Opinion
No. 2009–3895.
2011-07-6
In the Matter of the ESTATE OF Helen WERNER, Deceased.
Miskell & Moxham, Allen D. Miskell, Esq., of Counsel, Peter J. Brevorka, Esq., and Jillian E. Brevorka, Esq., of Counsel to Allen D. Miskell, Esq., Sakowski & Markello, LLP, Attorneys for the Estate. Joseph A. Sakowski, Esq., of Counsel, Howard B. Frank, Esq., Guardian ad Litem for Infant, Victoria L. D'Angelo, Esq., Guardian ad Litem for Michael Dudek, Attorneys for Edward Dudek.
Miskell & Moxham, Allen D. Miskell, Esq., of Counsel, Peter J. Brevorka, Esq., and Jillian E. Brevorka, Esq., of Counsel to Allen D. Miskell, Esq., Sakowski & Markello, LLP, Attorneys for the Estate. Joseph A. Sakowski, Esq., of Counsel, Howard B. Frank, Esq., Guardian ad Litem for Infant, Victoria L. D'Angelo, Esq., Guardian ad Litem for Michael Dudek, Attorneys for Edward Dudek.
BARBARA HOWE, J.
Decedent died on July 9, 2009, leaving a probate estate worth slightly in excess of one million dollars. She had been married to George Werner, who predeceased her on February 1, 1999. Decedent was survived by three biological brothers, Edward Dudek, Stanley Dudek, and Chester Dudek, and one adopted brother, Stephen Dudek. Decedent was also survived by children
One of those children, Michael Dudek, is an adult under a disability, for whom this Court has appointed a guardian ad litem.
Decedent's Last Will and Testament, dated July 2, 2009, left bequests to her neighbors James Conniff [hereafter, Conniff] and his wife, Nancy [$100,000], Kelly Szczepanski [$55,000], Amanda Szczepanski [$55,000], and Gabrielle Spross [$55,000], and to her brother Stephen [$25,000 “to STEPHEN DUDEK, who is the adopted son of my mother and father”]. The residuary estate was left in equal shares to the five listed neighbors. Conniff has offered the July 2, 2009 Will, which named him fiduciary of the estate, for probate. On October 21, 2009, this Court granted preliminary letters to Conniff.
Objections to probate were filed by Edward Dudek [hereafter, Dudek].
Dudek alleges that decedent lacked testamentary capacity, including that “she did not know the nature and extent of her property nor the natural objects of her bounty, next of kin or distributees.” Dudek further alleges that the subscription and publication of the Will was procured by duress, undue influence, and fraud practiced upon decedent by Conniff. In the alternative, Dudek alleges (a) that the Will was not duly executed and that decedent's signature was forged, (b) that the attorney-draftsperson, Allen D. Miskell, Esq., misinterpreted decedent's instructions in drafting the Will, and (c) that decedent executed the instrument by mistake.
Waivers and consents to probate have been filed by Stanley Dudek, Stephen Dudek and Robert Dudek (one of the children of decedent's predeceased brother Raymond).
Dudek has testified as to why he has filed objections to decedent's Will:
“Q. So, you, aside from Sue who moved to Cincinnati and perhaps Chester and Steven and a couple of churches, was there anyone else she should have left money to in your opinion?
A. Not offhand.
Q. And you said you did not think really that she should have left money to you?
A. I didn't really care. There were those other things I was more concerned about or rectifying those things that-her misdeeds she had done in the past.
Q. I see. So, if she should not have left money to you, why are you objecting to the probate of the will?
A. I just mentioned to you that there were the numbers of misdeeds. I didn't know about the-there was the problem of the eviction of Steven out of a house that my mother had purchased that he was supposed to live in and he was supposed to have income off that house and George and Helen had evicted him. There was the money that was taken away from the displaced individuals' premiums for their insurance policies and they wouldn't prosecute Helen because the organization was based in Scranton and to have someone up here would be too costly, so there was that.
