Matter of Sook Li

[*1] Matter of Sook Li 2021 NY Slip Op 21193 Decided on July 20, 2021 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 subject to revision before publication in the printed Official Reports.

Decided on July 20, 2021
Surrogate's Court, Queens County

In the Matter of the Probate Proceeding, Will of Sook Li a/k/a Sook Jing Li, Deceased.



2018-3288



Attorney for petitioners:

Andrew K. Brotmann, Esq.

The Brotmann Law Group

2 Westchester Park Drive, Suite 108

White Plains, NY 10604

(914) 694-6200

Attorney for objectant:

Supriya Kichloo, Esq.

Gordon & Gordon PC

108-18 Queens Blvd., 6th Floor

Queens, NY 11375

(718) 544-7070
Peter J. Kelly, S.

In this contested probate proceeding, objectant, Suey Quon Li (Suey), moves for summary judgment dismissing the petition and denying probate of the propounded instrument. Petitioners, Sau Kwan Li (Sau) and Jin Koon Li (Jin), oppose the motion and cross move for summary judgment dismissing the objections and admitting the instrument to probate

Decedent, Sook Li, also known as Sook Jing Li, died on October 4, 2017 at the age of 89 years. She was survived by her three children: son Jin, and daughters Sau and Suey.

The instrument offered for probate was executed on February 8, 2013, when the decedent was 84 years of age. The instrument was prepared by an attorney, (AS), who also supervised its execution. The three page instrument bears what purports to be the decedent's signature at the end and the initials SL on each page. There is an attestation clause and the signatures of two witnesses, namely, the drafter's father, attorney (RS), who was a partner in the office, and the office receptionist. Annexed to the instrument is a self-proving affidavit of the two witnesses dated the same day and notarized by AS.

Pursuant to the instrument, Jin and Suey are each bequeathed the sum of one thousand dollars ($1,000.00), and the remainder of decedent's estate is devised and bequeathed to Sau, if she survives, otherwise to Jin's two sons. The instrument contains an in terrorem clause, as well [*2]as an acknowledgment of the unequal provisions for Jin and Suey, stating that they received material benefits during decedent's lifetime. Jin and Sau are nominated as co-executors.

The main asset of the estate appears to be a three family house in which all parties had resided with the decedent, and in which petitioners continue to reside.

The propounded instrument differs from an earlier purported will of the decedent dated seven years earlier in 2006, which AS also drafted and supervised. Pursuant to the provisions of that instrument, all three of the decedent's children are treated equally and are nominated as the executors. Of note, Sau is one of the two subscribing witnesses to that document.

The decedent appears to have executed an even earlier instrument in 1995, which was prepared and its execution supervised by an attorney from a firm not associated with AS or RS. That purported will differs from the later ones, in that in addition to its provisions for the decedent's present children, it provided for a trust and a continued residence for the needs of the decedent's fourth and youngest child, Wai Kwan, who was ill at the time, and who eventually predeceased the decedent. Of significance, the attestation clause and annexed affidavit of witnesses in this document indicate that the decedent declared the instrument as her will through one of the three witnesses who acted as an interpreter.

Examinations of attorney AS and the two attesting witnesses were conducted pursuant to SCPA 1404. Depositions of petitioners and objectant were also taken.

Pursuant to her verified objections, objectant alleges: (i) the February 8, 2013 paper writing is not decedent's last will; (ii) the paper writing was not duly executed; (iii) decedent lacked testamentary capacity at the time of execution; (iv) the paper writing is the product of undue influence; (v) the paper writing is the product of fraud; and (vi) the propounded instrument was subsequently revoked.

Petitioners and objectant each assert entitlement to summary judgment.

Summary judgment may be granted only when it is clear that no triable issue of fact exists (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Phillips v Joseph Kantor & Co., 31 NY2d 307, 311 [1972]; Mosheyev v Pilevsky, 283 AD2d 469 [2d Dept 2001]). The function of the court on a motion for summary judgment is not to resolve issues of fact or determine matters of credibility, but merely to determine whether such issues exist (see Ferrante v American Lung Ass'n., 90 NY2d 623, 631 [1997]; Owens v City of New York, 183 AD3d 903, 906 [2d Depart 2020]; Dykeman v Heht, 52 AD3d 767, 769 [2d Dept 2008]).

