Matter of Panebianco

[*1] Matter of Panebianco 2015 NY Slip Op 51903(U) Decided on December 23, 2015 Surrogate's Court, Westchester County Walsh, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 23, 2015
Surrogate's Court, Westchester County

In the Matter of the Estate of Nicholas G. Panebianco, Deceased.



2013-1814



DelBello Donnellan

One North Lexington Avenue

White Plains, NY 10601

Ruskin Moscou

1425 RXR Plaza

Uniondale, NY 11556

Cullen & Dykman

44 Wall Street

New York, NY 10005

Bernadette Kenny, Esq.

48 Wilson Park Drive

Tarrytown, NY 10591

Manialardi & Berardino

111 North Central Avenue

Hartsdale, NY 10530

Office of the Attorney General

120 Broadway

New York, NY 10271

Attention: Deborah McCarthy, Esq.
Thomas E. Walsh, J.

In this contested probate proceeding, Howard Simowitz ("Howard"), the proponent for the probate of an instrument dated June 4, 2013, in the estate of Nicholas G. Panebianco, moves for an order granting summary judgment, dismissing the objections filed by John A. Panebianco and Nicholas M. Panebianco (the "Panebianco nephews"), Robert Pane, John Pane and Camille Pane (the "Pane children") (collectively, the "objectants"). The motion is opposed by the objectants. The motion is decided as set forth [*2]below.

The record supplies the following facts:

The decedent had six brothers and two sisters; both sisters died in infancy and one brother died at the age of six. Left surviving were the decedent and his five brothers (Daniel Panebianco "Daniel", Andrew Pane "Andrew", Dominick Panebianco "Dominick", John T. Pane "Jack" and Marco Panebianco "Marco").

On December 17, 1951, the decedent, who was 21 years old, went to see a physician complaining of episodes of drowsiness. According to medical records, the decedent had narcolepsy since the age of 14.

The decedent, Daniel, and Andrew neither married nor had children. These three siblings lived and worked together in a home heating business called Super Fuel Corp. ("Super") which was formed in 1907 by their father. Andrew was also a Roman Catholic priest and an attorney.

Marco, Dominick, and Jack married, and each had children. Marco, who died in 1981, left surviving the Panebianco nephews.Dominick had a son who died in 1992, and then Dominick died in 2008. Jack, who died on May 20, 2013, left the three Pane children.

In or about 1998, Howard, who performed personal and business accounting services for Daniel, Andrew, and the decedent, moved to Florida. He continued to conduct his business from his new home, engaging the services of Roy Brigagliano ("Roy") to assist him in New York as needed.

In 2008, medical records from Dr. Steven E. Vogl, the decedent's oncologist, state that the decedent got dizzy every day and that he was depressed despite taking Lexapro and Provigil for his narcolepsy.

In 2011, Andrew consulted Andrew Balint, Esq. to obtain wills for Daniel, the decedent, and himself. Attorney Balint testified that Andrew gave him an outline of what the wills would state, and then he would prepare them.

On June 29, 2011, the three brothers executed instruments in which their assets would be left to the survivor brothers, and on the last to die, their shares in Fratres Corp., which owned real property in the Bronx, and their interest in another Bronx property would be distributed to Timothy Bunyan ("Timothy"), a long-standing employee of theirs; certain other property in the Bronx went to the Panebianco nephews; and their remaining assets were to be distributed equally to the objectants. The brothers were named as executor and successor in each other's instruments, and on the last to die, nephew Nicholas would be the successor fiduciary. Timothy acted as a witness to the execution of this instrument.On August 25, 2011, the decedent, Andrew and Daniel executed new instruments which had the exact same provisions as the June 29, 2011 instruments. The instruments were re-witnessed because Timothy, who was receiving a bequest had acted as a witness.On March 28, 2012, Daniel died.

On May 22, 2012, at Our Lady of Consolation ("Our Lady"), a home for retired priests, where Andrew resided the last few years of his life, the decedent and Andrew executed new instruments in which each brother left his entire estate to the other. The remaining bequests were identical to the August 25, 2011 instruments with the exception that Timothy would also receive, upon the death of the last brother, all shares of Super and its subsidiaries. Each was the other's fiduciary, and in addition, nephew John was added as a successor executor. In Andrew's instrument only, if the decedent predeceased, there [*3]was a provision for a cooperative apartment in Bronxville, NY, to be distributed to the Ursuline Order of Nuns. There was also the following added language with respect to the devise of real property to the Panebianco nephews: "In making this devise, I am not unmindful of the children of my brother John T. Pane, who have the benefit of the prior conveyance of certain real property in Long Island, NY".

On June 2, 2012, Andrew died. Andrew's will was admitted to probate, and the decedent became the fiduciary of his brother's estate.

On June 17, 2012, Marion Linden ("Marion"), a friend of Andrew's, wrote a memo to the decedent regarding Andrew. She testified that she had been helping Andrew organize his mail, including his financial documents, during the last few years of his life. The memo detailed the following: Andrew had lent money to certain individuals, including $5,000.00 to a priest; he had invested with other individuals; and he wanted to be repaid for these loans. It also stated that Andrew was upset with Mary Lynch ("Mary"), who worked at Our Lady, because she reviewed some of his brokerage statements to discern his net worth.

Howard testified that, a week or two after Andrew's death, he had spoken to Mary who informed him of a pledge that Andrew had made to Cardinal Dolan. He told her to talk to the decedent. Mary testified that she may have had a conversation with Howard about his talking to Andrew concerning a donation for a new chapel.

