Matter of Po Jun Chin

[*1] Matter of Po Jun Chin 2018 NY Slip Op 50062(U) Decided on January 2, 2018 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 January 2, 2018
Sur Ct, Queens County

In the Matter of Po Jun Chin, Deceased.



2016-1191



Barry K. Honigman, Esq.

Attorney for Petitioners Theodore Chin and Philip Chin

225 Old Country Road

Melville, NY 11747

Moritt, Hock & Hamroff LLP

By: Damianos Markou, Esq.

Attorneys for Objectant Patricia Chin-Lee

400 Garden City Plaza

Garden City, NY 11530
Peter J. Kelly, S.

In this probate proceeding, petitioners Theodore and Philip Chin move for summary judgment granting probate to an instrument dated April 10, 2003 and dismissing the objections filed by their sister, Patricia. Objectant cross-moves for summary judgment denying probate to the instrument on the grounds that it was not duly executed, decedent lacked testamentary capacity and that it was the product of undue influence, fraud and duress.

Decedent died on January 23, 2016 survived by her three children: Patricia, Theodore and Philip. The instrument offered for probate bequeaths decedent's ownership interest in a corporation known as Hong Kong Sea Food King Inc. to her three children equally. However, the majority of her personal property, including shares worth several million dollars in a corporation known as Po Jun Realty Inc., passes though her residuary estate to petitioners Theodore and Philip. The three-page typewritten instrument was drafted by an attorney, Kaplan, who allegedly also supervised its execution.

Decedent had a prior attorney/client relationship with Kaplan, who had performed various legal services for her over the years including the preparation of a power of attorney dated January 10, 1997 naming Theodore as her agent, the preparation of leases for her tenants, the creation of an irrevocable trust dated December 1, 1999 ("Po Jun Chin Irrevocable Trust") and the drafting of a deed dated May 16, 2000 transferring decedent's two-family home located at 45-24 43rd Street, Long Island City to petitioners with her reservation of a life estate.

The instrument offered for probate bears decedent's signature at the end and an attestation clause with the signatures of Simon and Chiaramonte as two attesting witnesses. Also attached is a self-proving affidavit signed by the two witnesses and acknowledged by attorney Kaplan.

The movant seeking summary judgment in a contested probate proceeding must establish prima facie entitlement to judgment as a matter of law in the first instance (see e.g. Matter of Mele, 113 AD3d 858, 859-860 [2d Dept 2014]); Matter of Engelhardt, 88 AD3d 997, 998 [2d Dept 2011]; Matter of Mooney, 74 AD3d 1073, 1074 [2d Dept 2010]). In particular, the movant must demonstrate that the instrument offered for probate was duly executed in accordance with the requisites of EPTL 3-2.1 (see Matter of Moskowitz, 116 AD3d 958, 959 [2d Dept 2014]; Matter of Mele, 113 AD3d at 859; see e.g. Matter of Collins, 60 NY2d 466 [1983]; Matter of Rosen, 291 AD2d 562 [2d Dept 2002]) and that the decedent possessed testamentary capacity at that time (see Matter of Kumstar, 66 NY2d 691 [1985]; Matter of Mooney, 74 AD3d at 1075; see also Matter of DiChiaro, 39 AD3d 751 [2d Dept 2007]).

Once the requisite proof has been proffered by the movant, the non-moving party must produce evidentiary proof in admissible form to rebut the prima facie showing so as to establish the existence of a triable issue of fact (see Vega v Restani Const. Corp., 18 NY3d 499 [2012]; Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Gesuale v Campanelli & Assoc. P.C., 126 AD3d 936, 937 [2d Dept 2015]. General conclusory and unsupported allegations are insufficient to defeat a motion for summary judgment (see William Iselin & Co. v Landau, 71 NY2d 420, 425-426 [1988]; Alvarez v Prospect Hosp., 68 NY2d at 324-325; Hernandez v Nwaishienyi, 148 AD3d 684 [2d Dept 2017]; see e.g. Matter of Newman, 14 AD3d 567, 568 [2d Dept 2005]). Summary judgment may be granted only where it is clear that no triable issue of material fact exists (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; see also Phillips v Joseph Kantor & Co., 31 NY2d 307 [1972]).

