the objectant cross-moves to dismiss the probate petition:

PAPERSPAGES Petitioner's Notice of Motion to Dismiss the Objections . . . . . . . . . . . . . . . . . . . 1 Petitioner's Affirmation in Support of her Motion . . . . . . . . . . . . . . . . . . .2 Exhibits. . . . . . . . . . . . . . . . . . .3-9 [*2]Objectant's Cross-Motion to Dismiss the Probate Petition . . . . . . . . . . . . . . . . . . . 10 Objectant's Affirmation in Opposition . . . . . . . . . . . . . . . . . . . 11 Petitioner's Reply to Objectant's Cross-Motion to Dismiss the Probate Petition . . . . . . . . . . . . . . . . . . . 12

Incident to a probate proceeding, the nominated fiduciary under the propounded instrument in the estate of Ellen Kolodny a/k/a Ellen Plass Kolodny moves to dismiss the objections of one of decedent's distributees, who in turn, cross-moves to dismiss the probate petition.

Contextually, decedent, age 107, died on March 20, 2012, survived by three distributees, her daughter and the nominated executrix herein, Olga Jeffery, and two grandchildren, Anatole Kolodny Colbert, Jr. and Cheryl Colbert ("Cheryl"), children of decedent's predeceased son, Anatole Kolodny Colbert.

Under the propounded instrument dated August 1, 1991, after several pre-residuary cash bequests, decedent left her real property to her daughter, and if her daughter predeceased her, to her son, the sole residuary beneficiary. The first codicil to the propounded instrument dated September 30, 1997, added a few small pre-residuary cash bequests. The second codicil dated September 3, 1999, again left decedent's real property to her daughter, but in the event that her daughter predeceased her, such property was to be divided equally among her daughter's three children subject to a life estate in decedent's son-in-law, Keith Jeffery.

Following decedent's death, the nominated fiduciary filed the probate petition, and decedent's distributee and granddaughter, Cheryl, filed objections sounding in a failure of due execution, fraud and undue influence. After SCPA 1404 examinations were completed and some document discovery exchanged, the proposed executrix filed a motion to dismiss Cheryl's objections, and objectant filed a cross-motion to dismiss the probate petition.

For the reasons set forth herein, petitioner's motion for summary judgment is granted, the objections are dismissed and objectant's cross-motion is denied in its entirety.

It is first noted that on review of objectant's cross-motion and responsive papers, it is apparent that she has abandoned all the objections she initially asserted sounding in fraud, undue influence and lack of testamentary capacity. The only remaining objection relates to the alleged failure of the decedent to subscribe her signature or acknowledge the execution of the instrument in the presence of the subscribing witnesses and to the alleged lack of any publication of the instrument as a will.

The formal requirements for the execution and attestation of wills are set forth in EPTL 3-2.1 (a) which provides, in pertinent part, that the will must be in writing, signed at the end thereof by the testatrix, the signature must be affixed in the presence of each of the attesting witnesses or acknowledged by the testatrix to each such witness to have been affixed by her, she must declare to each attesting witness that the instrument is her will, there shall be two witnesses whose attestations shall be within a 30-day period, and the witnesses must sign at the testator's request.

The proponent has the burden of demonstrating, by a preponderance of the evidence, that the purported will was duly executed (see, Matter of Falk, 47 AD3d 21 [1st Dept 2007], lv denied 10 NY3d 702 [2008]; Matter of Rosen, 291 AD2d 562 [2nd Dept 2002]; Matter of Tully, 227 AD2d 288 [1st Dept 1996]).

Although in situations where the attorney-draftsperson supervises the execution of a will, a presumption of regularity arises that the will was properly executed in all respects (see, Matter of Greene, 89 AD3d 941 [2nd Dept 2011]; Matter of Moskoff, 41 AD3d 481 [2nd Dept 2007]; Matter of Tuccio, 38 AD3d 791 [2nd Dept 2007], lv denied 9 NY3d 802 [2007]; Matter of James, 17 AD3d 366 [2nd Dept 2005]), there is no such presumption here as it is undisputed that there was no attorney present at the execution ceremony. It is also uncontroverted, however, that despite decedent's failure to procure self-proving affidavits, the witnesses to the testamentary instruments executed affidavits of attesting witnesses except for the witness to the first codicil, Myron Elmendorff, and this Court issued an order dispensing with [*3]his testimony [FN1].