On October 11, 2012, Howard called attorney Balint and asked him for a copy of the decedent's will. Attorney Balint memorialized this conversation in a memo in which he stated, among other things, that he had called the decedent to confirm that it was okay to send the document to Howard; the decedent expressed to him that he was not sure why Howard would want a copy of the will, and the decedent hesitated and ultimately agreed to have the instrument sent to Howard.

On October 18, 2012, Dr. Vogl saw the decedent and wrote that the patient was "very forgetful, less suspicious [and] still dizzy".

Attorney Balint testified that, sometime in late 2012, he learned for the first time, the extent of the decedent's assets when he met with him concerning the form 706 estate tax return to be filed in Daniel's estate. When he saw the value of the estate, attorney Balint said to the decedent, "God has given you the opportunity to do a lot of good for a lot of people", and, "there are so many organizations in the world, ... [who] see to the welfare of people who have nothing". When asked at his deposition what he meant by that, attorney Balint stated "I think our society has become so accustomed to fatten up their estates and everything without thinking of people who never had the opportunity to have anything".

Howard testified that in March 2013, he visited the decedent to discuss various things, including his brothers' estates and the decedent's estate plan. At this time, the decedent gave Howard a $100,000.00 gift. Howard's testimony on the issue was as follows:

Q. Was there any discussion with [the decedent] about providing any type of bequest for you in his will?

A. He asked me so I told him that it wasn't necessary.

Q. What did he ask you?

A. What should I do for you. I said other than the fact that I would administer your estate if you didn't give your monies away during your lifetime, because [*4]the purpose of our meeting in March was to determine how he was to give his money away in lifetime with him getting all this income from both estates which we were finalizing in 2013, to give it away during his lifetime and for me not to even get an executor's fee because I knew he would give it away in his lifetime.

He said to me nicely what do you need. I said I am taking care of myself, do what you need to do, which is the Catholic charities, by all means.

* * *

Q. Did [the decedent] make any lifetime gifts that you're aware of in the last three years of his life?

A. Yes.

Q. And what were the nature of those gifts?

A. A gift to me for $100,000.00.

Howard testified that, in advance of this visit with the decedent, he prepared a memo to him which detailed their relationship, the friendship they had and all Howard had done for the decedent. The decedent told him that he did not want to see it, and Howard did not retain a copy of that memo. The decedent drew a check on that day for $100,000.00 to Howard from the estate of Andrew.

Also in March 2013, Howard called attorney Balint and mentioned the writing of a new will for the decedent. According to attorney Balint's testimony, Howard told him what the new will should contain including that the residuary estate would go to the Jesuits and the Salesians, and there would be a significant gift to the Archdiocese.

On March 20, 2013, attorney Balint wrote a memo to file in which he stated that he spoke with the decedent that day about doing a new will, and the decedent "indicated that everything on the will he signed on 5/22/12 was pretty much the same but that the residuary estate would be divided equally between the Jesuits and the Salesians", and Howard and Roy would be the executors.

On March 28, 2013, according to attorney Balint's testimony, he had a meeting with the decedent at his home with regard to making a new will, and they reviewed the initial draft of the new instrument.

On April 1, 2013, attorney Balint wrote a memo to file which stated, among other things, that he met with the decedent on March 28, 2013 at his home with regard to a new will, the decedent asked him whether Howard "would be getting anything other than commissions" and he responded that "it was a decision he would have to make because it [was] his will."

On April 22, 2013, Dr. Vogl wrote a report in which he stated that the decedent had missed his appointment from the previous week; he "pushed [the decedent] to come in today"; he urged the decedent to go for surgery before the tumor became unresectable; he explained to the decedent that "chemo will be difficult, perhaps impossible for him to complete, and have only a slim chance of eradicating tumor in RT field; and if he died from surgical complications he would only lose months of misery as the cancer kills him but if the surgery was successful, he had a chance". The doctor also stated that the decedent saw Dr. Keller who reported that he was a surgical candidate but "thinks his lack of social support systems will lead to a long convalescence"; and the "alternative is [*5]chemoradiotherapy, a grueling prospect for a frail 82 year old who is slightly demented and had no support network".

Also on April 22, 2013, Richard M. Potenza, M.D. wrote a report stating that the decedent complained that he was getting dizzy very often, and he has orthostatic hypotension, significant aortic stenosis, and "dizziness/lightheadedness since the completion of his radiation/chemotherapy [which the decedent described as "a dullness or fogginess in his head which makes it very difficult to concentrate on reading"]. The notes also indicate that the decedent was suffering from depression due to the death of his brothers, was being followed by a psychiatrist and had 21 other health issues.

On May 20, 2013, attorney Balint wrote a memo to file in which he stated that he spoke to the decedent that day; the first page of the May 22, 2012 instrument could remain but that the second page needed to be changed; "since [the decedent] has nobody else he name [sic] Howard ... and Roy ... to be his co-executors"; and he would prepare a draft of the new instrument for the decedent's review.

On May 22, 2013, the decedent was admitted to Montefiore Hospital. The decedent's chart stated that while he was oriented to person, he was not oriented to time or place and was confused. The notes further indicate that he was "reoriented to place and time, periodic awareness done".

On May 24, 2013, Montefiore Hospital notes reflect that the decedent presented with a lung mass extending to his chest wall and an artery clot was found, and he was suffering periods of confusion.

On May 26, 2013, the nurses' notes reflect that the decedent had periods of confusion. Also on that date a "Social Service Evaluation and Discharge Plan" was completed by a social worker at the hospital. It stated that the decedent's personal representative was his niece Camille; he was referred because of "functional/ cognitive limits impacting self care"; he was alert and oriented, and he was suffering from head, neck and lung cancer, aortic valve stenosis and narcolepsy.