With respect to testamentary capacity petitioner has the burden of proving, by a preponderance of the evidence, that at the time of execution decedent understood in a general way the following: (i) the nature and extent of her property, (ii) the natural objects of her bounty, and (iii) the provisions of the instrument (Matter of Kumstar, 66 NY2d 691, 692 [1985]). The capacity to execute a will is minimal, and lower than that required to execute most other legal documents or contracts (see Matter of Coddington, 281 AD 143, 146, affd 307 NY 181 [1952]; Matter of Safer's Will, 19 AD2d 725, 726 [2d Dept 1963]; see e.g. Matter of Rottkamp, 95 AD3d 1338, 1339 [2d Dept 2012]; Matter of Bellasalmo, 54 Misc 3d 1216[A] [Sur Ct, Queens County 2017]).

In support of their motion for summary judgment petitioners submit, inter alia, a copy of the instrument offered for probate together with the "self-proving" affidavit of the attesting witnesses; the transcript of the SCPA 1404 examination of the one surviving attesting witness, Simon; the transcript of the SCPA 1404 examination of attorney Kaplan; the petitioners' affidavits and their deposition transcripts; various documents bearing decedent's signature or handwriting, and a memorandum of law. A complete copy of the pleadings are collectively annexed to the moving and cross-moving papers.

Attesting witness Simon testified that, based upon her observations and interactions, decedent possessed testamentary capacity at the time the instrument was executed. Simon also gave uncontradicted testimony that the other attesting witness, Chiaramonte, died a couple of years ago and that she knew her personally and attended her funeral. The testimony of the second witness, now deceased, is therefore dispensed with (SCPA 1405 [1]). Where the testimony of one attesting witness has been dispensed with, the will may be admitted to probate "upon the [*2]testimony of the attesting witness who has been examined without further or additional proof" (SCPA 1405 [1]).

Based upon the testimony and documents submitted, petitioners have made a prima facie showing of entitlement to summary judgment as a matter of law dismissing the objection based on decedent's lack of capacity (see Matter of Kumstar, 66 NY2d 691,692 [1985]; Matter of Curtis, 130 AD3d 722 [2d Dept 2015]; Matter of Feinberg, 37 Misc 3d 1206[A] [Sur Ct, Queens County 2012]).

In opposition, objectant submits a photocopy of a letter from Jonathan M. Raskin, M.D. dated June 20, 2013, approximately ten years after the will was executed, stating that Po Jun Chin was first diagnosed with dementia on October 19, 2000. Dr. Raskin does not affirm that he made this diagnosis and he fails to refer to any other medical reports relied upon to make this finding. Objectant also submits a copy of an unsworn medical report from an otolaryngologist dated January 7, 2005 who referred decedent for a hearing test which is irrelevant to the issue of decedent's capacity on the date of the execution of the will, to wit, April 10, 2003. These unsworn letters do not constitute evidentiary proof in admissible form sufficient to defeat petitioners' motion form summary judgment (see Grasso v Angerami, 79 NY2d 813 [1991]; Matter of Delgatto, 82 AD3d 1230, 1231 [2d Dept 2011]; Simms v North Shore Univ. Hosp., 192 AD2d 700 [2d Dept 1993]; Matter of Testa, 43 Misc 3d 1217[A] [Sur Ct, Nassau County 2014]; see also Lozusko v Miller, 72 AD3d 908 [2d Dept 2010]).

Objectant also submits a copy of an unsworn medical report from neurologist Sun-Hoo Foo, M.D. dated July 15, 2004 together with selected pages from his deposition testimony. Dr. Foo testified that he examined decedent both in 2004 and again in 2014, and that decedent had been diagnosed with dementia in 2004 and was prescribed Aricept then. He did not testify that he was the physician who diagnosed or treated the dementia but, rather, it is clear from the record that he was a neurological consult.

It is well settled that sufficient capacity to execute a will can exist although there is an ongoing diagnosis of mental illness, depression or progressive dementia (see e.g. Matter of Fiumara, 47 NY2d 845, 847 [1979]; Matter of Friedman, 26 AD3d 723, 725 [3d Dept 2006]; Matter of Esberg, 215 AD2d 655, 656 [2d Dept 1995]; see also e.g. Children's Aid Soc. of NY v Loveridge, 70 NY 387 [1877]). Although Dr. Foo's report found cerebral atrophy from a CT scan and some short-term memory deficiency, he also found that decedent was alert, awake and oriented to time, place and function, socially taking care of her affairs, and possessed of a normal attention span and concentration. There is nothing to suggest that she was not lucid, rational or competent at the time the instrument was executed. Indeed, the testimony by Dr. Foo provides no information as to decedent's testamentary capacity on the date the will was executed but, rather, it is speculative as to that issue (see Matter of Alibrandi, 104 AD3d 1175, 1177 [4th Dept. 2013]; Estate of Raymond Harper, NYLJ, November 12, 2014 at 22, col 4 [Sur Ct, Bronx County]; see also Matter of Prevratil, 121 AD3d 137, 141 [3d Dept. 2014]).