Notwithstanding the differing burdens of proof at trial, it is well settled that on a motion for summary judgment the proponent must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence any material issues of fact (see Alvarez v Prospect Hosp., 68 NY2d at 324; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). If the proponent makes out a prima facie showing, the burden of going forward shifts to the opponent to assemble and lay bare affirmative proof to establish the existence of a genuine triable issue of fact (see Jacobsen v New York City Health & Hosps. Corp., 22 NY3d 824, 833 [2014]; Stainless, Inc. v Employers Fire Ins. Co., 69 AD2d 27, 32 [1st Dept 1979], affd 49 NY2d 924 [1980]).

The papers submitted in support of and in opposition to the motion are scrutinized in a light most favorable to the party opposing the motion (see Lau v Margaret E. Pescatore Parking, Inc., 30 NY3d 1025, 1027 [2017]; Robinson v Strong Memorial Hosp., 98 AD2d 976 [4th Dept [*3]1983]; Gitlin v Chirinkin, 98 AD3d 561, 561-562 [2d Dept 2012]). If there is any doubt as to the existence of a triable issue of fact, the motion must be denied (see Fairlane Fin. Corp. v Longspaugh, 144 AD3d 858, 859 [2d Dept 2016]; Dykeman v Heht, 52 AD3d 767 at 769).

Objectant's motion for summary judgment is supported by affirmation of counsel and a Memorandum of Law; a copy of the propounded instrument; a copy of the objections; and the transcripts of the SCPA 1404 examinations of the drafting-supervising attorney and two attesting witnesses. The motion is also supported by various other exhibits, including email correspondence between AS and Sau; a check, dated February 8, 2013, by Sau payable to AS; medical records from Queens Blvd. Extended Care, Fairview Nursing Care Center and Dr. Edward Chai; and copies of prior wills dated May 10, 2006 and January 31, 1995.

The cross-motion is supported by affirmation of petitioners' counsel and a Memorandum of Law in Opposition to Motion for Summary Judgment and in Support of Cross-Motion for Summary Judgment; a copy of the purported will; the SCPA 1404 transcripts previously referenced, as well as the deposition transcripts of the testimony of the petitioners and objectant; the previously referenced email communication; progress notes from Weill Cornell Internal Medicine Associates; an unsworn letter dated May 21, 2013 by Judy Tung, MD; and an affidavit in support of the petition by Judy Tang, MD, dated April 23, 2019.

Also submitted is a Reply Memorandum in support of objectant's motion and in opposition to petitioners' cross-motion.

As to the use of the deposition testimony of the parties, to the extent they relate personal communications or transactions with decedent which would be precluded pursuant to CPLR 4519, they may not be used to support their respective motions for summary judgment. Such testimony may be utilized, however, to defeat a motion for summary judgment (see Phillips v Joseph Kantor & Co., 31 NY2d 307, 313-314 [1972]; Mantella v Mantella, 268 AD2d 852, 853 [3d Dept 2000]), and have been considered to that limited extent.

Initially it is noted that objectant only addresses the objections alleging the paper writing was not duly executed, the lack of testamentary capacity, and undue influence. With respect to the remaining objections, no evidence has been offered of a later instrument or that the propounded will was revoked, nor has objectant produced any evidence in support of the affirmative objection alleging fraud.[FN1] Having moved for summary judgment without presenting evidence supporting those objections, and upon searching the record, summary dismissal of those objections is warranted. Accordingly, objections First, Fifth and Sixth are dismissed.