On May 29, 2013, the hospital records state that the decedent was not taking in much fluid, and was "eating less, looks weak".

On May 31, 2013, Dr. Potenza noted that the decedent was awake but lethargic and markedly debilitated. A health care proxy dated May 31, 2013, named the decedent's cousin Francis Bailie as his health care agent.

On June 1, 2013, Dr. Potenza signed off on the form entitled "Adult Patient Without Capacity, With a Health Care Proxy". Under the section regarding the decedent's determination of incapacity, it stated that the patient lacks "the capacity to make these decisions", and the box was checked which stated that the duration of the incapacity is expected to be permanent.

Also on June 1, 2013, Howard wrote a memo to attorney Balint in which he stated, among other things,

Roy and Tim thought [the decedent] looked better. Roy spent an hour with [the decedent] and according to Roy much conversation that he must have his affairs in order with a new will and in particular Roy and me taking care of his wishes if he can't do it in his lifetime. Best thing I did was to get Roy into the mix to do my legwork in NY. He is bright and I think Nick is in love with him.

In addition, Howard wrote that "if NY law allows the in terrorem provision go for it but if it will delay getting this done not worth the delay in time". He went on to discuss the provisions of the decedent's new instrument in detail, including the tax ramifications of some of the bequests, and which provisions should remain and which should be omitted.

On June 2, 2013, Dr. Potenza noted that discharge planning for hospice services would be conducted.

On June 3, 2013, a social service evaluation and discharge plan was completed. A social worker at Montefiore Medical Center reported that she went to see the decedent, and the nurse had stated that he was alert, oriented and capable of making decisions. She also wrote that she got in touch with the decedent's primary contact, niece Camille, to inform her that the decedent was rejecting home hospice care, and Camille persuaded him to accept such care. Another hospital social worker wrote that the decedent "relie[d] strongly on his Catholic faith". A neurological exam was performed, and the notes reflect that the decedent was "awake lethargic but communicative".

On June 3, 2013, Cardinal Timothy Dolan came to visit the decedent. The Cardinal testified that when he came to see the decedent in the hospital, he was not responsive, and he did not communicate with him while he was there. It was the only time that he had ever seen the decedent, and he did not know why he went to visit the decedent. He recalled that there was someone else in the room but he had no idea as to who it was. The Cardinal told the individual to tell the decedent that he was there and that he prayed for the decedent.

The Cardinal did not recall having a conversation with the decedent, Andrew or anyone else about an intention to leave money to improve Our Lady. However, he did remember that someone notified him that the decedent had died, and he had remembered the church in his will. Mary testified that she had called Timothy on his cell phone to inquire as to how the decedent was doing, and he informed her that Cardinal Dolan was visiting with the decedent.

Nephew John testified that on the morning of June 4, 2013, he was with the decedent from 10:00 a.m. to 12 noon and returned to the decedent at about 2:00-2:30. He said during the periods he was there, the decedent was not able to have a conversation with him.

At 11:24 a.m., on June 4, 2013, Daniel S. Berman, M.D., the attending physician and infectious disease specialist, created the following notes: the decedent's condition was "unchanged" and he was "quite weak and lethargic".

Timothy testified that on the morning of June 4, 2013, John was in the hospital when he arrived, and attorney Balint called him to tell him that they would be by. It was late morning when attorney Balint arrived, the decedent was not sleeping, and attorney Balint asked him to leave the room with the decedent's care giver. Shortly thereafter, the decedent executed the instrument offered for probate.

The instrument was drafted and witnessed by attorney Balint and also witnessed by Jason Neroulias, Esq. The instrument made the following general and specific bequests:

(1)Timothy (all shares in Super and Fratres, the decedent's interest in 817 East 140 Street, Bronx, NY and $250,000.00);

(2) Catholic Foundation of New York ($1,000,000.00 to construct a wing at the St. John Vianney priests' residence);

(3) the Panebianco nephews (each $250,000.00 and the decedent's interest in real property adjacent to 809 East 140 Street);

(4) the Pane children (each $250,000.00);

(5) Josepha Vergas deDios, home heath aide ($250,000.00); and

(6) cousin Francis Bailie ($100,000.00)

As to the residue, it went 50% to the Catholic Foundation, 25% to the Society of Jesus and 25% to the Salesian Missions, Inc. The instrument also nominated Howard as executor and Roy, as the successor executor.

Further on June 4, 2013, Timothy signed for the decedent as his personal representative on a form titled "Calvary Hospital Certified Home Health Agency and Hospice Acknowledgment of Receipt of Notice of Privacy Practices". The form stated "Pt unable to sign at this time. HCP signed on pats behalf", and it was signed before a social worker. The form was acknowledged. A new DNR form was also executed by Timothy as the decedent's representative.

Later in the day on June 4, 2013, the decedent was discharged for home hospice services.

Nephew Nicholas testified that he visited the decedent at home on the day of his discharge, he was mostly sleeping, when he would awake he would ask for food and then not eat it, and he was unable to have a conversation.

On June 17, 2013, less than two weeks later, the decedent died. His assets at his death were approximately $20,000,000.00.

On July 23, 2013, Howard filed a petition for probate of the June 4, 2013 instrument.

In January or February of 2014, Howard instructed Roy to prepare a gift tax return concerning a gift the decedent made to Howard in March 2013.

Pre-objection SCPA 1404 discovery was conducted which included the depositions of attorney Balint as drafter and witness and attorney Neroulias as witness.

Attorney Balint testified as follows: He first met Andrew in his capacity as the chairman of the annual Catholic Red Mass for attorneys since he was looking for a priest who had a legal background to celebrate the mass. Andrew never expressed a desire to make a bequest or a lifetime gift for the Catholic church, and attorney Balint did not bill for the preparation of the wills.