The Court finds that objectant has failed to submit sufficient proof to raise a triable issue of fact concerning decedent's lack of capacity at the time the will was executed. Accordingly, the branch of the motion for summary judgment dismissing the objection based upon the lack of testamentary capacity is granted.

The court also finds that objectant fails to demonstrate prima facie entitlement to [*3]summary judgment denying admission of the will to probate on the ground of decedent's lack of capacity and, therefore, this branch of the cross-motion is denied.

To establish due execution, the petitioner must show that: i) the decedent subscribed or signed at the end of the instrument, ii) the decedent signed in the presence of at least two attesting witnesses or acknowledged her signature to these witnesses, iii) the decedent declared to each of the attesting witnesses that the instrument is her will, and iv) there were two attesting witnesses who attested to the testator's signature and, at the request of the testator, signed their names and affixed their signatures to the instrument (EPTL 3-2.1; see Matter of Walker, 124 AD3d 970, 971 [3d Dept 2015]; Matter of Halpern, 76 AD3d 429, 431-432 [1st Dept 2010]).

Petitioners have proffered the 1404 testimony of Simon where she avers Theodore brought decedent to attorney Kaplan's office on the date of the will execution; that Kaplan met with decedent for about an hour to discuss the will prior to its execution; that her job was to type the will based upon Kaplan's notes; that Kaplan supervised the execution of the will; that the testator signed in front of the witnesses and that the witnesses signed in front of the testator; that she recognized her own signature on the will as well as the signature of the other attesting witness, Chiaramonte. She testified that the testator acknowledged the document was her will when the two attesting witnesses signed, and she did so by responding affirmatively after Kaplan asked her if she wished them to witness the will.

Petitioners have also submitted the 1404 testimony of attorney Kaplan that he was present for the will execution and that he had seen the witnesses sign the will. Kaplan recognized his signature and his notary seal, and he testified that he knew the two attesting witnesses. Kaplan also testified as to the usual practice of his will execution ceremony which satisfied the statutory requirements (EPTL 3-2.1).

Petitioners' submissions have established, prima facie, that the requirements of EPTL 3-2.1 were met. The attestation clause and self-proving affidavit attached to the propounded instrument give rise to a presumption of compliance with the statutory requirements (see Matter of Selvaggio, 146 AD3d 891 [2d Dept 2017]; Matter of Rottkamp, 95 AD3d 1338, 1339 [2d Dept. 2012]; Matter of Farrell, 84 AD3d 1374 [2d Dept 2011]; see e.g. Matter of Mele, 113 AD3d 858, 860 [2d Dept 2014]). There is also a presumption of due execution based upon the evidence that the attorney draftsperson supervised the will's execution (see Matter of Templeton, 116 AD3d 781 [2d Dept 2014]; Matter of Tuccio, 38 AD3d 791 [2d Dept 2007]; Matter of Finocchio, 270 AD2d 418 [2d Dept 2000]).

In opposition to the motion, objectant argues that petitioner can not establish due execution because the complete record before the court lacks any competent evidence linking the proffered instrument to decedent's intentions, citing to the holding in Matter of Walker, 124 AD3d 970 (3d Dept. 2015).

In Matter of Walker, supra, the appellate court affirmed the surrogate court's denial of admission of an instrument to probate, after a bench trial, based upon petitioner's failure to establish due execution. In that matter, the evidence showed that decedent never personally communicated with the purported drafting attorney regarding the terms of the instrument. In fact, the "drafting" attorney, who was also petitioner's attorney on appeal, informed the appellate court at oral argument that he did not draft the instrument offered for probate and that his office was involved only in a "ministerial capacity," akin to "LegalZoom." The appellate court affirmed the [*4]surrogate court's finding that there was "no competent evidence linking the proffered instrument to decedent's intentions," (Id. at 971) and declined to disturb the decree denying probate "in light of the uncertainty surrounding the drafting and execution" of the instrument (Id. at 973).

