Matter of Geraghty

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[*1] Matter of Geraghty 2017 NY Slip Op 51673(U) Decided on November 27, 2017 Surrogate's Court, Rockland County Thorsen, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 27, 2017
Surrogate's Court, Rockland County

Matter of Elizabeth C. Geraghty, Deceased.



2016-256/C



Peter J. Piergiovanni, Esq. for Petitioner

James Birnbaum, Esq. for Objectants
Rolf M. Thorsen, J.

In this contested probate proceeding, Petitioner, Milton P. Polhemus, seeks to probate the purported Last Will and Testament of Elizabeth C. Geraghty, dated March 20, 2016 (hereinafter "the 2016 Will"). Objectants, Kathleen Yakich a/k/a Mary Yakich and Edward Yakich, oppose probate of the 2016 Will on the grounds that: (1) the 2016 Will was not duly executed, (2) that the decedent lacked the testamentary capacity to execute the 2016 Will, and (3) that the decedent was fraudulently induced into executing the 2016 Will.[FN1] Petitioner now moves for summary judgment. The Court has considered the following papers:

1. Notice of Motion for Summary Judgment, Affirmation in Support and Exhibits A through G attached thereto, and Memorandum of Law;2. Affirmation in Opposition and Exhibits A through H attached thereto, and Memorandum of Law; and3. Reply to Opposition.

The decedent died on May 2, 2016. Prior to her death, on March 17, 2016, while the decedent was a patient in Nyack Hospital, decedent met with Charles Davis, Esq. for the purpose of drafting a Last Will and Testament, a health proxy and a power of attorney. The meeting was arranged by Petitioner, Mr. Polhemus.[FN2] Mr. Davis questioned the decedent in order to fully understand her wishes. According to Mr. Davis, the decedent, although frail, was "clear headed" and "knew what she was talking about." In fact, Mr. Davis testified that he had "no question that she knew what she was doing and she knew what she wanted." See, Petitioner's Exhibit E at 14, [*2]15. Thus, Mr. Davis drafted a will naming Petitioner and his wife as the sole beneficiaries of the decedent's estate.[FN3] A few days later, on March 20, 2016, Mr. Davis returned to the decedent's room in Nyack Hospital with the prepared documents, including the Last Will and Testament. Also present was the Petitioner and his wife, as well as Tara Grisby and Catherine Flanagan.[FN4] During his deposition, Mr. Davis testified that he read each paragraph of the 2016 Will to the decedent, which was subsequently signed by the decedent under the supervision of Mr. Davis and then signed by Ms. Grisby and Ms. Flanagan. The two witnesses also signed an attesting witness affirmation, which was attached to, and made apart of, the 2016 Will. See, Petitioner's Exhibit A. Petitioner argues that, based on the foregoing, the 2016 Will should be admitted to probate.

In opposition to Petitioner's motion for summary judgment, the Objectants, narrowing their claims to two, argue that there is sufficient evidence of undue influence and undue execution to warrant the denial of Petitioner's motion for summary judgment. Specifically, Objectants allege that the 2016 Will "disrupted [decedent's] thirty (30) year testamentary plan to provide her estate upon her passing to the natural objects of her bounty - her surviving sister and nephew" as evidenced by decedent's Last Will and Testament dated August 27, 1986, wherein the Objectants were the named beneficiaries of the decedent's estate. Thus, Objectants challenge the validity of the 2016 Will.

Having reviewed the foregoing papers, the Court is satisfied with the validity of the 2016 Will's execution. See, SPCA §1408; EPTL §§3-1.1 and 3-2.1. See, In re Estate of Brower, 4 AD3d 586 (3d Dept. 2004). The deposition testimony of the attorney-drafter as well as the deposition testimony of the two witnesses, demonstrate that the statutory requirements for due execution were met. See, Matter of Templeton, 116 AD3d 781 (2d Dept. 2014). Here, the will was drafted by an attorney, executed under the supervision of an attorney, witnessed by two individuals and contains the necessary attestation clauses. See, Matter of Moskoff, 41 AD3d 481 (2d Dept. 2007)(There is a presumption of regularity that the will was properly executed when an attorney draftsman supervised the will's execution). Moreover, "[t]he attestation clause and self-proving affidavits accompanying the propounded will also [give] rise to a presumption of compliance with the statutory requirements." Matter of Selvaggio, 146 AD3d 891 (2d Dept. 2017).