Attorney Balint further testified that he is active in his parish and is a trustee at the St. Joseph's Medical Center, his brother is a priest; and he donates to various Catholic organizations including the Archdiocese, the Jesuits and the Salesians. He stated that he and the decedent had much in common including that they both had bypass surgery, had brothers who were priests and were interested in Don Bosco and the Salesians, and that the decedent needed to rely on others, especially Andrew and Daniel.

As to the formulation of the propounded instrument, attorney Balint testified as follows: Howard was the first to contact him regarding a new will for the decedent; Howard requested a copy of the decedent's will from him; and Howard explained the decedent's testamentary plan, the change in selection of fiduciaries and that the primary beneficiaries were to be the Jesuits and the Salesians.

Attorney Balint testified that these changes then were confirmed by the decedent who told him he was changing fiduciaries because he had become very reliant on Howard; while the instrument initially included only the $1,000,000.00 bequest to the Catholic [*6]Foundation, the decedent told him to add the entity as a residuary beneficiary; and he and Howard told the decedent that there would be minimal estate tax if the charities were left significant assets. He stated that he prepared a draft of the propounded instrument, and he left it with the decedent. As to the objectants, attorney Balint testified that the decedent did not comment about his relationship with them, and there was no conversation regarding the fact that they were being omitted as residuary beneficiaries.

As to the execution ceremony on June 4, 2013, attorney Balint testified as follows: Before the will was executed, he called an attorney whose father was on the Board of Trustees of Saint Patrick's Cathedral, to get the proper name for the charitable arm of the Catholic church. This attorney, like his father, had a strong relationship with the Catholic church. The attorney gave attorney Balint the correct name of the organization and offered the services of his employees, attorney Neroulias to witness the will and paralegal Steve Mazzei ("Steve"), to drive them down to the hospital and act as the notary. He notified Timothy that they would be coming. They arrived late morning, before noon.

Attorney Balint testified that he read the will to the decedent in full, and prior to executing the will, he did the formal questions. Specifically, he testified that he asked the decedent to identify the document he was about to sign, he responded that it was his will, he asked him "whether he wanted [attorney] Neroulias and myself to be the witnesses to the will, and then [he] asked him does the will contain everything that you want and he said yes, it does". Then the decedent signed the will, and then he and attorney Neroulias signed.

Attorney Neroulias testified as follows: at the time of the execution, he was an associate trusts and estates attorney at a firm in White Plains, NY; he had not been acquainted with the decedent prior to the will execution; and on the morning of the will execution, he received an email from one of the partners at the firm, asking him to be available to travel to the hospital where the decedent was a patient and witness the execution of his will.

Attorney Neroulias stated that his firm did work for the Archdiocese of New York but that he was not involved in that work and that, on the way down to the hospital, attorney Balint explained to him that this new will was to include charitable bequests and made some adjustments to bequests to certain of the decedent's relatives.

The decedent was sleeping when they arrived at his room; he did not look well, and it took some effort to wake him. Attorney Balint spoke to the decedent about the fact that they were present to change the will. Attorney Neroulias could not recall the specifics but indicated that he believed it appeared consistent with what attorney Balint discussed with him in the car.

Attorney Neroulias did not specifically remember the execution questions asked of the decedent or his answers but assumed by virtue of his signature on the attesting witness affidavit, that they were asked. He testified that he did not recall attorney Balint asking the decedent to discuss the nature and extent of his assets, his family, or the day, date and month they were there. He did not recall anyone asking whether the decedent was on any medication at the time. Prior to the actual execution, they had the decedent practice signing his name on a legal pad.

According to attorney Neroulias's testimony, the decedent did not read the will in front of him, and no one read it to him. Attorney Balint showed the decedent where to sign [*7]his name. After that, he and attorney Balint signed as witnesses. He did not recall if he signed the witness affidavit after he left the room. He believed that the signatures were notarized either in the car or when they returned to White Plains.

When attorney Neroulias returned to his office, he spoke to his supervisor, telling her that he was not comfortable with the circumstances of the will execution or having been asked to participate and would appreciate if that was not done again in the future. He explained that there was tension and/or urgency throughout the process in trying to avoid a relative of the decedent and "because [the execution] was done at the hospital. I've never also had to wait for somebody to leave a location before entering to see a testator before they execute a will and never had to make efforts to rush through a will execution to make sure I was gone before he came back". Attorney Balint had told him that if the family member was present when they were there, there could potentially be a confrontation.

With a verification dated March 4, 2014, the objectants lodged objections [due execution, lack of testamentary capacity, undue influence and fraud] and made a demand for a jury trial. Extensive post-objection discovery was conducted, only some of which will be addressed here.

Steve acted as the notary. He testified that he had worked as a paralegal for a White Plains law firm for 20 years, and he had witnessed approximately 20 will executions; he had met the decedent only on the day of the execution; he knew that attorney Balint had spoken to an attorney at his firm to get some information about the Archdiocese; and on the morning of June 4, that attorney told Steve that he would be driving attorneys Balint and Neroulias to the hospital and would be acting as a notary. The attorney also told Steve that the decedent was terminally ill and "wanted to leave money to the Archdiocese, so we wanted to make sure this got done today". In the car, attorney Balint stated that he was concerned that one of the "sons" was at the hospital and was going to be upset with the new will, and he wanted to avoid any controversy.

Steve testified that the decedent was awake when they arrived; he looked ill; the decedent knew the day of the week but was puzzled about the date; and there was a man in the room who left of his own accord. Shortly thereafter, Steve moved into the doorway area, basically facing out, believing that he should prevent anyone from entering to interrupt the ceremony.