Objectant contends that the evidence in this case is analogous to Matter of Walker because attorney Kaplan testified, at a certain point during questioning, that he did not recall drafting a will for decedent, an event that occurred thirteen (13) years prior to his examination. While the record before the court clearly differs from the facts as found in Walker, and the court does not find that this Appellate authority mandates the result urged by objectant, there are other issues raised by objectant.

Objectant also argues that Kaplan's testimony, to the extent he states his lack of memory of the will drafting and execution, raises a triable issue of fact with respect to due execution. Contrary to the petitioners' argument, the law does not require that the attorney testify to each and every element of the execution ceremony to establish due execution (see e.g. Matter of Leach, 3 AD3d 763, 765 [3d Dept 2004]; Estate of Alvin Roderick Lewis, NYLJ, Nov. 13, 2012 at 23, col.6 [Sur Ct, Kings County]) and the lack of memory of the attorney draftsperson, standing alone, is not sufficient to raise a triable issue of fact with respect to due execution (see generally Matter of Collins, 60 NY2d 466 [1983]; Matter of Farrell, 84 AD3d 1374 [2d Dept 2011]; Matter of Rosen, 291 AD2d 562 [2d Dept 2002]; Estate of Linda Monahan, NYLJ, July 13, 2004 at 33, col 6 [Sur Ct, Suffolk County]).

Objectant further argues that Kaplan gave other incongruous testimony that he never "met with" nor "spoke to" the decedent, and that this raises a triable issue of fact with respect to due execution. Additionally, objectant argues that the will could not have been duly executed by decedent because she was not sufficiently fluent in the English language to understand its terms, and no translation was provided into the Chinese dialect which she spoke. In support of this argument objectant cites to Kaplan's testimony in response to counsel's question whether decedent could "read, write and converse" in the English language. Kaplan replied: "Well, that was stretching it" (Kaplan transcript at 40-41). When Kaplan was separately asked whether he knew if decedent could speak, read and write English, his response was: "I don't know" (Id.). Objectant also points to Patricia's testimony and affidavit describing decedent's limited command of the English language, and also to Theodore's testimony that decedent had no formal training in the English language and that decedent normally spoke to her family in Chinese. It is also undisputed that Kaplan could not speak Chinese and that a Chinese translator was not used when the instrument was drafted or executed.

Petitioners respond that the testimony selected by objectant regarding Kaplan's memory of the execution ceremony disregards the totality of the evidence presented that he performed the drafting and execution of the will, and that it is unreliable because the examination of Kaplan, who is now deceased, was conducted at his home when he was eighty-nine years old and suffering from dementia and numerous other medical conditions. Indeed, petitioners point to other portions of Kaplan's testimony that he did, in fact, prepare decedent's will and that his secretary Simon typed it.

In further response, petitioners submit the "self-proving" affidavit of the attesting witnesses stating that decedent could read, write and converse in the English language, the testimony by Kaplan that he spoke with the decedent both before and after the will was signed, [*5]and the testimony by Simon as to her belief that decedent could read, write and converse in English. Also submitted are many English language documents purportedly written by decedent, including copies of checks and several notebooks recording the rent rolls of her tenants. In addition, petitioners submit various English language legal documents purportedly signed by decedent including copies of leases, a New York Life annuity contract dated July 28, 2003, the irrevocable trust dated December 1, 1999 ("Po Jun Chin Irrevocable Trust"), a deed dated May 16, 2000 transferring property in Long Island City, powers of attorney in 1997, 2005 and 2006, and a contract for sale of shares of 44-03 Realty Corp. dated December 31, 2004.

Although evidence of a testator's lack of facility with the English language is not "an insuperable barrier" to a finding of due execution (see e.g. Matter of Albarino, 45 Misc 2d 216, 218 [Sur Ct, Queens County 1964] affd 23 AD2d 535 (2d Dept 1965), affd 16 NY2d 927 [1965]), where "the testator is not fluent in English [the proponent] has a greater burden in establishing 'that the mind of the testator accompanied the act, and that the instrument executed speaks [her] language and really expresses [her] will'" (Matter of Watson, 37 AD2d 897, 898 [3d Dept. 1971], citing Rollwagen v Rollwagen, 63 NY 504, 517 [1876]). The pertinent question is whether the evidence shows that decedent knew and understood the contents of the instrument that she was signing (Matter of DeMaio, 43 Misc 3d 1218 [A] [Sur Ct, Queens County 2014]; Matter of Llewellyn, NYLJ, December 23, 2014 at 19, col 1 [Sur Ct, NY County]; cf. Matter of Rapp, 194 AD 88 [2d Dept. 1920]).