On the issue of due execution, for a will to be duly executed, the requirements of the statute of wills as set forth in EPTL 3-2.1 must be satisfied. The instrument must be signed by the testator at the end; the testator must sign or acknowledge the signature in the presence of each of the attesting witnesses; the testator must declare to each attesting witness that the instrument is his/her will; there must be at least two attesting witnesses who, at the testator's request, sign their names and affix their addresses at the end of the instrument (see EPTL 3-2.1[a][1]-[4]; Matter of [*4]Walker, 124 AD3d 970, 971 [3d Dept 2015]).

Where an attorney-drafter supervises the execution of the instrument, there is a presumption of regularity that the instrument was properly executed in all respects (see Matter of Hadden, 188 AD3d 686, 687 [2d Dept 2020]; Matter of Farrell, 84 AD3d 1374 [2d Dept 2011]; Matter of Moskoff, 41 AD3d 481, 482 [2d Dept 2007]). A presumption of compliance with the statutory requirements also arises where the propounded instrument contains an attestation clause and self proving affidavit, even where the witnesses are unable to recollect the execution or what took place at the time (see Matter of Collins, 60 NY2d 466, 470 [1983]; Matter of Green, 89 AD3d 941, 943 [2d Dept 2011]; Matter of Finocchio, 270 AD2d 418, 418-419 [2d Dept 2000]).

Here the execution of the instrument was supervised by an attorney, it contains an attestation clause, and a self proving affidavit of the witnesses and transcripts of SCPA 1404 examinations have been submitted. Based on their contents petitioners have established a prima facie showing of due execution on their cross-motion for summary judgment dismissing the objection based on lack of due execution (see Matter of Sabatelli, 161 AD3d 872, 874 [2d Dept 2018]).

In opposition thereto, objectant contends that evidence submitted rebuts the aforesaid presumptions. She claims that the requirements of the statute were not met because the decedent did not declare to the two witnesses that the instrument she was signing was her will or request that they serve as witnesses, and because the decedent could not communicate understandably in English to know and approve the contents of the instrument she was signing as her will.

In support thereof, objectant first points to portions of the office receptionist's examination testimony given in 2019, stating that she did not remember her attendance at the decedent's will signing in 2013. The witness testified that typically she would be called into the office conference room for the will signing and introduced to the testator. Asked whether she would speak to the testator, or ask them any question, she answered "no". Specifically with respect to the instant execution ceremony, she was asked the questions, "Did Ms. Li ever ask you to be a witness to her will?" and "Did you ask her if she was signing—what she was signing was her will?," to which she also answered "no."

An attesting witness does not need to inquire directly of a testator as to the nature of the instrument being signed or ask any other questions of the testator. Nor need the testator speak expressly to the witness. While it is essential that the will be published, so as to make the intention known that the document is to serve as the testator's will, and that a request be made to serve as a witness to the will's execution, the testator need not do so personally; a third person in the presence of the testator may make the declaration and request on the testator's behalf (see Matter of Vickery, 167 AD2d 828 [4th Dept 1990]); Matter of Eckert, 93 Misc 2d 677, 679-680 [Sur Ct, NY County 1978], affd 70 AD2d 801 [1st Dept 1979]; see also Matter of Buckten, 178 AD2d 981, 981-982 [4th Dept 1991]). Usually it is the attorney who prepared the will and supervises its execution who makes the declaration and request, and that is sufficient (see Matter of Vickery, 167 AD2d 828 [4th Dept 1990]).

Although he supervised the instrument's execution, AS testified that he had no specific recollection of its execution. When also asked if the decedent spoke English, he answered, "I don't actually remember conversation. I can only guess that she did, because I was able to communicate with her. I don't have a specific recollection." However, counsel was not [*5]questioned as to whether he recalled publishing the will on the decedent's behalf or requesting the witnesses to sign, nor was he asked to describe his usual office practice for a will ceremony.

The other attesting witness, RS, who had supervised many will executions, also had no specific recollection of the instant execution ceremony, including the decedent's fluency in English. The witness did testify in general terms as to the practice of the law firm in the execution of wills, stating: "We come in, have them sign, we would ask them questions, is this your will, do you want us to act as witnesses, do you understand what is in there, they say yes and we all sign."