Steve believed that the will was not read but maybe explained, and he stated that the decedent did not ask any questions. The decedent did not say anything. At some point, attorney Neroulias asked him to come closer, and that is when "[attorney Balint] went through the routine", asking the questions with regard to the will. He believed that the witness affidavits were signed in the lobby and in the car. Further, Steve recalled an atmosphere of "let's get this done". When he returned to the office, he told the partner who sent him that "everything was accomplished", and the attorney was pleased.

Howard testified that he first met the decedent, Andrew and Daniel in the late 1980s when they were thinking of hiring his accounting firm; he first met attorney Balint after Daniel died at the behest of Andrew who was the fiduciary of Daniel's estate; and he never discussed with Andrew or Daniel, their wills or estate planning but did counsel the decedent as to his estate planning after Andrew died.

Howard also testified that the decedent was unhappy with his will in that he had not [*8]had a relationship with the nominated executor for several years; he wanted to limit what went to his niece and nephews and include the Salesians, the Jesuits and the Archdiocese; he chose those charities because of childhood involvement and because Andrew resided in Our Lady and had made a verbal commitment to Cardinal Dolan for $500,000.00 for the facility; and the decedent wanted to make lifetime gifts to Catholic charities and draw a will in case the lifetime gifts did not occur.

Howard had a relationship with Mary because she would tell him when it was best to speak with Andrew. About a week or two after Andrew died, Mary told him about the pledge. The decedent also told Howard about this pledge. At the request of the decedent, Howard spoke with Cardinal Dolan to thank him for visiting the decedent.

Howard further testified that he first contacted attorney Balint in October 2012 for a copy of the will; he had many conversations with attorney Balint about the decedent's estate plan; he suggested to the decedent that Roy act as a co-executor; and he discussed commissions with the decedent and how much they would be. Howard stated that the decedent made a preliminary plan in December 2012 to make the lifetime gifts; this was discussed more at a meeting in March 2013 at the decedent's home; and the decedent preferred lifetime gifts to testamentary bequests because it gave him pleasure to give gifts.

Howard advised the decedent that he "could do a lot more with his monies if there were charities". The decedent told Howard that he did not want to give his niece and nephews anything, and they settled on $250,000.00 because that was the amount others were getting under the will. He did not charge the decedent for his estate planning services, and he did not agree with attorney Balint's feeling that the decedent was reliant on Howard.

Timothy testified that the decedent was less sophisticated than his brothers and he had relied on them; a lot of the decisions were made by Andrew; and he was not aware that the decedent gave Howard, $100,000.00, and he was surprised to learn that he had since he was much closer to the decedent than was Howard. Timothy visited the decedent in the hospital every day; he had coherent conversations with him; and the decedent deteriorated during the hospital stay and slept a lot.

Mary testified that she has been an employee of the Archdiocese of New York for 15 years, and she is the resident director at Our Lady. She spoke often with Andrew and considered him a friend; they never discussed how much money his family had, and she still did not know; Andrew never discussed his wishes with respect to the disposition of his assets; six months to a year before he died or earlier, he talked to her about a chapel and changes that could be made to it, but he did not say that he intended to provide the money for the renovations; he never told her he wanted to benefit the Jesuits or the Salesians; and during one conversation, Andrew told her that the decedent did not get along with nephews John and Nicholas.

Mary further testified that she had conversations with Cardinal Dolan about Andrew and that he visited Andrew before he died, which he does do for most priests. With regard to the decedent, she testified that neither the decedent nor anyone else ever told her that the decedent wanted to gift money to the Catholic church but he did tell her that he wanted to do the right thing by the church because Andrew was well taken care of at Our Lady.

Roy testified that Howard brought him in to deal with the decedent regarding the estates of Daniel and Andrew so that Howard would not have to come up from Florida; he [*9]met with the decedent six or seven times; and during one of those meetings, the decedent told him that he wanted to make a substantial contribution to the church for Andrew, that he was rewriting his will, and that he would be named the successor executor.

Nephew John testified that during the three year period prior to the decedent's death, he visited the decedent once or twice per month and during his last illness, he visited the decedent every day in the hospital and at home in hospice until he died. He also testified that Andrew told him that once Mary found out about Andrew's assets, she put almost daily pressure on him to make a large donation to Our Lady.

As noted above, Howard now moves for summary judgment, dismissing the four objections to probate.

The "law places squarely upon the Surrogate in mandatory language the duty to inquire particularly into all the facts and circumstances before admitting a will to probate" (Matter of Weeks, 39 Misc 2d 696 [1963]) and requires the court to be "satisfied with the genuineness of the will and validity of its execution" (SCPA 1408; see also Matter of Campbell, NYLJ, June 11, 1998, at 32, col 3). In so doing, the court is "performing a judicial function which [it] cannot delegate" (Matter of Weeks). In determining whether a will has been duly executed, the court is not "confined to the spoken word of the witnesses" but may "look to the surrounding circumstances and to the substance of the transaction and from it all say whether or not the will has been duly executed" (Matter of Cardwell, 176 Misc 1059 [1941]).