The proponent has established, and it is undisputed that decedent's will and both codicils were drafted by an attorney who is now deceased and contain attestation clauses. It is well settled that a presumption of regularity or validity arises where the propounded instrument contains an attestation clause preceding the genuine signature of the attesting witnesses (see, Matter of Halpern, 76 AD3d 429 [1st Dept 2010], affd 16 NY3d 777 [2011]; Matter of Mooney, 74 AD3d 1073 [2nd Dept 2010]; Matter of Lubin, 30 Misc 3d 1234[A][Sur Ct, Bronx County 2011]), and is prima facie proof of the facts recited therein(see, Matter of Williams, 91 AD3d 661 [2nd Dept 2012]; Matter of Greene, 89 AD3d 941 [2nd Dept 2011]; Matter of Clapper, 279 AD2d 730 [3rd Dept 2001]; Matter of Yenei, 132 AD2d 870 [3rd Dept 1987]; Matter of Price, 254 AD 477 [1st Dept 1938], affd 294 NY 700 [1938]).

The testimony of the attesting witnesses is entitled to great weight even though the subscribing witnesses testify to the contrary or lack any recollection of the details of execution (see, Matter of Collins, 60 NY2d 466 [1983]; Matter of Malan, 56 AD3d 479 [2nd Dept 2008], lv denied 12 NY3d 702 [2009]; Matter of Leach, 3 AD3d 763 [3rd Dept 2004 ]; Matter of Rosen, 291 AD2d 562 [2nd Dept 2002]; Matter of Finocchio, 270 AD2d 418 [2nd Dept 2000]; Matter of Dujenski, 147 AD2d 958 [4th Dept 1989] where there were gaps in the witnesses' recollections of the circumstances under which they witnessed the will but the will was admitted to probate; Matter of Wilkinson, 2010 NY Slip Op 33075(U)[Sur Ct, Nassau County 2010]; Matter of Zoeller, 2009 NY Slip Op 33142(U)[Sur Ct, Nassau County 2009] where neither witness recalled the execution ceremony but identified their signatures on the will; Matter of Feurer, 2005 NY Misc LEXIS 5560, 234 NYLJ 22 [Sur Ct, New York County 2005] where neither witness remembered decedent executing her will which the court found understandable in light of the passage of time and all they had before them was a conformed copy; Matter of Cardwell, 176 Misc 1059 [Sur Ct, Kings County 1941] where a holographic will was admitted to probate, no attorney was present during the execution ceremony, and the only surviving witnesses to the instrument testified categorically that she did not see the testatrix subscribe her name to the instrument, that she did not see the signature on the instrument, that the decedent did not acknowledge or declare that she had signed it except to say that the instrument was her will).

Here, it is undisputed that decedent knew all of the witnesses to the propounded will and two codicils for many years prior to the signing of the instruments.

Scott Myers ("Myers") was a witness to all three instruments, and his former wife, Diane Ralston ("Ralston"), was the witness to the propounded will.Myers testified that he knew decedent for over twenty years. Despite the significant passage of time between the date of the will of August 1, 1991 and the date of his SCPA 1404 examination on January 30, 2013, he recalled that he was asked to witness decedent's will [FN2] and codicils [FN3] and did, in fact, serve as a witness [FN4] to all three instruments. He readily identified his signature [FN5] and the signature of his former wife, and the other witness [FN6] to the propounded instrument. He identified his signature on the first codicil [FN7], remembered sitting down at the table with decedent and going over her second codicil and specifically recalled decedent sitting next to him at the kitchen [*4]table requesting him to sign as a witness.[FN8]

Diane Ralston, formerly Myers and the other witness to the 1991 instrument, testified that she knew decedent [FN9], recalled that decedent had been clear and coherent [FN10] on August 1, 1991, and decedent recognized her and knew who she was.[FN11] Ralston was able to identify her signature on the 1991 instrument [FN12] and that of her former husband, Myers.[FN13]

The other witness to the first codicil, Myron Elmendorff is now deceased [FN14].