Emphasizing that the propounded instrument is written in English, and that no interpreter was provided at the will signing, objectant argues that the instrument could not have been duly executed by the decedent because she was unable to read, write, or speak English to the extent necessary to indicate that she understood the contents of what she was signing was her will.

In support of her contention, objectant points to 2009 and 2016 extended care and nursing facility records, which note that the decedent spoke "Chinese only" or "Cantonese," and that translators were employed to facilitate communication and to make her needs known.

Objectant asserts that the portion of the witness affidavit stating that the decedent "in their opinion, could read, write and converse in the English language" is contradicted by the petitioners' own testimony that the decedent could not read or write in English and, thus, could not have read the purported will. She argues that the witness affidavit submitted is, therefore, insufficient evidence to establish due execution.

There was also a sharp contrast between the testimony of the objectant and her sister as to the decedent's ability to speak English. Suey testified that the decedent could only speak a few words in English, such as "hello" and "bye." Sau, on the other hand, testified that the decedent understood "quite a bit of English," and "now and then" the decedent would have conversations with her in English while watching television at home together. However, asked if she knew whether the decedent understood English enough to execute legal documents, she answered that she didn't know for sure. Objectant also notes there is evidence from emails that indicates AS communicated with Sau regarding the terms of the proposed will instead of directly with the decedent.

A testator's lack of facility with the English language is not "an insuperable barrier" to a finding of due execution (see 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]). However, where a testator is not fluent in English, there is the possibility that the testator may not have known the contents of what was being signed, or understood the significance of what was transpiring at the time, and, therefore, there is a greater burden in establishing that the mind of the testator accompanied the act, and that the instrument executed speaks the testator's language and expresses the testator's will (Matter of Watson, 37 AD2d 897, 898 [3d Dept 1971]; Matter of Chin, 58 Misc 3d 1212 [A], *13 [Sur Ct, Queens County 2018]; Matter of Henig, 2001 NY Misc. LEXIS 1425, *8 [Sur Ct, Kings County 2001]).

The Court finds the specific evidence presented in this case, especially the documentary evidence from disinterested parties pertaining to the decedent's lack of facility with English, raises factual questions concerning the circumstances surrounding the execution of the instrument, as well as credibility issues, which may not be summarily determined.

Accordingly, as to the objection of lack of due execution, the motion and cross-motion for summary judgment are both denied.

Turning to the issue of capacity, to make a valid will, the testator must be at least eighteen years of age and "of sound mind and memory" (see EPTL 3-1.1). The capacity to execute a will is minimal, lower than that required to execute most other legal documents or contracts (Matter of Coddington, 281 AD 143, 146 [3d Dept 1952], affd 307 NY 181 [1954]; Matter of Safer, 19 AD2d 725, 726 [2d Dept 1963]). A testator possesses the requisite capacity to make a will if he or she understands in a general way the nature and consequences of making the will, knows the nature and extent of his or her property being disposed, and knows the natural objects of his or her bounty (see Matter of Kumstar, 66 NY2d 691, 692 [1985]; Matter of Sabatelli, 161 AD3d 872 at 874).

The question of testamentary capacity concerns a person's mental condition at the time of the execution of the will; evidence relating to the condition of the testator before or after the execution is only significant insofar as it bears upon the strength or weakness of the testator's mind at the exact hour of the day of execution (see Matter of Hedges, 100 AD2d 586, 588 [2d Dept 1984]). A testator needs only a lucid interval of capacity to execute a valid will, and this interval can even occur contemporaneously with an ongoing diagnosis of mental illness, including depression (see Matter of Esberg, 215 AD2d 655, 656 [2d Dept 1995]), or progressive dementia (see Matter of Friedman, 26 AD3d 723, 725 [3d Dept 2006]).