Summary judgment is a drastic remedy which should not be granted where there is any doubt as to the existence of a triable issue of fact (see Matter of Clark, NYLJ, Aug.23, 2013, at p38, col 5 [Sur Ct NY Co]). The proponent of the motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]). Once such a showing has been made, the burden shifts to the party opposing the motion to produce admissible evidence sufficient to establish the existence of material issues of fact which require a trial (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

While a court must construe the facts in the light most favorable to the non-moving party (see Martin v Briggs, 235 AD2d 192 [1st Dept 1997]), and the opposing party is afforded every favorable inference (see Matter of Clark, NYLJ, Aug.23, 2013, at p38, col 5), that party must lay bare his proof as unsubstantiated allegations are insufficient to defeat the motion (see Zuckerman v City of New York). Allegations must be specific and detailed and substantiated by evidence in the record (see Matter of Foranoce, NYLJ, Aug. 7, 2000, at p. 25, col. 6).

Where there are issues of credibility presented in the record before the court, the motion must be denied, and those determinations of credibility must be made by the trier of fact (see Phillips v Joseph Kantor & Co., 31 NY2d 307 [1972]; Matter of Jacobs, NYLJ, April 18, 2000, at p27, col4 [Sur Ct Westchester County]).

Finally, the court's role on a motion for summary judgment is to find a material issue of fact for trial (see Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395 [1951]).

Turning to the substantive aspects of this motion, the first objection raises the issue of due execution. As to this issue, Howard bears the burden of proving by a [*10]preponderance of the evidence that the instrument was executed in compliance with EPTL 3-2.1 (see Matter of Falk, 47 AD3d 21 [1st Dept 2007], lv to appeal denied, 10 NY3d 702 [2008]).

The elements of due execution are that the will must be in writing; the testator's signature must be at the end of the will; the signature must be affixed in the presence of each of the attesting witnesses or acknowledged by the testator to each of the witnesses that it is his signature; the testator must declare to each of the witnesses that it is her will; and the witnesses must sign within a 30 day period and at the testator's request (see EPTL 3-2.1; see also Matter of Falk).

Where the attorney/draftsman supervises the execution, there is a presumption that the execution was made in accordance with the statutory requirements (see Matter of Philbrook, 185 AD2d 550 [3d Dept 1992]). The attestation clause creates a presumption of validity, and the testimony of the attesting witnesses is entitled to great weight (see Matter of Collins, 60 NY2d 466 [1983]; see also Matter of Malan, 56 AD3d 479 [2d Dept 2008], lv to appeal denied, 12 NY3d 702 [2009]).

These presumptions are rebuttable by evidence that the formal requirements of execution were not met (see Matter of Pilon, 9 AD3d 771 [3d Dept 2004]). This proof can be direct or circumstantial (see Matter of Jacinto, NYLJ, Feb. 2, 1990, at p29 [Sur Ct Nassau Co]. Whether the presumption has been successfully rebutted is for the trier of fact to determine (see Matter of Clark, NYLJ, Aug. 23, 2013, at p38 [Sur Ct NY Co]).

In support of due execution, Howard states that since attorney Balint was an attorney-draftsman who supervised the execution, the ceremony is afforded the presumption of regularity and that the signatures of attorneys Balint and Neroulias on the attesting witness affidavits are further evidence that the instrument was properly executed..In opposition to summary judgment on this issue, the objectants state the evidence on execution is conflicting, and the presumption of regularity should not be applied because there is a credibility issue as to the testimony of attorney Balint inasmuch as he has an interest in protecting his reputation and in promoting Catholic charities. In support of this argument, they proffer attorney Balint's deposition transcript, an affidavit he submitted on this motion which differs from his deposition testimony and the deposition testimony of attorney Neroulias and Steve.

The record demonstrates that there are issues of fact as to whether the execution of this instrument met the requirements of EPTL 3-2.1 (see Matter of Eaton, NYLJ, Jan. 29, 1991, at 27, col. 5). Even crediting the testimony of the witnesses in a light most favorable to Howard, there is conflicting evidence as to whether the draft instrument left at the decedent's home was identical to the one executed in his hospital room and whether the decedent ever read the will or whether it was read to him, and therefore, whether the instrument was reflective of his true intent. Additionally, while the failure by the decedent to publish a will alone is insufficient to deny probate (see Matter of Eckert, 93 Misc 2d 677 [Sur Ct NY Co 1978]), there is conflicting evidence in the record as to whether the decedent here did so and whether he asked attorneys Balint and Neroulias to act as witnesses and sign at his request.

Furthermore, the testimony of attorneys Balint and Neroulias and Steve raise issues of credibility which must be determined by the trier of fact. For example, attorney Neroulias [*11]testified that there was a sense of urgency and tension surrounding the will execution, so much so that when he returned to his office, he spoke to the head of his department and asked her to not place him in such a position again. Steve testified as to a similar atmosphere. In contrast, attorney Balint's testimony was silent on any issue of urgency.

Based on the conflicting record set forth above and the court's responsibility to "look to the surrounding circumstances and to the substance of the transaction and from it all say whether or not the will has been duly executed" (Matter of Cardwell), summary judgment on the issue of due execution is denied (see Matter of Hansen, NYLJ, April 7, 1999, at p30, col5 [Sur Ct Nassau Co]).

The second objection is that the decedent lacked testamentary capacity. Howard has the burden of proof by a preponderance of the evidence that, at the time of execution, the decedent possessed the requisite capacity to make a will by showing that he was of sound mind and memory (EPTL 3-1.1; see also Matter of Slade, 106 AD2d 914 [4th Dept 1984]).

Testamentary capacity may be established with evidence that the testator understood the nature and extent of his property, his relation to the persons who would be the natural objects of his bounty, and the scope and meaning of the provisions of the instrument (see Matter of Kumstar, 66 NY2d 691 [1985], rearg denied, 67 NY2d 647 [1986]). When there is conflicting evidence or the possibility of drawing inferences from undisputed evidence, the issue of capacity is one for the jury (see Matter of Kumstar; Hagan v Stone 174 NY 317 [1903]).