The house on Lyman Street that Steven had up until after mother's death, Helen and George ousted him out, trashing even the house—that place over in Arizona, Stan and Bunny's place, that should have been taken care of by them. I mean, she—if she had the money, then she could have been taken care of that and not let it go.
Q. So, are you saying if you're successful and you inherit money from your estate, you're going to give it to all these people?
A. Yes.” (emphasis added)
Extensive discovery has taken place among the parties, including SCPA 1404 examinations and other depositions. Pending now before me is a motion by the estate for summary judgment, seeking dismissal of the objections and probate of the July 2, 2009 Will. The guardian ad litem for an infant beneficiary of the Will has joined in the estate's motion. Dudek opposes the motion, and the guardian ad litem for Michael Dudek has joined his opposition.
They contend that there are material issues of fact which require a trial.
Dudek and the guardian ad litem for Michael Dudek will be referred to collectively hereafter as “objectants”.
(I)
Before admitting a Will to probate, a Court must inquire particularly into all the facts and must be satisfied with the genuineness of the Will and the validity of its execution (see, SCPA 1408[1] ). The proponent of a Will must establish that it was duly executed pursuant to EPTL 3–2.1. A testator must sign the Will at its end (EPTL 3–2.1[a][1] ), and must either sign in the presence of at least two attesting witnesses, or acknowledge her signature to each attesting witness separately (EPTL 3–2.1[a][2] and [4] ). And, generally, the testator must declare at some time during the execution ceremony that the instrument signed is her Will (EPTL 3–2.1[a][3] ).
The legal standards for deciding a motion such as that pending before me are clear. Procedurally:
“Summary judgment may be granted only where it is clear that no triable issue of material fact exists ( see, e.g. Alvarez v. Prospect Hosp., 68 N.Y.2d 320 [1986];Phillips v. Joseph Kantor & Co., 31 N.Y.2d 307 [1972].The traditional reluctance to grant summary judgment in probate proceedings has long since passed, and it is now recognized that [a]lthough summary judgment must be exercised cautiously, it is proper in a contested probate proceeding where the proponent submits a prima facie case for probate and the objectant fails to raise any genuine factual issues' (Matter of Minervini, 297 A.D.2d 423, 424 [2002];Matter of Coniglio, 242 A.D.2d 901 [1997] ). Indeed, it is also clear that summary judgment may be granted even where such proceedings involve issues of a fact-sensitive nature, such as fraud and undue influence ( see, e.g., Matter of Neuman, 14 AD3d 567 [2005];Matter of Goldberg, 180 A.D.2d 528 [1992] ).
To defeat a motion for summary judgment, the opponent must assemble and lay bare affirmative proof to demonstrate the existence of a genuine triable issue of fact (Stainless, Inc. v. Employers Fire Ins. Co., 69 A.D.2d 27 [1979],affd49 N.Y.2d 924 [1980] ).Allegations must be specific and detailed, substantiated by evidence in the record; mere conclusory assertions will not suffice ( Matter of Newman, 14AD 3d 567 [2005] ). Moreover, the court is required to search the record when it is engaged in the process of issue finding (Fullan v. 142 E. 27th St. Assocs., 1 NY3d 211 [2004];Insurance A.G. v. Moor–Jankowski, 77 N.Y.2d 235 [1991] )” ( Matter of Zirinsky, 10 Misc.3d 1052A [2005], emphasis added, affd43 AD3d 946 [2007];see also Matter of Colverd, 52 AD3d 971 [2008],Matter of Ryan, 34 AD3d 212 [2006], and Matter of Kubecka, 15 Misc.3d 1129A [2007] ).
A court may grant probate when it is satisfied that the Will is valid. Where it appears “that the will was duly executed and that the testator at the time of executing it was in all respects competent to make a will and not under restraint it must be admitted to probate” (SCPA 1408[2], emphasis added). The proponent of the Will bears the burden of proving due execution of the Will and testamentary capacity ( see e.g., Matter of Kumstar, 66 N.Y.2d 691, 692 [1985] and Matter of Moser, 27 Misc.2d 415 [1961]; see, also, PJI 7:28), whereas the burden of proof on the issue of undue influence or fraud rests upon the party who asserts such claim ( see e.g., Matter of Walther, 6 N.Y.2d 49, 54 [1959] and Matter of Paigo, 53 AD3d 836, 839 [2008] ).
