Matter of Robbins

[*1] Matter of Robbins 2018 NY Slip Op 51461(U) Decided on October 3, 2018 Surrogate's Court, Queens County Kelly, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on October 3, 2018
Surrogate's Court, Queens County

In the Matter of the Probate Proceeding, Will of Sonia Yudko Robbins, a/k/a SONIA ROBBINS, a/k/a SONIA YUDKO Deceased.



2016-4158



Attorneys for proponent David H. Schwartz:

Law Office of Donna Furey, Esq.

21-83 Steinway St., Astoria, NY 11105

347-448-2549

Co-Counsel-Michael K. Stanton Jr., Esq.

and Gerard M. Wrynn, Esq.

Ferguson Cohen, LLP

One North Lexington Ave, Suite 701

White Plains, New York, 10601

914- 397-2400, Ext 226

Attorney for objectant: Sari Escovitz

William V. DeCandido, Esq.

71-50 Austin St. Suite 208

Forest Hills, NY 11375

718-275-6600

Guardian ad litem-Attorney for infant legatees

Shelly Ann Quilty-Lake, Esq.

Meanan & Associates, LLC

299 Broadway, Suite 1310

New York, NY 10007

212-226-7334
Peter J. Kelly, S.

David H. Schwartz, proponent of an instrument dated January 29, 2013 submitted as decedent's last will and testament, moves for summary judgment dismissing the objections filed herein and seeks the admittance of the will to probate. The guardian ad litem for four infant legatees also moves for summary judgment seeking identical relief.

Decedent died on April 12, 2016, at the age of 93, survived by her son, the petitioner, and her daughter, Sari Escovitz, the objectant.

The purported will, which was drafted by an attorney who also supervised its execution, bequeaths decedent's cooperative apartment to petitioner and distributes the residuary estate 60% to petitioner, and the remaining 40% in equal shares to petitioner's four children.

Paragraph Third of the instrument provides as follows: I make no provision for my daughter, SARI ESCOVITZ, forreasons known to her. In no event shall she be entitled toany part of my estate pursuant to the provisions of this Willor as an intestate distribution. In all circumstances, my propertyshall be disposed of as if SARI ESCOVITZ had not survived me.

The decedent had lived on her own prior to the execution of the instrument, and maintained such living arrangements until October of 2015, after which she resided with petitioner and his family until her death in April of 2016.

After the decedent's death, the instant petition was filed and SCPA 1404 examinations were held. Objections were filed alleging that the decedent was not of sound memory and not mentally capable of making a will, and that the purported will was not freely or voluntarily made but procured by fraud or undue influence practiced upon the decedent by petitioner or some other person(s) whose names were unknown at the time. Following the completion of discovery, petitioner and the guardian ad litem filed the underlying motions for summary judgment dismissing the objections. In opposition to the motions, objectant contends that triable issues of fact exist rendering summary judgment unavailable.

Although exercised cautiously, summary judgment in a contested probate proceeding is proper where the proponent makes out a prima facie case for probate and the objectant fails to raise any genuine material issues of fact (Matter of Minervini, 297 [*2]AD2d 423, 424; Matter of Coniglio, 242 AD2d 901). Indeed, summary judgment may be granted even where such proceedings involve issues of a fact-sensitive nature, such as fraud and undue influence (see Matter of Neuman, 14

AD3d 567; Matter of Goldberg, 180 AD2d 528; Matter of Zirinsky, 10 Misc 3d 1052[A], aff'd 43 AD3d 946).

To defeat summary judgment, an objectant must assemble and lay bare affirmative proof to demonstrate the existence of a genuine triable issue of fact (see Stainless, Inc. v Employers Fire Ins. Co., 69 AD2d 27, aff'd 49 NY2d 924). The allegations put forth must be specific and detailed and substantiated by evidence in the record; mere conclusory assertions are not sufficient (Iselin & Co. v Mann Judd Landau, 71 NY2d 420; Matter of O'Hara, 85 AD2d 669, 671). The papers submitted in support of and in opposition to the motion are to be scrutinized carefully in the light most favorable to the party opposing the motion (see Ptasznik v Schultz, 223 AD2d 695, 696; Robinson v Strong Mem. Hosp., 98 AD2d 976). If there is a doubt as to the existence of a triable issue of fact, the motion should be denied (Phillips v Kantor & Co., 31 NY2d 307, 311).

