Opinion
No. 2009–1696/A.
2012-07-19
In the Matter of the ESTATE OF Dean Monroe BUTLER, Deceased.
George Mitris, Esq., Victor, former attorney for the estate. Robert Wood, Esq., Rochester, attorney for the estate.
George Mitris, Esq., Victor, former attorney for the estate. Robert Wood, Esq., Rochester, attorney for the estate.
George D. DeLucia, Esq., Rochester, attorney for Gary Butler, petitioner/objectant.
James G. Vazzana, Esq., Weidman, Vazzana, Corcoran & Volta, P.C., Rochester, trial counsel for Gary Butler, petitioner/objectant.
EDMUND A. CALVARUSO, J.
FACTS
Dean Butler died on April 28, 2009 survived by one son, Gary Butler, and two grandchildren, Deanna Butler Crosser and Deane Butler. On July 22, 2009, Gary Butler (“Objectant”), represented by attorney James Vazzana, filed a Petition to Compel Production of a Will alleging that attorney George Mitris was in possession of the Decedent's Last Will and Testament. The Will was subsequently filed by Mr. Mitris on September 16, 2009 as part of a Petition for Probate by his client, Betty Sussman, a friend of the Decedent and nominated Executor. The Will, dated November 17, 2006, left $5,000.00 to Gary Butler in trust, and $1,000.00 to his “granddaughter Deanna Butler,” with the residuary to Ms. Sussman. Despite the Decedent's granddaughter being specifically listed in the Will, the Petition for Probate indicated only one distributee, Gary Butler. The Decedent's Estate consisted solely of his residence, valued at approximately $65,000.00 and assorted personal property and small accounts.
On October 29, 2009, Mr. Vazzana, made Mr. Mitris aware of the existence and location of Deanna Butler Crosser and Deane Butler, children of a predeceased son of the Decedent. In that and extensive subsequent correspondence, Mr. Vazzana requested that Mr. Mitris amend the Petition for Probate to reflect the two additional distributees.
Having no response from Mr. Mitris, on April 7, 2010, Mr. Vazzana, filed a Petition for Letters of Administration, on behalf of Gary Butler, with the consent of Deanna Crosser and Deane Butler. The requested amended Probate Petition was ultimately filed by Mr. Mitris on April 28, 2010 reflecting the correct distributees. At the Court date for these cross-petitions on May 11, 2010, Mr. Vazzana, on behalf of Gary Butler, requested a hearing pursuant to SCPA 1404. The hearing was held on June 8, 2010 during which Gregory Lomb, Esq. and Marta Lynn Lomb, witnesses to the proffered November 17, 2006 Will, were examined.
During the hearing, testimony was adduced indicating that Betty Sussman arranged for and accompanied the Decedent to his appointments with Mr. Lomb to draft and execute the November 17, 2006 Will, but the Decedent paid for the services himself, and all discussions were directed to the Decedent. Mr. Lomb testified that Ms. Sussman was his neighbor and former client, and it was on her recommendation that the Decedent had hired him. Mr. Lomb met with the Decedent three times to discuss and execute his will, and believed the Decedent to possess the requisite testamentary capacity on the date the Will was executed. The Decedent allegedly understood and that he was all but disinheriting his son, Gary Butler, and his grandson, Deane R. Butler. The other witness, Marta Lomb, testified that while she is not a lawyer, during will execution ceremonies, she is careful to observe the will execution formalities. She also testified that she always independently ascertained if a testator possessed the requisite competence or seemed under any duress, and never witnessed a will that she did not believe to be valid for these reasons.
On July 2, 2010, Gary Butler filed Objections to Probate alleging that the Will lacked due execution, that the Decedent lacked testamentary capacity following his wife's death on June 14, 2006, and that the Will was the product of the undue influence of Betty Sussman. On April 6, 2011, Ms. Sussman filed a response stating that while she did transport the Decedent to appointments with attorneys during which the Decedent named her attorney-in-fact, health care proxy, and residuary beneficiary and executor of his Will, she did not influence him in any way. On July 5, 2011, Ms. Sussman filed another Reply Affidavit refuting some factual claims made in prior court filings by Gary Butler, and again stating that she was not involved in the Decedent's conversations with Mr. Lomb. The parties thereafter attempted settlement and in a Court conference reached a temporary arrangement allowing for Gary Butler's continued occupation of the Decedent's house, where he had resided prior to the Decedent's death. Thereafter, Mr. Mitris indicated informally to the Court that he was no longer serving as Estate attorney, and had been replaced by Robert Wood, Esq., but no formal substitution has yet been filed, and no additional post-objection discovery or motions have occurred. Due to continued animosity between the parties and concerns regarding the dissipation of Estate assets, Court resolution is now necessary.