The issue at this juncture is whether the estate has established prima facie its entitlement to summary judgment admitting the Will to probate, and, if so, whether objectants have raised any material issues of fact which would require a trial (Matter of Pollock, 64 N.Y.2d 1156 [1985] ).
(II)
(a)
Decedent had lived alone on Dodge Road in Amherst, New York since her husband George passed away in 1999. Conniff and his wife Nancy moved from Long Island to the house next door to decedent on Dodge Road in April of 2005, purchasing the property from Gregory and Stephanie Spross. Conniff testified that he was first introduced to decedent by the real estate agent in 2005 and that his friendship with decedent developed over the years. When asked to describe the relationship between him and decedent, Conniff replied
“If I was going to the store, I'd ask her if she needed something. I'd mow her adjacent lawn in our backyard. We would say hi. She would come over for Christmas or Easter because she told us she had no family. That was it.”
He did not socialize with decedent or go out anywhere with her apart from the family gatherings for the holidays.
Kecia Kelly, a social worker at the Oakwood Health Facility, testified that decedent had told her she had not seen her family members in thirty years and that she did not have any living family members. Conniff, too, had testified that decedent had always told him she was by herself and did not have any family. Subsequent to her death, Conniff found a Polish Cadet Insurance Policy in decedent's home. The policy was written in Polish but had some family members' names on it, and Conniff gave the information to attorney Miskell.
On June 15, 2009, decedent executed a Power of Attorney [POA] granting Conniff the authority to assist decedent with her finances, mainly making deposits and writing checks to pay bills. In response to being asked why the POA was executed, Conniff explained that decedent had asked him to do some bank transactions for her because she could not leave the Oakwood facility where she was then residing .
Coniff had told her he would need legal authorization to do so, and he passed on her request for a POA to the facility's budget director. The budget director subsequently prepared and notarized a POA pursuant to a conversation involving decedent, Conniff, and the social director.
Decedent was admitted to the Oakwood facility in late May, 2009, suffering from heart and pulmonary disease.
In practice, decedent wrote and endorsed her own checks, and Conniff simply delivered them to the designated bank or recipient. The only time decedent did not sign her own name was when documents had to be signed at the bank in order to receive a certified check to pay off a mortgage in Arizona, and Conniff received authorization from decedent for the transactions he made on her behalf. Conniff never made credit card transactions for decedent, and he testified that he asked decedent before he paid any bills.
(b)
In 2007, decedent asked Conniff if he knew any attorneys and Conniff mentioned Allen Miskell. Conniff knew Miskell because Miskell had worked on the estates of his brother-in-law and his father. At decedent's request, Conniff made the initial contact with Miskell to ask if he would speak with decedent, but after that, Conniff testified, all conversations took place solely between Miskell and decedent. Decedent did not discuss her Will with Conniff, and he does not know why she disposed of her estate as she did.
Over time, Miskell was able to glean information about decedent's family situation. During his initial conferences with her in 2007, decedent told Miskell that she was estranged from her family and did not want her family to inherit any of her assets. In his notes from the phone conversation on January 30, 2007, Miskell had recorded that decedent had five brothers and had nieces and nephews from pre-deceased siblings, with whom there had been no contact for thirty years. Miskell noted that decedent was very hostile towards her family.
Decedent initially showed an interest in researching animal charities as possible beneficiaries of her estate. However, she later indicated to Miskell, during their first meeting at her home on February 4, 2007, that she had had second thoughts about leaving her estate to charities.
Miskell testified that he sent decedent a letter on May 16, 2007 and also a follow-up invoice on October 2, 2008. Miskell later learned decedent did not respond to those statements because she was upset with him for sending her a bill. However, on June 18, 2009, decedent initiated contacted again with Miskell, stating that she was ready to do her Will. She reiterated her desire to keep her relatives out of the Will.