It is well settled that it is not the court's function on a motion for summary judgment to assess credibility (see Ferrante v American Lung Ass'n., 90 NY2d 623, 631 [1997]; Daliendo v Johnson, 147 AD2d 312, 317 [2d Dept 1989]). The court's role is limited to "issue finding" and not "issue determination" and summary judgment should be denied where there is any doubt as to the existence of a triable issue (see Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395 [1957]; see also Rotuba Extruders Inc. v Ceppos, 46 NY2d 223 [1978]; see also Rivers v Birnbaum, 102 AD3d 26, 42 [2d Dept 2012]; Dykeman v Heht, 52 AD3d 767, 768 [2d Dept 2008]; Celardo v Bell, 222 AD2d 547, 548 [2d Dept 1995]).

Based upon the conflicting evidence presented concerning decedent's ability to understand, speak and read English, and the undisputed evidence that the propounded instrument was written and the ceremony was executed entirely in English with no translation provided, as well as conflicting testimony given by Kaplan regarding the execution ceremony itself, material issues of fact exist as to whether the instrument was duly executed which lie within the province of the jury (see e.g. Estate of Antonio Conciatori, NYLJ, March 17, 2014 at 21, col 4 [Sur Ct, Bronx County]; see also e.g. Will of Rivera, NYLJ, June 20, 2016 [Sur Ct, Kings County]; Estate of Alex Henig, NYLJ, December 24, 2001 at 28, col 6 [Sur Ct, Kings County]).

Accordingly, the branch of petitioners' motion for summary judgment dismissing the objection based upon lack of due execution is denied. Likewise, the branch of the cross motion for summary judgment dismissing the petition for probate based upon the lack of due execution is denied.

The next branch of the motion seeks summary judgment dismissing the objection that the will is the product of undue influence.

With respect to undue influence, the burden of proof generally lies with the party asserting undue influence (see Matter of Walther, 6 NY2d 49, 54 [1959]; see also Matter of [*6]DelGatto, 98 AD3d 975, 977-978 [2d Dept 2012]). In support of their motion for summary judgment, the petitioners have made a prima facie showing of entitlement to judgment as a matter of law dismissing this objection by submitting the SCPA 1404 testimony of the attorney draftsperson and the witness as well as the "self-proving" affidavit, which demonstrate that the decedent understood the terms of the will when it was executed and was free of restraint, and that the will was not the product of undue influence. The role of the court, therefore, is to determine whether objectant raises a triable issue of fact (see O'Brien v Port Authority of NY & NJ, 29 NY3d 27, 37 [2017]; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957]).

For the will to be denied probate based upon undue influence, "it 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 [or her] free will and desire, but which he [or she] was unable to refuse or too weak to resist. "It must not be the promptings of affection; the desire of gratifying the wishes of another; the ties of attachment arising from consanguinity, or the memory of kind acts and friendly offices" (Matter of Walther, 6 NY2d 49, 53 [1959], quoting Children's Aid Socy. of NY v Loveridge, 70 NY 387, 394 [1877]; see Matter of DiDomenico, 101 AD3d 998, 1000 [2d Dept 2012]; Matter of Favaloro, 94 AD3d 989, 992 [2d Dept 2012]).

Objectant alleges that Theodore was in a confidential relationship with the decedent because she gave him a power of attorney on January 10, 1997 and he was intimately involved with decedent's business and legal affairs. A confidential relationship raises an inference that Theodore exercised undue influence (see Matter of Putnam, 257 NY 140 [1931]; Matter of DelGatto, 98 AD3d 975, 978 [2d Dept 2012]; Matter of Collins, 124 AD2d 48 [4th Dept 1987]; Matter of Hirschorn, 21 Misc 3d 1113[A] [Sur Ct, Westchester County 2008]) and casts upon him the burden of explaining the circumstances of his bequest, the adequacy of which presents a question of fact for determination by a jury (see Matter of Neenan, 35 AD3d 475, 476 [2d Dept 2006]; Matter of Bach, 133 AD2d 455, 457 [2d Dept 1987]; Matter of Burke, 82 AD2d 260 [2d Dept 1981]). Even if Theodore was in a confidential relationship with decedent, however, the relationship is counterbalanced by the close family relationship which existed between decedent and her son (see Matter of Anella, 88 AD3d 993, 995 [2d Dept 2011]; Matter of Zirinsky, 43 AD3d 946, 948 [2d Dept 2007]). Under these circumstances, no inference of undue influence by Theodore arises as a matter of law (see Matter of Fiumara, 47 NY2d 845, 847 [1979]; Matter of Scher, 74 AD3d 827, 828 [2d Dept 2010]; Matter of Zirinski, 43 AD3d at 948).