The second codicil was witnessed by Scott Myers, Anna M. Seibold ("Anna") and Dyton G. Seibold ("Dyton").

Anna testified that she knew the testatrix for many years and stated that her son married decedent's granddaughter.[FN15] She recalled that she was asked to be a witness to decedent's second codicil.[FN16] When shown the second codicil, she identified her signature.[FN17] She recollected that the execution ceremony took place at decedent's home [FN18], and on the date in question, decedent was jovial.[FN19]Anna stated that decedent recognized her and her husband, they spoke [FN20], and decedent asked her to sign the codicil.[FN21] She further testified that decedent's daughter was not present at the execution ceremony.

The third witness to the second codicil, Dyton G. Seibold, testified that he knew decedent well for a number of years.[FN22] He identified his signature and his wife's signature on the instrument.[FN23] He recalled being present at decedent's [*5]home on the date the instrument was signed [FN24], but he did not recall who initially asked him to serve as a witness.[FN25] Mr. Seibold testified that on the date of the execution, decedent was alert, and her general health seemed good. He recalled that they spoke [FN26], and testified that he observed decedent sign the document on that day.[FN27]

The court notes that although the recollections of the subscribing witnesses may be faulty as to the details of execution, the lack of any prior experience on the part of the subscribing witnesses rendered them unaware of the necessity of noting or recalling the essential formalities of execution. Moreover, in light of the passage of time which exceeded twenty-one years since the execution of the propounded instrument, an inflexible rule that the subscribing witnesses must remember in detail not only what they saw and heard but require them to recognize and identify the signature of decedent, might defeat the object of the statute (see, Matter of Collins, 60 NY2d 466 [1983]; Matter of Laudy, 161 NY 429 [1900]).[FN28]

Turning now to objectant's argument that proof of publication is lacking as the provisions of the propounded instrument were not read aloud during the execution ceremony, it is well settled that there is no requirement that the document be read aloud (see, EPTL 3-2.1 [a][3]; Matter of Hedges, 100 AD2d 586 [2nd Dept 1984], appeal dismissed 63 NY2d 944 [1984]; Matter of Lubin, 30 Misc 3d 1234[A][Sur Ct, Bronx County 2011]; Matter of Cohen, 2011 NY Slip Op 30415(U)(Sur Ct, Nassau County 2011]. "[S]ubstantial compliance will be sufficient and no particular form of words is required, or is necessary, to effect publication" (see, Matter of Pilon, 9 AD3d 771, 772 [3rd Dept 2004]). There need only be some "meeting of the minds between the testator and the attesting witnesses that the instrument they were being asked to sign as witnesses was testamentary in character" (see, Matter of Pirozzi, 238 AD2d 833 [3rd Dept 1997]; Matter of Roberts, 215 AD2d 666 [2nd Dept 1995]) and a request to have the witnesses sign the will can be inferred from the circumstances surrounding the entire execution (see, Matter of Seelig, 302 AD2d 721 [3rd Dept [*6]2003]; Matter of Buckten, 178 AD2d 981 [4th Dept 1991], lv denied 80 NY2d 752 [1992]; Matter of Lynch, 2011 NY Slip Op 33235(U)[Sur Ct, Nassau County 2011]; Matter of Farinon, 2011 NY Slip Op 33233(U)[Sur Ct, Nassau County 2011]). Here, the surrounding circumstances were sufficient to establish to the witnesses that the writing was a will (see, Matter of Pulvermacher, 305 NY 378 [1953] affd in part 305 NY 923 [1953]). As the witnesses' testimony makes clear, they knew the purpose of their visit to decedent at her home and that they were being asked to sign as witnesses. Based on the foregoing, a request to sign is inferable from the circumstances, and the testimony demonstrates substantial compliance with the minimum statutory prescription for execution of the testamentary instruments(see, Matter of Buckten, 178 AD2d 981 [4th Dept 1991], lv denied 80 NY2d 752 [1992]). Additionally compelling is that on all three occasions, decedent conducted the execution ceremonies without an attorney, at her home and not in the presence of any of the beneficiaries to the instruments.