Based on the testimony at the hearing and the parties' filings, it is undisputed that following the death of his wife on June 14, 2006, the Decedent experienced psychiatric distress and was hospitalized at the Unity Psychiatric Center for a period of time. It is also undisputed that the Decedent had known Ms. Sussman for more than twenty years and on at least one occasion they had spent holidays together. Ms. Sussman had been the hairdresser and friend of the Decedent's late wife.
The disputed November 17, 2006 Will replaced a prior will, dated November 15, 2005, in which the Decedent left nearly his entire estate to his wife, and named her executor. In the event his spouse did not survive him, the will provided that the bulk of his estate go to Gary Butler, in trust, and named Betty Sussman the executor, and Allen Sussman, Ms. Sussman's husband, the trustee. Upon Gary Butler's death, the will provided that the remaining funds of the trust be paid to Betty Sussman.
OPINION
A. Due Execution
The proponent of a will has the burden of proving that the propounded instrument was duly executed in conformance with the statutory requirements. EPTL 3–2.1(a); Matter of Collins, 60 N.Y.2d 466, 468, 470 N.Y.S.2d 338 (1983); Matter of Rosen, 291 A.D.2d 562, 737 N.Y.S.2d 656 (2d Dep't 2002). Mr. Lomb, the attorney-drafts person of the proffered Will, supervised its execution, and testified credibly to his compliance with the statutory requirements. This creates a presumption that the Will was properly executed. Matter of James, 17 AD3d 366, 792 N.Y.S.2d 601 (2d Dep't 2005). The testimony of the second witness, Marta Lomb, provides further evidence that the statutory requirements were complied with. In her testimony, Marta Lomb acknowledged that her recall of the execution ceremony was not perfect. However, this alone does not prevent an otherwise valid will from being admitted to probate. Matter of Collins, 60 N.Y.2d 466, 458 N.E.2d (1983). The presumption in favor of due execution has not been overcome by the Objectant, and therefore this objection must be dismissed. B. Testamentary Capacity
The proponent of a will has the burden of proving testamentary capacity at the time the will was executed. However, “less capacity is required to enable one to make a will than to make other contracts.” Matter of Coddington, 281 A.D. 143, 146, 118 N.Y.S.2d 525, 528 (3d Dep't 1952), aff'd 307 N.Y.191 (1954). Once a decedent's testamentary capacity is challenged, the proponent of the will must demonstrate only that the decedent, “understood (1) the nature and consequences of executing a will, (2) the nature and extent of his property, and (3) the natural objects of his bounty and the relationship to them.” Matter of Castiglione, 40 AD3d 1227, 837 N.Y.S.2d 360 (3d Dep't 2007); Matter of Ruparshek, A36 AD3d 998, 828 N.Y.S.2d 623 (3d Dep't 2007); Matter of Roberts, 246 A.D. 87, 283 N.Y.S. 50 (4th Dep't 1935); see also Matter of Kumstar, 66 N.Y.2d 691, 692 (1985); Matter of Delmar, 243 N.Y. 7 (1926).
While there is evidence that the Decedent suffered from psychiatric distress following the death of his wife, there is no evidence that he lacked the requisite testamentary capacity at the time of the drafting or execution of the November 17, 2006 Will. The fact that the Decedent sought out psychiatric care, or even allegedly attempted suicide does not give rise to an inference of a lack of testamentary capacity. See, e.g., Matter of Hatzistefanou, 77 Misc.2d 594, 354 N.Y.S.2d 553 (Surr. Ct. N.Y. Co.1974); citing Roche v. Nason, 185 N.Y. 128 (1906).