Objectant next alleges that circumstantial evidence establishes that the will was procured by means of undue influence exercised by petitioners. Circumstantial evidence may be proffered to sustain a claim of undue influence, but such indirect proof must be of a substantial nature (see Matter of Walther, 6 NY2d 49, 56 [1959]; Matter of Zirinsky, 43 AD3d 946, 948 [2d Dept 2007]). The circumstantial evidence may include the physical and mental condition of the testator; whether the propounded instrument deviated from the testator's prior testamentary plan; whether the attorney who drafted the will was the testator's attorney; whether the person who allegedly wielded the undue influence was in a position of trust and confidence; the opportunity and disposition of the person to wield undue influence; and whether the testator was isolated from the objects of her natural affection (see generally e.g., Children's Aid Socy. of NY v Loveridge, 70 NY 387 [1877]; Matter of Anna, 248 NY 421, 424 [1928], quoting Rollwagen v [*7]Rollwagen, 63 NY 504, 519 [1876]; Matter of Katz, 63 AD3d 836 [2d Dept 2009]; Matter of Elmore, 42 AD2d 240 [3d Dept 1973]; Matter of Kruszelnicki, 23 AD2d 622 [4th Dept 1965]; see also Matter of Burke, 82 AD2d 260, 270-272 [2d Dept 1981]; Matter of Hirschorn, 21 Misc 3d 1113 [A] [Sur Ct, Westchester County 2008]; Matter of Zirinski, 10 Misc 3d 1052[A] [Sur Ct, Nassau County 2005]).

There is evidence that the propounded will deviated from decedent's prior testamentary plan. In a prior instrument dated June 8, 1987, Patricia is named as an equal residuary beneficiary with Theodore and "Philip Let Hang Chin," whom objectant argues is misidentified as decedent's "brother-in-law" rather than her son. Any misidentification is of no moment, however, because the significance of the prior instrument is that Patricia is treated as an equal co-beneficiary of the residuary estate. By contrast, the April 10, 2003 instrument which was executed after the death of decedent's husband limited Patricia's interest to partial shares in Hong Kong Sea Food King Inc. and removed her entirely from the residuary estate which is bequeathed solely to petitioners.

Decedent's equal treatment of Patricia with her brothers is also evidenced by the Po Jun Chin Irrevocable Trust which was prepared by Kaplan and executed by her on December 1, 1999, approximately three years prior to execution of the will. The trust named petitioners as trustees and Patricia, Theodore and Philip as equal beneficiaries upon decedent's death.

Decedent's prior testamentary plan is also evidenced by an annuity contract with New York Life Insurance which was prepared by her son-in-law Raymond Lee and executed by her on July 28, 2003, only three months prior to the will. Decedent named her three children as equal beneficiaries of the New York Life Insurance annuity contract.

"A change in testamentary intention, as bearing on the allegation of undue influence in procuring a will, may be an important circumstance but its force depends mainly upon its connection with associated facts" (Matter of Scher, NYLJ, September 29, 2008 at 20, col 1 [Sur Ct, Kings County], quoting Horn v Pullman, 72 NY 269, 276-277 [1878]; see e.g. Estate of Teresa Driscoll, NYLJ, July 22, 1998 at 23, col 1 [Sur Ct, Westchester County]; cf. Matter of Malone, 46 AD3d 975, 978 [3rd Dept 2007]). In this case, the associated facts show that the instrument prepared by Kaplan substantially deviates from all the other instruments purportedly executed by decedent which granted Patricia an equal interest with other beneficiaries (see e.g. Will of Louise Jacobson, NYLJ, Aug. 6, 2013 at 35 [Sur Ct, Suffolk County]). The residuary estate in the proffered instrument, which is bequeathed only to Theodore and Philip, consists of personal property worth over seven million dollars. By contrast, Patricia is bequeathed only one-third (1/3) of decedent's shares in Hong Kong Sea Food King, Inc., that share amounting to approximately $560,000.00.[FN1]