With respect to the Objectants' claim of undue influence, the Court finds that the Petitioner has met his burden of proving that the 2016 Will was not the product of undue influence. "An objectant contesting the admission of a propounded instrument to probate based on the alleged exercise of undue influence must show that 'the influence exercised amounted to a moral coercion, which restrained independent action and destroyed free agency, or which, by [*3]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 Mele, 113 AD3d 858, 860 (2d Dept. 2014)(Internal citations omitted). In opposition, the Objectants have failed to submit any evidence that the Petitioner actually exercised undue influence over the decedent.[FN5] On the contrary, Mr. Davis, the drafter of the 2016 Will who met with the decedent on two occasions, the first to discuss the contents of the will and the second to execute the will, testified during his deposition that the decedent was of sound mind, sound understanding and "that she was clear on what she wanted, she was clear on what she was doing. She understood it and went forward." See, Petitioner's Exhibit E at 36. In fact, during their first meeting, Mr. Davis "queried her on what her intentions were." He testified as follows:

I made sure that I asked her about why she wanted to leave to Mr. Polhemus and his wife rather than to her sister and her sister's kids or child, which I don't remember.The focus of it was, and this was an explanation that I sought out and asked, was because they were providing care and she hadn't much contact with her family. That was the response that came back to me.She clearly told me what she wanted in terms of the will, the healthcare proxy, the power of attorney.

See, Petitioner's Exhibit D at 13. Objectants have failed to raise a triable issue of fact. See, e.g., Matter of Eastman, 63 AD3d 738 (2d Dept. 2009).

Based on the foregoing, it is hereby

ORDERED that Petitioner's motion for summary judgment is granted thereby dismissing the objections filed by the Objectants; and it is further

ORDERED that the Last Will and Testament of Elizabeth C. Geraghty dated March 20, 2016 is hereby admitted to probate. Consistent herewith, Letters Testamentary shall thereupon issue to Petitioner, Milton P. Polhemus, upon his qualification as such according to law.

A Decree shall issue in accordance herewith.

The foregoing constitutions the Decision and Order of this Court.



Dated: November 27, 2017

New City, New York

Hon. Rolf M. Thorsen

Acting Surrogate Footnotes

Footnote 1:Kathleen Yakich a/k/a Mary Yakich and Edward Yakich are the sister and nephew of the decedent, respectively.

Footnote 2:It is unclear whether Mr. Polhemus arranged the meeting with Mr. Davis at the request of the decedent or on his own volition.

Footnote 3:Article 4 of the 2016 Will states that decedent gives, devises and bequeaths her residuary estate to "my dear friends," Milton P. Polhemus and Margaret M. Polhemus. The Polhemuses were long-time neighbors of the decedent.

Footnote 4:Tara Grisby and Catherine Flanagan were present at the request of Mr. Polhemus to act as witnesses to the execution of the 2016 Will. Ms. Flanagan and Ms. Grisby are the sister and niece of Petitioner's wife, respectively. Despite their relation to the Polhemuses, Mr. Davis proceeded with the execution of the 2016 Will.

Footnote 5:Objectants assert that certain evidence — the transfer to the Polhemuses of the deed to decedent's house by Mr. Polhemus and the $17,000 check that Mr. Polhemus drew from decedent's account to Mrs. Polhemus, both occurring prior to decedent's death and pursuant to a power of attorney - support their undue influence claim. The Court disagrees as these actions occurred after the 2016 Will was duly executed and do not demonstrate that Petitioner "actually exerted undue influence over the decedent" at the time the Will was drafted or executed.