There is a general presumption that the testator possesses the capacity necessary to make a valid will until proven otherwise (Matter of Beneway, 272 AD 463, 467 [3d Dept 1947]). In the instant matter, in addition to this general presumption, there is the affidavit of the attesting witnesses which states that the testator, in their opinion, was "of sound mind and memory...not in any respect incompetent ... suffering from no defect of sight, hearing or speech or from any other physical or mental impairment that would affect her capacity to make a valid Will." This affidavit is prima facie evidence of the facts stated and creates a presumption of testamentary capacity (see Matter of Sabatelli, 161 AD3d at 874; Matter of Jacobs, 153 AD3d 622 [2d Dept 2017]). Furthermore, a presumption of testamentary capacity is also created when an attorney drafts the will and supervises its execution, as was done here (see Matter of Nofal, 35 AD3d 1132, 1134 [3d Dept 2006]).

Additionally, petitioners have submitted an affidavit of Dr. Tung in which she refers to the letter she wrote approximately three months after the execution of the subject instrument, containing an assessment of the decedent following a cognitive examination, repeating the conclusions stated therein that, although the decedent was physically frail at the time, her mental status was intact; she was competent to make medical, legal and financial decisions; and she had a sound mind.

Upon the forgoing, petitioners have made a prima facie showing of the decedent's testamentary capacity at the time of the instrument's execution.

In opposition to that showing, objectant focuses on evidence of the decedent's health, noting that at the time the purported will was executed the decedent suffered from several physical aliments and was dependent upon her children for her daily living activities such as eating, bathing, traveling to her medical appointments and the like. Objectant claims the decedent was suffering from Parkinson's disease and progressive dementia at the time of the [*6]execution of the instrument. In support of this contention objectant submits the 2015 progress notes of the decedent's neurologist/psychiatrist, Dr. Edward Chai, some two years after the purported will, wherein it is noted by the doctor under Neurologic History, "I saw her in 2012 for PD which had been undiagnosed for many years," and further noted, "Dementia is getting worse."

Proof that the decedent suffered from old age, physical weakness or infirmity, and even progressive dementia, is not necessarily inconsistent with testamentary capacity and alone does preclude a finding thereof (see Children's Aid Soc. v Loveridge, 70 NY 387 [1877]; Matter of Williams, 13 AD3d 954, 957 [3d Dept 2004]; Matter of Beneway, 272 AD at 467). Although Dr. Chai's progress notes indicate that the decedent had undiagnosed Parkinson's disease for years prior to 2012 and that her condition had worsened by 2015, there is nothing in his notes to indicate that the decedent was not rational, lucid or competent at the time the purported will was executed.

Objectant also points out that prior to drafting the purported will, AS himself raised the question as to the decedent's capacity, noting to Sau that since the decedent was suffering from Parkinson's disease, the decedent "must be of the necessary sound mind to understand her will when executing it." While AS was aware of the decedent's Parkinson's disease, he testified that his concern regarding the decedent's capacity was satisfactorily resolved.

Given the above facts, the Court finds the evidence submitted by objectant is insufficient to raise an issue of fact as to testamentary capacity.

Accordingly, with respect to the objection of lack of testamentary capacity, the motion is denied and the cross-motion for summary judgment dismissing the objection is granted.

Addressing the objection of undue influence, at the time a will is executed, the testator must be free of any restraint, including undue influence (see Matter of Panek, 237 AD2d 82, 83 [4th Dept 1997]).

While there is no question that a will may not be admitted to probate if it is the product of undue influence (see Matter of Nofal, 35 AD3d at 1134), a showing of mere persuasion is insufficient to deny probate to a will. For the purported will to be denied probate based on undue influence, it must be shown that the instrument resulted from influence amounting to a moral coercion, which restrained independent action and destroyed free agency, or which, by importunity which could not be resisted, constrained the decedent to do that which was against her free will and desire, but which 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 (see Matter of Walther, 6 NY2d 49, 53 [1959]; see Matter of Cianci, 165 AD3d 655, 657 [2d Dept 2018]). The elements of undue influence are motive, opportunity and the actual exercise of undue influence ( Matter of Walther, 6 NY2d at 55; Matter of Fiumara, 47 NY2d 845, 846 [1979]).