The circumstantial evidence also evidences that Theodore had the "opportunity and disposition" (Matter of Anna, 248 NY 421, 424 [1928], quoting Rollwagen v Rollwagen, 63 NY 504, 519 [1876]) to wield undue influence. Theodore testified that he has an alternative view of decedent's testamentary plan which emphatically contradicts the above documentary evidence. He testified that his mother actually wanted Patricia to get nothing because of her belief in "old-fashioned" Chinese cultural practice. He testified as follows:

Q: [Y]our mother wanted you and your brother to get all the assets; is that correct?A: Yes . . .Q: . . . she only wanted you and your brother to have all the assets?A: My mother is very old-fashioned Chinese and old-fashioned Chinese believe that everything goes to the son . . .Q: Could you explain what you mean by old-fashioned Chinese?A: Old-fashioned Chinese is old-fashioned Chinese. That's the culture and that's what she grew up in.Q: That the daughter is to get nothing and the son is to get everything?A: Yes . . .Q: So just you and your brother?A: Yes.(Theodore transcript at 183-184).

In furtherance of his own view, the evidence shows that Theodore consistently pursued a course of conduct that either reduced or extinguished any share that Patricia would receive. With respect to the instrument offered for probate, Patricia's interest in Hong Kong Sea Food King Inc. was substantially reduced by Theodore who used his power of attorney to make numerous inter vivos gifts of shares of the corporation to himself, his children and other family members.

The evidence also tends to show that petitioners used their positions as trustees of the Po Jun Chin Irrevocable Trust to deny Patricia her interest as remainder beneficiary thereof. Although a statement for the trust dated January 22, 2000 shows that the amount of the trust was $1,100,000.00, Theodore testified that the assets of the trust were only $10,000.00 (Theodore transcript at 194). He also gave contradictory testimony that the trust was never in existence (Theodore transcript at 197), raising questions about his credibility.

Petitioners also used their powers of attorney to surrender the July, 2003 New York Life Insurance annuity policy only eight days prior to decedent's death in 2016, receiving a payment of approximately $178,000.00. The money was deposited into a joint account with survivorship rights in favor of Philip. This sudden use of the power of attorney on the eve of decedent's death does not appear to have been done in the principal's best interests (see e.g. Matter of Ferrara, 7 NY3d 244 [2006]) but, rather, only for the benefit of Philip and served to deny Patricia an equal share as beneficiary.

There is also evidence, close in proximity to the execution of the will, that Theodore had both the opportunity and motive to exert undue influence over decedent's financial affairs. Fourteen (14) days prior to the will execution Theodore signed a deed selling real property owned by decedent and located in Long Island City, for the sum of $445,000.00. Although the evidence shows that decedent was the sole shareholder of the corporation that owned the property, Theodore signed a deed representing he was "vice-president" of the corporation, an agency that is not established in the record before the court. More importantly, Theodore was unable to account for any of the proceeds he received from the sale of decedent's property in his pre-trial testimony (Theodore transcript at 216-217).[FN2]

There is also evidence that Theodore had a pre-existing relationship with Kaplan at the time the will was drafted (see e.g. Matter of Leeds, 2015 NY Misc. LEXIS 2582 [Sur Ct, Nassau County 2015]). It is undisputed that decedent's prior attorneys, Leavitt and Kerson, were terminated and Kaplan was hired sometime in the mid-1990's, contemporaneous with the time Theodore started managing decedent's businesses and collecting the rents from her tenants at properties that included Po Jun Realty Corp., 46-09 Realty Corp. and the real property located at 45-24 43rd Street (Theodore transcript at 24). Patricia states in her affidavit that it was Theodore and Philip, in fact, who fired decedent's attorneys of thirty-seven (37) years, Leavitt & Kerson, and hired Theodore's lawyer, Kaplan. Moreover, Kaplan and Simon both testified that Kaplan did legal work for Theodore, and that Theodore met with Kaplan concerning the preparation of leases for the real estate corporations.

Theodore's motive and opportunity to exert undue influence over decedent in the preparation of the will is further bolstered by testimony that: (i) Kaplan only met with decedent concerning the will on the one day, April 10, 2003, when it was drafted and executed, and (ii) Kaplan did not have any prior phone conversations with the decedent concerning the will and he kept no notes concerning the drafting or will execution ceremony, and (iii) Theodore had about a half-dozen meetings in Kaplan's office before bringing decedent in for the will execution (Simon transcript at 74), and (iv) Theodore brought decedent to the will execution ceremony and was present there on that day.