Howard argues that the decedent's capacity at the time of the execution of the instrument is presumed by virtue of the affidavits of the attesting witnesses and the testimony of attorneys Balint and Neroulias and Steve. Howard also puts forth, among other things, the medical record on May 26, 2013 which states that the decedent was alert, oriented and able to make decisions; the notes of a social worker on May 31, 2013, which state that the decedent wanted to discuss his options with his doctors; the testimony of a social worker which was that on May 30 and 31, the decedent appeared coherent and lucid; and an affirmation of Dr. Potenza, which states that the decedent was not suffering from any mental or psychological impairment at the time the instrument was executed.

In opposition, the objectants point to the testimony of attorney Balint in which he states that he took no precautions to assure that the decedent was medically sound on the day the will was executed by speaking to medical personnel about his mental state and medications; the medical records which detail the decedent's physical, mental and emotional issues; and the fact that the decedent could not sign his discharge papers just after he executed the instrument.

The objectants also submitted the affidavits of (1) Marion in which she states that, after the death of Andrew, the decedent was depressed and unable to perform simple ministerial tasks like going through Andrew's mail and (2) Steve Kane, a commercial real estate agent who knew the decedent and his brothers for more than 40 years, who stated that during the last year of his life, the decedent was not mentally capable of making decisions and "[b]ased on [his] observations, [the decedent] simply did not have the energy, concentration and understanding required to discuss these important business matters".

The court finds that there are issues of fact as to the decedent's testamentary [*12]capacity which preclude summary dismissal of this objection. The medical records indicate that the decedent was suffering from a host of serious medical conditions, including terminal cancer, depression and dementia, he was weak and lethargic just before the will was executed, he was not always oriented, and he was incapable of signing documents on his own behalf. The affidavit submitted by Dr. Potenza raises additional issues of fact in that it conflicts in part with the medical record.

Additionally, the record reflects issues of fact regarding whether attorney Balint asked the decedent about the objects of his bounty and the nature and extent of his assets. Nor is the court satisfied that the decedent understood the scope and the meaning of the provisions of the instrument. The record shows that Howard supplied the terms of the instrument to attorney Balint including a possible in terrorem clause. There is no support in the earlier instruments or in any other part of the record which would indicate that the decedent understood what an in terrorem clause was and that he would have wanted one placed in his final instrument.

Moreover, the historical estate plan of the three brothers benefitted family members and did not reflect a charitable intention on any of their parts, including Andrew, who was a Catholic priest.[FN1] There was no documentation in the record to support Howard's suggestion that the decedent wanted to benefit Our Lady because Andrew had wanted to do so, and there was no documentation in the record regarding a pledge made by Andrew.

Finally, against the long-standing testamentary plan evidenced by the documentary record, Howard's allegation of discord between the decedent and the objectants raises an issue of fact and an issue of credibility, both of which must be determined by the trier of fact. Based on the above, the motion to dismiss the testamentary capacity objection is denied.

The third objection is undue influence. It has been defined as behavior which is "insidious, subtle and impalpable ...[and] subverts the intent or will of the testator, internalizes within the mind of the testator the desire to do that which is not his intent but the intent of another" (Matter of Kaufman, 20 AD2d 464 [1st Dept 1964], affd, 15 NY2d 285 [1965]; see also Matter of Walther, 6 NY2d 49 [1959]). It is "seldom practiced openly, but it is rather the product of persistent and subtle suggestion imposed upon a weaker mind and calculated, by the exploitation of a relationship of trust and confidence, to overwhelm the victim's will to the point where it becomes the willing tool to be manipulated for the benefit of another" (Matter of Burke, 82 AD2d 260 [2d Dept 1981]).

To demonstrate undue influence, an objectant must show by a fair preponderance of the evidence that a motive, an opportunity, and the actual exercise of influence subverted the mind of the testator at the time of the execution to the extent that, but for the influence, the decedent would not have executed the instrument (see Matter of Fiumara, 47 NY2d 845 [1979]).

"Evidence of motive is generally present by virtue of the benefit conferred on the [*13]beneficiary of the bequest" (see Matter of Moskowitz, NYLJ, March 26, 2012, at 44 [Sur Ct Kings Co]). Executor's commissions may be such a benefit (see Matter of Rosen, NYLJ, June 30, 2000, at 31 (Sur Ct Kings Co), affd, 296 AD2d 504 [2d Dept]) and so may a lifetime gift be construed as such a benefit (see Matter of Rosen). Motive may also be found where an attorney drafts a will where a charity in which he was actively engaged received a substantial bequest (see Matter of Edel, 182 Misc 2d 878 [Sur Ct Cattaraugus Co 1999]).

Evidence of opportunity and the actual exercise of influence may be demonstrated by the "facts and circumstances surrounding the testator, the nature of the will, his family relations, the condition of his health and mind and the opportunity to exert such influence" (see Matter of Elmore, 42 AD2d 240 [3d Dept 1973], quoting Matter of Anna, 248 NY 421 [1928]).

The objectants argue that a confidential relationship existed between attorney Balint and the decedent and Howard and the decedent. When a confidential relationship exists between the testator and the beneficiary, an inference of undue influence may arise (see Matter of Katz, 15 Misc 3d 1104[A] [2007]). Certain relationships, such as attorney and client, are considered confidential as a matter of law (see Matter of Zirinsky, 10 Misc 3d 1052[A] Sur Ct Nassau Co 2005], affd, 43 AD3d 946 [2d Dept], lv to appeal denied, 9 NY3d 815 [2007]). Other relationships may be determined to be confidential as a matter of fact (see Matter of Moskowitz). The existence of a confidential relationship as a matter of fact may be shown by proof of a combination of facts such as the testator's mental, physical or emotional dependence on the beneficiary or the beneficiary's involvement in or control over the testator's financial affairs (see Matter of Halsband, NYLJ, Feb. 15, 1994, at p25 [Sur Ct NY Co]; see also Matter of Burke, 82 AD2d 260 [2d Dept 1981]).