Turning first to the objection alleging lack of testamentary capacity, petitioner and the guardian ad litem have the burden of demonstrating by a preponderance of the evidence that the decedent, at the time of the execution of the offered instrument had testamentary capacity (see Matter of Kumstar, 66 NY2d 691). Capacity is presumed, unless there is evidence to the contrary, and the mental acuity required to execute a will is less than that of other legal documents, requiring only that the decedent generally understood the nature and consequences of executing a will; was aware of the nature and extent of her assets; and knew the natural objects of her bounty and her relations with them (see e.g. Matter of Anella, 88 AD3d 993; Matter of Coddington, 281 AD 143; Matter of Harper, 2014 NYLJ Lexis 4032 [Sur Ct, Bronx County 2014]).

Petitioner and the guardian ad litem rely on the 1404 deposition testimony of the attesting witnesses; the attestation clause; the self-proving affidavit which expressly states that the testator was of sound mind, memory and understanding; an affidavit in support of the motions by the attorney who drafted and supervised the instrument's execution; and reply affirmations in response to objectant's opposition to the motions.

Both of the attesting witnesses testified that the decedent was alert, able to speak and answer the questions that were posed to her. The attorney-draftsperson testified that she met with the decedent in December 2012 to review her assets and that she found that her mental acuity at the time she did her will ..."was good, very good; she knew what she wanted and she gave me instructions." As a follow-up to their meeting, counsel sent a letter to decedent dated January 7, 2013, memorializing the information decedent had provided identifying her assets and providing information to decedent about estate planning with recommendations.

The attorney-draftsperson also testified that the decedent told her that she had a son and a daughter and that, although she maintained a relationship with her son, she did not maintain one with her daughter who resided in Colorado and never visited decedent. Counsel's handwritten notes on December 11, 2012 identify the information decedent provided her, i.e., that she wanted proponent and his children to be her beneficiaries and nothing for her daughter, objectant herein. The other attesting witness, who had previously represented decedent, testified that he had a "casual conversation" with decedent in his office on the day of the will execution and "had no reason to [*3]believe that she didn't have capacity or was under duress."

In her affidavit in support of the motions, the attorney-draftsperson averred that the decedent, "was actively engaged in all of the issues involving the legal matters on which I was involved, and, was, at all times of an independent, focused and competent mind." She also averred that about late 2012 through early 2013, in connection with estate planning, they discussed tax issues with a possible use of an estate planning vehicle. Counsel testified that "decedent was engaged at all times and consistently demonstrated a state of mental acuity and sharpness that led me to believe that at all times she was competent, had a clear understanding of her goals and... in the consequence of those goals."

Based upon the foregoing, the Court finds petitioner and the guardian ad litem have established, prima facie, that the decedent possessed testamentary capacity at the time of the execution of the purported will.

In her affidavit in opposition to the motion objectant avers that, based upon her experiences with her mother and the evidence discovered during the probate contest, she believes that her mother had progressive dementia that began at least 10 years prior to the will's execution and that her mental, emotional and physical capacity were diminished prior to, during and following the will's execution. Although ordinarily the opinion of a lay witness is not admissible for the purpose of determining soundness of mind, in a probate proceeding, the testimony of the subscribing witnesses may be used for such purpose (see, In re Will of Nogueira, 32 Misc 2d 446). Objectant, however, was not a subscribing witness to the will's execution and therefore not qualified to provide such opinion testimony regarding her mother's capacity at the time of the instrument's execution. Furthermore, objectant testified that she had not seen the decedent since 2011, had rarely spoken to her, and was not personally involved in her care, so a factual basis for her opinion is lacking.