Although exercised cautiously, summary judgment in a contested probate proceeding is proper where the proponent makes out a prima facie case for probate, and the objectant fails to raise any genuine material issue of fact (see, Matter of Minervini, 297 AD2d 423 [3rd Dept 2002]; Matter of Coniglio, 242 AD2d 901 [4th Dept 1997]). To defeat summary judgment, the 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 [1st Dept 1979], affd 49 NY2d 924 [1980]. Mere conclusory assertions will not suffice (see, William Iselin & Co. v Landau, 71 NY2d 420 [1988]).

Although objectant's responsive papers in support of her cross-motion to dismiss proponent's motion for summary judgment consist only of her attorney's affirmation, it is nonetheless incumbent upon Surrogate's Court to examine all of the circumstances surrounding the execution of the document in order to ascertain its validity (see, Matter of Collins, 60 NY2d 466 [1983]; Matter of Young, 289 AD2d 725 [3rd Dept 2001]).

Decedent's daughter, Olga Jeffery ("Jeffery") testified that her mother had lived for many years in New York City although she maintained real property in Rhinebeck, New York where she visited on the weekends until she relocated to the property in the 1980's. It is undisputed that decedent, her daughter, son-in-law and their children resided in separate residences located on the property for many years [FN29], and her son-in-law made certain improvements to the property.[FN30]

Proponent testified that she cared for decedent by herself up until 2002. She explained decedent lived on her own without assistance, but she brought her meals and performed other tasks.[FN31] After decedent fell and fractured her shoulder in 1997, deponent testified that decedent was not as active [FN32]. She stated that when she underwent major surgery in 2002, she was required to hire care givers for decedent.[FN33] Thereafter, decedent suffered a slight stroke [FN34], and her physician advised proponent that decedent required 24-hour care [FN35]. In view of the doctor's instructions, she was moved to a nursing home in 2007.[FN36]

This Court observes that decedent's estate plan was remarkably consistent. Under the propounded instrument, decedent gave all her personal and household possessions contained in her home to her son, divided all her tangible [*7]personal property including all insurance policies equally between her son and daughter,

gave her daughter the real property, and her son was named the sole beneficiary of her residuary estate and if he predeceased decedent, then to his children. The first codicil merely provided for a few additional cash bequests to benefit decedent's after-born great-grandchildren. The second codicil which objectant's counsel deems "the least important of the three instruments"[FN37] provided that following decedent's daughter's death, the real property be given to her daughter's children subject to a life estate in her son-in-law rather than her son.

It cannot be said under the circumstances presented herein that decedent's daughter and her children were not the natural objects of a gift of her real property in light of the close proximity of their homes on the property for many years, the daughter's role as a care giver to decedent, their close relationship and the improvements the Jeffery's had made to such property. Moreover, objectant's contention that under the terms of the propounded instrument she was virtually disinherited is devoid of any merit. It is observed that decedent's son was the beneficiary of her personal property and the sole beneficiary of her residuary estate, and if he predeceased decedent, which he did, the objectant and her sibling became the sole residuary beneficiaries of decedent's estate. Whether objectant's share of decedent's estate is not what she anticipated as her papers indicate, that claim cannot be properly addressed in the context of a contested probate proceeding and is thus not before this Court.

Finally, objectant's contention that decedent's daughter, at her mother's behest, arranged for an attorney (now deceased) located in White Plains, New York to draft decedent's will is more properly directed at an objection sounding in undue influence. As noted earlier, this objection has been abandoned. Even so, as decedent had not resided in Dutchess County but had been a long-term resident of New York County, it is not unusual that she would ask a family member for a recommendation as she knew few people in the area. Moreover, it is undisputed the attorney performed other services for decedent over the course of a decade.