Since undue influence is seldom practiced openly and direct proof is rarely available, it may be proven by circumstantial evidence, provided it is substantial in nature (Matter of Favaloro, 94 AD3d 989, 992 [2d Dept 2012]; see Matter of Walther, 6 NY2d at 54). Undue influence can be shown by all the facts and circumstances surrounding the testator, such as, the nature of the will, the testator's family relations, the condition of the testator's health and mind, the testator's dependency upon and subjection to the control of the person alleged to have exerted [*7]the influence, the opportunity and disposition of the person to wield it, and the acts and declarations of that person (see Rollwagen v Rollwagen, 63 NY 504, 519 [1876]; Matter of Anna, 248 NY 421, 424 [1928]; see also Matter of Bach, 133 AD2d 455, 456 [2d Dept 1987]).

In support of their cross-motion for summary judgment, petitioners have submitted the affidavit of the subscribing witnesses annexed to the purported will wherein it is stated that the decedent at the time of its execution was "not under any restraint." Thus, petitioners have established prima facie the lack of undue influence on their cross-motion (see Matter of DiDomenico, 101 AD3d 998, 1000 [2d Dept 2012]; Matter of Rottkamp, 95 AD3d 1338, 1340 [2d Dept 2012]).

Objectant asserts in opposition that the evidence demonstrates that when the purported will was procured, the decedent was in a frail and weakened condition, living with the petitioners, and dependent upon them for her daily needs, thus putting them in a position of trust and complete influence over the decedent. Objectant also avers that Sau handled all of the decedent's financial matters.

She also asserts that other circumstances, such as Sau's intimate involvement with the instructions given to AS concerning the terms of the will, the presence of petitioners during the instrument's execution, as well as the payment of the attorney's fee by Sau, are further factors from which an inference of the exercise of undue influence may be drawn. Additionally, objectant notes the deviation in the decedent's prior testamentary plan from providing for her three children equally to virtually disinheriting one daughter in favor of the other, and alleges that the petitioners never made her aware of the existence of the purported will; that she only learned of it some time later by chance through Jin's spouse. Sau's excessive involvement in the drafting process is also highlighted, and documented according to objectant, by counsel's previously mentioned email correspondence in reference to the decedent's Parkinson's condition where it is stated, ". . . This could certainly open up the possibility of a will challenge from your sister in the future. We can discuss this further if you like."

The petitioners in response assert that the change in the decedent's testamentary plan was the result of the decedent's often expressed displeasure with the disproportionate degree of care and assistance she was receiving from the objectant in relation to that provided by her sister. Given this assertion, the nature of the decedent's dependency and the extent of care and assistance provided by each of the parties are factors also to be considered in addressing the claim of undue influence. The testimony given by the parties, however, presents conflicting evidence as to what care, and the extent thereof, each of the parties provided to the decedent prior to the execution of the propounded will, as well as the degree of financial assistance the decedent received from each them.

This conflicting evidence, as well as the issues raised concerning the circumstances attending decedent's execution of the instrument, and Sau's direct involvement with the attorney in the preparation of the propounded will that benefits her, creates an inference not only of the existence of motive and opportunity, but also the potential exercise of undue influence in the procurement of the propounded will, which "merit[s] the careful scrutiny that can only be obtained by a full airing of the matter before the trier of fact" (see Matter of Paigo, 53 AD3d 836, 840-841 [3d Dept 2008]; Matter of Elmore, 42 AD2d 240, 241-242 [3d Dept 1973]), Matter of Ramirez, 68 Misc 3d 1207[A] [Sur Ct, Queens County 2020]).

Accordingly, as to the objection that the propounded instrument is the product of undue influence, both the motion and cross-motion for summary judgment are denied.

This matter shall be set down for a final pretrial conference on a date to be set in the order to be entered hereon.

This is the decision of the Court.

Settle order.

Dated: July 20, 2021

HON. PETER J. KELLY

SURROGATE Footnotes

Footnote 1:To the extent the objection alleging the paper writing is not decedent's last will applies to the instrument's genuineness, it is subsumed within the objection of lack of due execution and need not be stated as a separate matter.