Objectant also submits uncertified copies of medical records by decedent's primary care physician for the period 2012-2014 indicating that decedent had suffered a transient ischemic attack (TIA) prior to the will's execution, had been treated for a cataract and was being followed for skin cancer and other physical ailments. The Court notes that uncertified medical records are inadmissible evidence. However, even if the Court were to consider the medical records, they state that, decedent was "oriented times three," was "well developed, well nourished, in no distress" and involved in her own treatment and care. Hence, the medical records actually support petitioner's position that the decedent was lucid and rational at the time the instrument was executed on January 29, 2013 and that she didn't appear to be suffering from any physical or mental condition that affected her capacity to execute a testamentary instrument. It was not until June 2014, a year and a half after the execution of the purported will, that her primary care physician referred her to a neurologist for an MRI and to rule out dementia.[FN1] At most, the medical records, around the time of the will's execution, show decedent was of advanced age and was enduring physical infirmities and illnesses which, without more, are not inconsistent with testamentary capacity (see Matter of Hedges, 100 AD2d 586, 588; Matter of Buchanan, 245 AD2d 642, 664). In fact, the evidence offered by the movants show that [*4]the decedent lived alone and functioned independently until October of 2015.

In the absence of any admissible evidence tending to show a triable issue exists in regard to decedent's testamentary capacity, the branches of the motions for summary judgment dismissing the objection as to lack of testamentary capacity are granted.

Turning now to the branches of the motions seeking to dismiss the objection that the will is a product of fraud, although the burden of proof at trial would be on objectant, to be successful on these motions for summary judgment, movants must first show, prima facie, the absence of fraud. Based upon the documents referred to above and testimony submitted in support of the motions by counsel that decedent was free from any restraint, movants have sustained their burden to establish, prima facie, that the purported will was not a product of fraud.

Objectant, therefore must demonstrate, by "clear and convincing evidence", that an issue of fact exists indicating that someone knowingly made a false

statement which caused the decedent to execute a will that disposed of her property in a manner different from the disposition she would have made in the absence of that statement (see Matter of Marin, 82 AD3d 982; Matter of Eastman, 63 AD3d 738).

However, objectant has not presented any knowingly false statement made by petitioner, or any other person, which induced decedent to make a will disposing of her property in a manner differently than she would have in the absence of that statement in her submissions (see Matter of Evanchuck, 145 AD2d 559).

Accordingly, as the objectant does not establish with particularity that any false statements were actually made by petitioner or anyone else that raises an issue of fact requiring a trial on this issue, the branches of the motions to dismiss the objections as to fraud are granted.

Lastly, turning to the branches of the motions for summary judgment dismissing the objection alleging undue influence, proof in the form of the self-proving affidavit of the attesting witnesses attached to the instrument offered for probate indicating that the testator was not suffering from any diminished capacity and "...not under any restraint ...," has been submitted which is consistent with the 1404 testimony of the attesting witnesses. In further support of movants' positions, the attorney-draftsperson testified that the decedent confirmed that she did not want to leave anything to her daughter and this conversation was memorialized in counsel's notes of December 11, 2012.

The attorney-draftsperson avers that, "the decedent acted (in all respects) independently and individually and insofar as proponent was concerned, he was not involved in that process in any way whatsoever... Decedent was clear, concise and consistent in her wishes with respect to her will, its impact and its scope, she was competent to execute it and did so independently-free from influence or impairment."Although the record reveals that decedent did ask the attorney-draftsperson to contact the petitioner regarding the purported will, such request was limited to obtaining the correct spelling of his children's names, who are listed as testamentary beneficiaries. The attorney-draftsperson further testified that petitioner made inquiry of her in January of 2014 in reference to the power of attorney (POA) decedent had executed in December 2012 appointing him her attorney-in-fact. After contacting the decedent in relation to petitioner's inquiry regarding the POA, decedent communicated to her attorney that she did not want him involved in her affairs unless she said so.

It is uncontraverted that decedent was living on her own at the time of the execution of the instrument offered for probate and that she retained the services of the attorney-draftsperson, who had previously represented her, for her estate planning. The attorney-draftsperson opined that [*5]decedent was not influenced in any way by any other person in connection with the purported will, and testified that she "was very opinionated and no one told her what to do." The only persons present at the execution of the subject instrument were the attorney-draftsperson, the other attesting witness, a notary and the decedent. In fact, both parties acknowledge that decedent acted independently and that she was very private, particularly with regard to her finances. Based upon the foregoing evidence, the Court finds movants have established, prima facie, the absence of undue influence.