Coupled with these facts is Kaplan's testimony that Theodore had given him information to put in decedent's will (Kaplan transcript at 93). This evidences that undue influence may have been actually utilized by Theodore in the preparation of the will (see e.g. Matter of Gerdjikian, 8 AD3d 277, 278 [2d Dept 2004]; Matter of Kryk, 18 Misc 3d 1105[A] [Sur Ct, Monroe County]; cf. Matter of Bustanoby, 262 AD2d 407 [2d Dept 1999]; see generally Matter of Fiumara, 47 NY2d 845, 846; Matter of Walther, 6 NY2d 49, 55; Matter of Favaloro, 94 AD3d 989, 993 [2d Dept 2012]).

Viewing the evidence in a light most favorable to the objectant, insofar as she is opposing petitioners' motion for summary judgment, the court finds that objectant has come forward with sufficient circumstantial evidence that raises triable issues of fact with respect to undue influence (see generally e.g. Rollwagen v Rollwagen, 63 NY 504, 519 [1876]; Matter of Cavallo, 6 AD3d 434 [2d Dept 2004]; Matter of O'Brien, 182 AD2d 1135 [4th Dept 1992]; Matter of Pavelock, 16 Misc 3d 1124[A] [Sur Ct, Dutchess County 2007]; see also Matter of Katz, 63 AD3d 836, 838 [2d Dept 2009]; Matter of Gerdjikian, 8 AD3d 277 [2d Dept 2004]).

Accordingly, that branch of petitioners' motion for summary judgment dismissing the objection based upon undue influence is denied. In light of the existence of triable issues of fact on the issue of undue influence, the objectant's cross motion for summary judgment denying admission of the instrument to probate on this ground is denied.

The next branch of the motion seeks summary judgment dismissing the objection to [*8]probate based upon fraud. For probate of the will to be denied based upon fraud, there must be evidence that either or both of the petitioners knowingly made a false statement to the testator which caused her to dispose of her property in a manner differently than she would have absent that statement (see Matter of Cavallo, 6 AD3d 434 [2d Dept 2004]; Matter of Evanchuk, 145 AD2d 559, 560 [2d Dept 1988]).

In opposition to petitioners' prima face showing of entitlement to summary judgment as a matter of law, objectant has failed to present any evidence of a false statement knowingly made by either of the petitioners that caused decedent to dispose of her property any differently (see e.g. Matter of Zirinsky, 43 AD3d 946, 948 [2d Dept 2007]).

Accordingly, the branch of the motion for summary judgment dismissing the objection based upon fraud is granted. Likewise, inasmuch as objectant failed to make a prima facie showing that the will was procured by fraud, the cross motion for summary judgment dismissing the petition on this ground is denied.

With respect to the objection that the will was procured by duress, it appears that the factual grounds for same are subsumed by the objection that the will was procured by means of undue influence. Objectant does not otherwise proffer any evidence that the instrument offered for probate was procured by actual or threatened acts of physical violence at the time it was prepared or executed (see e.g. Matter of Rosasco, 31 Misc 3d 1214[A] [Sur Ct, New York County 2011]).

Accordingly, the branch of the motion for summary judgment dismissing the separately plead objection based upon duress is granted (see Will of Jacobson, NYLJ, Aug. 6, 2013 at 35 [Sur Ct, Suffolk County]), and objectant's cross-motion for summary judgment dismissing the petition for probate on this ground is denied.

Petitioner is directed to file a note of issue and certificate of readiness on or before January 31, 2018 together with a statement of issues (22 NYCRR § 207.29, § 207.30). Counsel for the respective parties and their clients are directed to appear for a pretrial conference on February 13, 2018, 9:30 AM. No adjournments shall be permitted without prior court approval.

This is the Decision and Order of this Court.

Dated: January 2, 2018

Hon. Peter J. Kelly

SURROGATE Footnotes

Footnote 1:This amount is calculated based upon the value ascribed to Hong Kong Sea Food King Inc. in petitioners' application for extension of preliminary letters dated August 11, 2017.

Footnote 2:Theodore's alternative view of decedent's testamentary scheme is also evidenced by gift tax returns he filed as decedent's power of attorney at the time of decedent's death in 2016, but for the prior years 2000, 2004 and 2006, all of which show that he and Philip granted themselves substantial gifts of decedent's interest in property at 45-24 43rd Street, Long Island City and 44-03 Realty Corp. to the exclusion of Patricia. Additionally, over $200,000.00 and real property in Arizona were gifted to Theodore's children.