Although a confidential relationship between a testator and a beneficiary, combined with other factors, may create an inference of undue influence that the proponent must explain, the relationship does not create a presumption of undue influence as a matter of law (see 2 Harris, New York Estates, § 20:229). The burden never shifts from the objectant to prove undue influence (see Matter of Collins, 124 AD2d 48 [4th Dept 1987]). However, the existence of a confidential relationship calls for an explanation in regard to the largesse and whether the explanation is sufficient is a question for the trier of fact (see Matter of Lynch, NYLJ, June 20, 2006, at 25 [Sur Ct Kings Co]).

The objectants state that the instrument was a "deathbed will" and a clear departure from the decedent's prior estate plan, and attorney Balint used his position to unduly influence the decedent to benefit charities to which he had a connection, by invoking religion and Andrew's memory. As to Howard, they assert that he also used his position as someone upon whom the decedent relied, to benefit himself with a $100,000.00 lifetime gift, by becoming the proposed fiduciary, which would yield a benefit of substantial commissions, and by securing the successor fiduciary position for Roy, a relative stranger to the decedent.

In support of his motion to dismiss this objection, Howard argues, among other things, that there is no evidence that the decedent was restrained from exercising independent action with the execution of the instrument; the decedent initiated the will change; and the objectants were not excluded from the will.

There is an issue of fact as to whether Howard's relationship with the decedent was a confidential one, and there is conflicting evidence as to whether Howard and/or attorney Balint used their relationship with the decedent to influence his wishes or the will drafting process at a time when the decedent was quite ill which resulted in a marked change in his estate plan. Based on the above, summary judgment is denied on this objection.

The objectants bear the burden of proof on the issue of fraud (see Matter of Bianco, 195 AD2d 457 [2d Dept 1993]). Actual fraud is the objection typically asserted in a probate contest. As to actual fraud, an objectant must demonstrate, by clear and convincing evidence, that a false statement was made which caused the testator to execute a will disposing of his property in a manner different than he would have if the statement had not been made to him (see Matter of Beneway, 272 App Div 463 [1st Dept 1947]). The objectants have not stated a case for actual fraud. To the extent that the objectants raise actual fraud, summary judgment is granted on that objection.

However, objectants assert that what took place here also amounted to constructive fraud. Constructive fraud is defined as a "breach of duty, which irrespective of moral guilt and intent, the law declares fraudulent because of its tendency to deceive, to violate a confidence or injure public or private interests which the law deems worthy of special protection" (see Brown v Lockwood, 76 AD2d 721 [2d Dept 1980]; Matter of Klenk, 151 Misc 2d 863 [Sur Ct Suffolk Co 1991]). "Unlike actual fraud, which requires knowledge on the part of the perpetrator of his false representation, constructive fraud emanates form the existence of a fiduciary or confidential relationship whereby the trusting party reposes a confidence in the guilty party and therefore the trusting party does not exercise the care and vigilance that ordinarily would be exercised in a given situation" (Matter of Klenk).

Constructive fraud has been applied in probate proceedings where the party has pleaded the necessity of the imposition of a constructive trust (see Matter of Artope, 144 Misc 2d 1090 [Sur Ct Nassau Co 1989]; see also Matter of Reede [jury was correct in finding constructive fraud where an in terrorem clause which was improperly explained to the testator worked a forfeiture for the decedent's son and his children]).

Constructive trust was not pleaded by the objectants, and the court dismisses this objection.

Howard is directed to serve and file an order framing issues based on this decision and order with notice of settlement by February 1, 2016. Upon receipt of the order framing issues, the objectants may serve and file a counter-order framing issues by February 15, 2016. Thereafter, the matter will be set down for a trial before the Acting Surrogate.

THIS IS THE DECISION AND ORDER OF THE COURT

The papers relied on are as follows:

1. Notice of motion dated April 30, 2015;

2. Affirmation of Robert M. Potenza, M.D., dated April 27, 2015;

3. Affirmation of Andrew J. Balint, dated April 29, 2015;

4. Affirmation of Eliot M. Schuman, Esq. dated April 30, 2015, with exhibits annexed;

5. Affirmation of John G. Farinacci, Esq. dated May 27, 2015, with exhibits annexed;

6. Affirmation of Eliot M. Schuman, Esq. dated May 4, 2015;

7. Affidavit of Robert Pane, M.D. sworn to on May 17, 2015;

8. Affidavit of Marion Linden sworn to on May 18, 2015;

9. Affidavit of Steve Kane, sworn to on May 18, 2015;

10. Affidavit of John Panebianco, sworn to on May 26, 2015;

11. Affirmation of Camille Pane dated May 27, 2015;

12. Affirmation of Eliot M. Schuman, Esq. dated August 19, 2015;

13. Affirmation of John G. Farinacci, Esq. dated September 1, 2015.

14. Affirmation of Eliot M. Schuman, Esq. dated June 15, 2015, with exhibits annexed.

Dated: White Plains, NY

December, 2015

______________________________

HON. Thomas E. Walsh

Acting Surrogate Westchester County Footnotes

Footnote 1:As noted above, Andrew's will differed from the decedent's penultimate instrument in that if the decedent predeceased Andrew, he made a bequest of an apartment to the Ursuline sisters.