In order for objectant to survive summary dismissal of her objection based upon undue influence, she must demonstrate that there is a triable issue of fact that undue influence was actually exercised on the decedent that "amounted to a moral coercion, which restrained independent action and destroyed free agency, or which, by importunity which could not be resisted, constrained the testator to do that which was against his free will and desire, but which he was unable to refuse or too weak to resist" (Matter of Walther, 6 NY2d 49, 53, quoting Children's Aid Soc. v. Loveridge 70 NY 387,394). Although circumstantial evidence may be proffered to sustain a claim of undue influence, such indirect proof must be of a substantial nature (see Matter of Walther, supra at 54; Matter of Zirinsky, 43 AD3d 946, 948). Mere speculation and conclusory allegations, without specificity as to where and when the influence was exerted are insufficient to raise an issue of fact (see Matter of Walker, 80 AD3d 865, 867).

Objectant alleges the following grounds to support her claim of undue influence: decedent's diminished capacity; deliberate isolation of decedent from objectant by petitioner; an inference of a confidential relationship between decedent and petitioner created by the POA decedent gave petitioner; improper gifting by petitioner utilizing the POA; petitioner's removal of objectant's name from in trust for (ITF) bank accounts; and a letter petitioner sent to objectant after decedent's death which she asserts establishes motive and opportunity by petitioner to practice undue influence upon decedent.

Insofar as objectant's reliance on diminished capacity is concerned, it goes without saying that a testator, fully possessed of her mental faculties, is far less vulnerable to the overreaching of others than one who is lacking of capacity (see e.g. Children's Aid Soc v. Loveridge, supra). However, the Court has already found decedent had testamentary capacity and that objectant had failed to establish that the decedent had any diminished capacity at the time, or prior thereto, of the instrument's creation and execution. Objectant's proferred belief that decedent had diminished capacity, making her vulnerable to petitioner's undue influence is, without more, conclusory in nature and merely speculative( see Matter of Walker, supra at 867).

Deliberate isolation from family members is also considered in assessing undue influence ( see, eg. Matter of Zirinsky, 10 Misc 3d 1052(A) [Sur Ct, Nassau County 2005]). In this regard, objectant has provided generalized and contradictory accusations that petitioner prevented her from communicating and visiting the decedent after she moved to his home in October of 2015. However, as the instrument at issue was executed in January of 2013, almost 3 years prior to such move, the proof, even if true, is not relevant. The relevant proof actually establishes that objectant admitted that she had difficulty communicating with decedent for years, had not visited the decedent since 2011 due to "personal issues," and that petitioner kept her informed about decedent. Nor does the [*6]record contain any proof from independent sources that objectant was prevented access to decedent prior to or about the time of the instrument's execution.

It is also contended that petitioner was designated as attorney-in-fact for the decedent and, thus, was in a confidential relationship with decedent which would raise an inference of undue influence. The fact that petitioner may have been in a confidential relationship with his mother (see Matter of Neenan 35 AD3d 475), however, is counterbalanced in this case by the closeness of the family relationship (see Matter of Walther, supra at 56). No inference of undue influence automatically arises in these circumstances (see Matter of Fiumara, 47 NY2d 845; Matter of Ryan, 34 AD3d 212; Matter of Seelig, 13 AD3d 776). At most, objectant establishes that petitioner and his family had provided support to decedent after her husband's death in late December of 2011, but that objectant and her family had little interaction with decedent during the same period of time. Such proof falls woefully short of a prima facie showing of undue influence.

Finally, objectant submits uncertified copies of checks showing that David used the POA for a year prior to the decedent's death in order to make gifts to himself and his family and to pay some of his own expenses; documents objectant claims demonstrate that petitioner was involved in the removal of objectant as a co-beneficiary on ITF bank accounts leaving him as the sole beneficiary; and a letter petitioner sent to objectant following the decedent's death, the contents of which provided her with the "knowledge" of the undue influence and fraud David practiced upon the decedent.