The determination whether to dismiss objections and admit a will to probate is within the sound discretion of Surrogate's Court, and its determination will not be overturned absent a showing of an abuse thereof (see, Matter of Shapiro, 100 AD3d 1242 [3rd Dept 2012]; McInerny v McInerny, 79 AD3d 549 [1st Dept 2010], lv denied 16 NY3d 711 [2011]; Matter of Colverd, 52 AD3d 971 [3rd Dept 2008].

As the proponent met his burden of proof with respect to due execution and the objectant failed to raise any issue of fact for trial, the proponent's motion for summary judgment is granted, the objections are dismissed and objectant's cross-motion is denied.

In view of the foregoing, it is

ORDERED that, proponent's motion for summary judgment is granted, and the objections are dismissed, and it is further

ORDERED that, objectant's cross-motion is denied; and

It satisfactorily appearing that all persons required by law to be cited or who are interested in this proceeding have either failed to appear in response to a duly served citation or by their waiver and consent in writing duly executed and filed, waived the issuance and service upon them of a citation in this proceeding or have appeared and consented to the probate of the propounded instrument except Cheryl Colbert, who filed objections to such propounded instrument; and

Proofs having been duly filed on behalf of the attesting witnesses to the foregoing testamentary instrument; and it appearing by such proofs that the same were duly executed and are genuine and valid and that decedent at the time of the execution of such instrument was in all respects competent to make a will and not under restraint; and

The objections having been dismissed in their entirety, it is

ORDERED that the genuineness of the Will and the validity of its execution having been established to the satisfaction of this Court, it is admitted to probate pursuant to SCPA 1408 and EPTL 3-2.1

Submit decree on notice admitting the will to probate within ten (10) days of the date of this decision.

ENTER

___________________________________

HONORABLE JAMES D. PAGONES

Judge of the Surrogate's Court [*8]

TO:STEPHEN C.F. DIAMOND, ESQ.

TEAHAN & CONSTANTINO, LLP

Attorneys for Petitioner

OLGA JEFFERY

41 Front Street, Suite A

P.O. Box 1181

Millbrook, New York 12545

KEITH G. INGBER, ESQ.

GELLERT & KLEIN, P.C.

Attorneys for Objectant

CHERYL C. COLBERT

75 Washington Street

Poughkeepsie, New York 12601

071513 decision & order Footnotes

Footnote 1:The affidavit of attesting witness (after death) pursuant to SCPA 1406 provides in pertinent part that the witness has been shown the propounded instrument on the date indicated in the document, that the witness saw decedent subscribe his or her name at the place where decedent's signature appears and heard decedent declare such instrument to his or her last will and testament or codicil.

Footnote 2:Myers deposition, P. 4, L. 11.

Footnote 3:Myers deposition, P. 13, L. 23-25.

Footnote 4:Myers deposition, P. 5, L. 16.

Footnote 5:Myers deposition, P. 4, L. 24, P. 5, L. 3. 9-11, 13; P. 23, L. 14.

Footnote 6: Myers deposition, P. 23, L. 22, 24.

Footnote 7:Myers deposition, P. 12, L. 16, 23-24.

Footnote 8:Myers deposition, P. 12, L. 2-4; P. 13, L. 24-25; P. 14, L. 2-5, 20-22, 25; P. 15, L.2-4; P. 22; L. 6-7, 11-14, 16,

Footnote 9:Ralston deposition, P. 7, L. 13-14; P. 8, L. 1.

Footnote 10:Ralston deposition, P. 7, L. 17-23; P. 8, L. 8.

Footnote 11:Ralston deposition, P. 8, L. 1.

Footnote 12:Ralston deposition, P. 5, L. 25; P. 26, L. 1; P. 6, L. 12-16.

Footnote 13:Ralston deposition, P. 6, L. 4

Footnote 14:This Court issued an order dispensing with his testimony.

Footnote 15:Anna M. Seibold deposition, P. 4, L. 18-20, P. 5, L. 1-2.

Footnote 16:Anna M. Seibold deposition, P. 5, L. 5, 7, P. 6, L. 20-21.