Further, a testator must only experience a “lucid interval” of adequate capacity to execute a valid will, and that interval can occur contemporaneously with a diagnosis of an altered mental state. Matter of Petix, 15 Misc.3d 1140(A), 841 N.Y.S.2d 822 (Surr. Ct. Monroe Co.2007); Matter of McCloskey, 307 A.D.2d 737, 738 (4th Dep't 2003). Circumstantial evidence of a testator's medical condition during the general time period in which the will was executed is insufficient to deny probate. See, e.g. Matter of Brownstone, 289 A.D.2d 97, 735 N.Y.S.2d 78(1st Dep't 2001); Matter of McCloskey, 307 A.D.2d 737, 763 N.Y.S.2d 187 (4th Dep't 2002). Accordingly, without further proof, this objection to Probate may not be granted. C. Undue Influence
While a testator's disability is not necessarily inconsistent with testamentary capacity, it can be an important consideration on the issue of whether undue influence was exercised due to the increased possibility that the testator would be susceptible to the whims of others. Undue influence has been defined by the Court of Appeals as influence exercised amounting “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 N.Y.2d 49, 188 N.Y.S.2d 168, 172 (1959); see also, Matter of Bush, 85 A.D.2d 887, 888, 446 N.Y.S.2d 759, 761 (4th Dep't 1981). “Undue influence is seldom practiced openly, but it is, rather, the product of persistent and subtle suggestion imposed upon a weaker mind and calculated, by the exploitation of a relationship of trust and confidence, to overwhelm the victim's will.” Matter of Burke, 82 A.D.2d 260, 269, 441 N.Y.S.2d 542, 546 (2d Dep't 1981).
Evidence of opportunity and motive are not sufficient without evidence that such influence was actually exercised. Matter of Bush, 85 A.D.2d 887, 889, 446 N.Y.S.2d 759, 761 (4th Dep't 1981); Matter of Fiumara. 47 N.Y.2d 845, 418 N.Y.S.2d 579 (1979); Matter of Mildred M.J., 43 AD3d 1391, 1392, 844 N.Y.S.2d 539, 542 (4th Dep't 2007); Matter of Vukich, 53 A.D.2d 1029, 1030, 385 N.Y.S.2d 905 (4th Dep't 1976), aff'd., 43 N.Y.2d 668 (1976). However, circumstantial evidence can be used to find that undue influence was exercised. See, e.g. Matter of Brandon, 79 A.D.2d 246, 436 N.Y.S.2d 329 (2d Dep't 1981); Matter of Collins, 124 A.D.2d 48, 54, 510 N.Y.S.2d 940, 944 (4th Dep't 1987); Matter of Anna, 248 N.Y. 421 (1928). Case law has established that circumstances giving rise to a finding of undue influence include the person charged with undue influence participating in the preparation and execution of a will, directing the testator to an attorney of beneficiary's choice, and driving the testator to the attorney's office. See, e.g. Matter of Kryk, 18 Misc.3d 1105(A), 2007 N.Y. Slip Op 52414(U) (Surr. Ct. Monroe Co.2007); Matter of Neary, 44 AD3d 949, 843 N.Y.S.2d 689 (2d Dep't 2007).
While the initial burden to prove undue influence is on the party seeking to invalidate the Will, if it is shown that a confidential relationship existed between the testator and beneficiary, the burden shifts to the beneficiary to establish that the will's execution was “fair and free from undue influence.” Matter of Mildred M.J., 43 AD3d 1391, 844 N.Y.S.2d 539 (4th Dep't 2007); Matter of Ruef, 180 A.D. 203, 167 N.Y.S. 498 (2d Dep't 1917), aff'd,223 N.Y. 582 (1917).
Ms. Sussman was the Decedent's attorney in fact and arranged for the Decedent to meet with Mr. Lomb, who had previously represented her. She transported the Decedent to Mr. Lomb's office, and was present during Mr. Lomb's three relatively brief meetings with the Decedent, including the execution ceremony. Further, Mr. Lomb sent the draft copy of the Will to Ms. Sussman for review prior to the day of execution. While it is reasonable that the Decedent would wish to update his will following the death of his wife, the testamentary scheme established in the November 17, 2006 Will is a marked departure from his prior will, and disinherits his only child, who he was in frequent contact with. The circumstances of the new Will's drafting and execution, coupled with the Decedent's indisputably fragile mental and physical condition, give rise to this Court's conclusion that undue influence may have been exercised by Ms. Sussman. Accordingly, this Objection must be preserved for further examination and discovery, particularly as to the nature of the relationship between Ms. Sussman and the Decedent.
Therefore, in accordance with the above decision, it is hereby
ORDERED, ADJUDGED and DECREED, that the Objection to Probate due to lack of due execution is hereby dismissed; and it is further
ORDERED, ADJUDGED and DECREED, that the Objections to Probate due to the lack of testamentary capacity and the exercise of undue influence are preserved for further examination; and it is further
ORDERED, ADJUDGED and DECREED, that a substitution of attorney, be filed by counsel for the Estate, or if no substitution is intended, correspondence to that effect, within 14 days of this Decision; and it is further
ORDERED, ADJUDGED and DECREED, that counsel is hereby directed to appear for a pre-trial conference on ___________ at _________________.