Addressing these arguments in turn, the copies of uncertified checks where petitioner is alleged to have utilized the POA are inadmissible, but even if the Court were to consider them, they collectively show that David and his family derived a financial benefit beginning two years following the will's execution and are not probative of undue influence in the creation of the instrument.

The documents that objectant offers to support her claim that petitioner removed her from ITF bank accounts include what appears to be a self-serving document prepared by objectant listing such accounts along with an uncertified copy of an ITF bank book showing her name crossed out in 2011. Again, the copy of the uncertified bank book is inadmissible but even if the Court were to consider such document, it demonstrates the change to the account was made without the use of a POA,( as one did not exist in 2011), apparently over a year prior to the will's execution. Such an act hardly can be found to be legally sufficient proof of undue influence by petitioner.

Finally, the letter objectant received from petitioner following decedent's death show's petitioner's feelings of contempt towards the decedent and objectant over the years, his belief that he and his family deserve what the decedent left them and his beliefs about the family dynamics. These statements apparently lead objectant to surmise that petitioner must have unduly influenced decedent to disinherit her, a position the Court can not adopt on such proof.

Furthermore, in all of the above scenarios objectant does not submit any evidence from disinterested witnesses to corroborate her claim of undue influence relating to such transactions.

Viewing the evidence in the light supporting the objectant, and even assuming the proof establishes petitioner had a motive and opportunity to exert undue influence over the decedent, the fact that the above transactions took place, is not sufficient to raise a triable [*7]issue of fact as the record still does not contain evidence tending to show how undue influence was actually utilized by David in the drafting or execution of the instrument offered for probate. (see Matter of Walther, 6 NY2d 49, 55-56; Matter of Colverd, 52 AD3d 971; Matter of Chiurazzi, 296 AD2d 406, 407; Matter of Herman, 289 AD2d 239, 240; Matter of Bustanoby, 262 AD2d 407).

The evidence submitted also fails to establish any other hallmarks of undue influence, such as the deviation from a prior testamentary plan (see e.g. Matter of Kruszelnicki, 23 AD2d 622; Matter of Jacobs, 2015 NY Slip Op 31301 [U] [Sur Ct, Nassau County 2015]), or that David directed the testator to the person who drafted the will (see generally e.g. Matter of Elmore, 42 AD2d 240; Matter of Jacobson, 2013 NYLJ LEXIS 4543 [Sur Ct, Suffolk County]), or was involved in the drafting of its terms.

Objectant's reliance upon Matter of Rosen, 296 AD2d 504 for the proposition that events which occurred after the execution of a will are relevant in determining the issue of undue influence are misplaced. The facts in Rosen, demonstrate the nominated executor had already been involved with the decedent's financial affairs for a period of time prior to the will's execution and that the challenged instrument deviated from prior testamentary plans. Most importantly, in the case at bar, the post execution "facts" set forth in her papers do not establish, as a matter of law, actions upon which a trier of fact could find the existence of undue influence (see In re Henig 11 AD3d 614; cf. Matter of Greenberg, 34 AD3d 806).

Without the evidence to support a finding that decedent's actions were not anything but voluntary, objectant fails to demonstrate that an issue of fact exists with regard to the exercise of undue influence over the decedent in the creation and execution of the instrument (see Matter of Mole,113 AD3d 858; Matter of DiDomenico, 101 AD3d 998).

Based upon the foregoing, the branches of the motions for summary judgment to dismiss the objection based upon undue influence are granted.

As all the objections to the proffered instrument have been dismissed, and as the subject instrument was duly executed in conformity with the requirements for a will pursuant to EPTL §3-2.1 and the decedent was in all respects competent to make a will and free of restraint, the instrument dated January 29, 2013 is admitted to probate as decedent's last will and testament and letters testamentary shall issue to petitioner upon his dulyqualifying.

Settle order and decree.

Dated: October 3, 2018

________________________

SURROGATE Footnotes

Footnote 1:The neurologist found her MRI to be unremarkable, indicated that his impression was that decedent had mild dementia and referred her to a psychiatrist/psychologist.