Footnote 17:Anna M. Seibold deposition, P. 6, L. 1-2; P. 10, L. 6-7

Footnote 18:Anna M. Seibold deposition, P. 7, L. 11, 14, 17; P. 7, L. 23.

Footnote 19:Anna M. Seibold deposition, P. 8, L. 1-2, 5.

Footnote 20:Anna M. Seibold deposition, P. 8, L. 8, 11-12, 14, 17; P. 9, L. 15-17.

Footnote 21:Anna M. Seibold deposition, P. 9, L. 24-25.

Footnote 22:Dyton G. Seibold deposition, P. 4, L. 19-21, 23-25, P. 5, L. 1-2.

Footnote 23:Dyton G. Seibold deposition, P. 5, L. 20; P. 11, L. 18, L. 21.

Footnote 24:Dyton G. Seibold deposition, P. 6. L. 4, 7-8, 10-13, 16-17; P. 7, L. 6, 7, 10.

Footnote 25:Dyton G. Seibold deposition, P. 6, L. 20-21, 24

Footnote 26:Dyton G. Seibold deposition, P. 7, L. 14, 20, 22.

Footnote 27:Dyton G. Seibold deposition, P. 9, L. 9, 11, 22-24; P. 10, L. 3.

Footnote 28:The cases relied on by objectant are inapposite. For example, In Matter of Falk, 47 AD3d 21 [1st Dept 2007], the propounded instrument, drafted by an attorney just shortly before decedent's death, left her residuary estate to an unrelated care giver to the exclusion of her family. One of the witnesses to the instrument was paid for his services as a witnesses and testified that decedent spoke no English; the other witness testified that he could not understand decedent, who during the execution ceremony, was pointing to the sole residuary beneficiary who was present during such ceremony and the third witness contradicted his own testimony. In Matter of Yuster, 2010 NY Slip Op 52344(U) [Sur Ct, New York County], three years after decedent's will was admitted to probate, decedent's ex-wife sought to vacate the probate decree and probate a will signed a few months before his death which substantially altered the prior testamentary scheme. In Matter of Griffin, 81 AD2d 735 [3rd Dept 1981], only the final page of a four-page holographic document prepared by decedent who was not an attorney was presented at the execution ceremony. In Matter of Vickery, 167 AD2d 828 [4th Dept 1990], during the execution ceremony of the propounded instrument, decedent never spoke, no evidence was proffered to establish how the document was prepared or that the son was acting as the testatrix' agent. In Matter of Covo, NYLJ, May 13, 2009 at 40, col 5 [Sur Ct, New York County], decedent, who was gravely ill and on oxygen, signed a purported testamentary just prior to her death which markedly deviated from her prior estate plan. One of the residuary beneficiaries remained in the room with decedent throughout the execution ceremony. Decedent allegedly spoke French yet one of witnesses testified he spoke English and Hebrew but did not understand French. The other witness testified that decedent was not talking, looked very sick and was "very quiet and very slow". When asked whether decedent was forced to sign the instrument, he responded: "I don't know what to tell you". "But was she forced or not forced, I don't know". The remaining cases cited by objectant are similarly inapplicable to the matter presented herein.

Footnote 29:Jeffery deposition, P. 5, L16, 18-20, 22, 24; P. 6, L. 22, L. 25.

Footnote 30:Jeffery deposition, P. 6, L. 25; P. 7, L. 2-6.

Footnote 31:Jeffery deposition, P. 35, L. 15, 17-19, 23.

Footnote 32:Jeffery deposition, P. P. 35, L.5-13.

Footnote 33:Jeffery deposition, P. 9, L. 2-3, 10-11.

Footnote 34:Jeffery deposition, P. 9, L. 4-7; P. 8, L. 25.

Footnote 35:Jeffery deposition, P. 9, L. 4-7.

Footnote 36:Jeffery deposition, P. 8, L. 22, P. 11, L. 7-12.

Footnote 37:Objectant's attorney's affidavit in support of her cross-motion to dismiss, P. 5, para. 15.