Miskell met with decedent on June 24, 2009 at the Oakwood Health Facility. Conniff was there when Miskell arrived, but he then left. Miskell's notes indicate that, although decedent wanted Conniff to remain, he [Miskell] told her he would have to speak to her alone.
Decedent told Miskell that she had lost her enthusiasm for animal charities and instead wanted to make specific bequests to people who had “shown her kindness” in her life. Miskell recalled that decedent was disturbed by articles she had read which intimated that many charitable contributions were used to pay for administration costs or individuals' salaries.
During this June 24, 2009, meeting, Miskell requested a family history from decedent because she planned to leave nothing to her family. He told her that there is always a concern that someone will challenge a Will when relatives are precluded from sharing in a large estate. Decedent was not surprised by that concern, and she had previously told Miskell about a prior probate proceeding in which one of her siblings had challenged a Will. Decedent then gave Miskell more details about her family:
“Q. Show me, please.
A. On a note which I had marked 6/23 and then put a sticky on it, it said this was actually [Slip Op. 6]6/24, because I don't like to change my notes, I told Helen that I needed to take a history, a family history, both for purposes of probate and otherwise.
She indicated to me that she had a predeceased brother, Raymond Dudek. Raymond's Dudek's children were listed here. She had Richard, who was the next in line, Edward, who is still in Depew, Stanley, who is out in Arizona. Helen reported to me that she was fifth in line. Chester, who is in Aurora.
And Stephen Dudek, who is still in Buffalo. Stephen she told me was her brother Raymond's son who was later adopted by Helen's parents.”
Decedent told Miskell about a family split which had occurred after her mother, Eva, passed away around 1976. Her brother Richard was living at her parents' house, as he had done his entire life, and he would not let decedent and her father visit one another. She had set up a bank account to help take care of her father, but she believed that Richard had used the money for himself. Decedent also spoke about a family meeting to which she was not invited, following which she was told that she had been “ousted from the family.” From that point on, the only contact she had with her family was at the occasional funeral.
Decedent further detailed her wish to leave family out of her Will and to appoint Conniff as executor. Decedent told Miskell she had known Conniff for about four years and that he was now handling her finances and running many errands for her. She indicated that she did not visit much with people as she was not a “phone person” or a “yakker”, and she had been able to function independently until just a few weeks before that. Miskell explained to decedent that naming Conniff as executor of her Will would give him the same powers after her death as the POA. In response, she stated that she wanted to make sure Conniff had the power to take care of her affairs after she died.
Decedent then told Miskell whom she wanted to include in her Will. She gave Miskell the names of two young ladies, Kelly and Amanda Szczepanksi, who were the daughters of her neighbors. She also referred to Gabrielle Spross, the two year old daughter of her former neighbors, Gregory and Stephanie Spross. She spoke about leaving $100,000 and her Hawaiian cocktail table to Conniff, and she named the four residuary beneficiaries as Kelly, Amanda, Gabrielle, and Conniff. Decedent later decided to leave $100,000 jointly to Coniff and his wife, Nancy, and to include Nancy as the fifth residuary beneficiary. After further consideration, decedent decided to leave a specific bequest of $25,000 to her brother, Stephen Dudek, because he had put a cemetery stone on her brother Richard's grave. She wanted to recognize his kindness with the bequest, but did not want him to share in her residuary estate.
Miskell testified that, as decedent was deciding how to divide up her estate, she had reviewed her HSBC and her Cadaret accounts.
During a phone conference on June 29, 2009, decedent told Miskell she did not want a memorial service or a notice of her death in the newspaper, and she wanted the University of Buffalo Medical School to receive her body immediately after death. There was no indication that she wanted her family notified.
Miskell drafted decedent's Will according to her instructions and took it to her at Oakwood on July 1, 2009. Miskell recalled that July 1 was also the day decedent was meeting with her financial advisor, Jim Perrone, to change the beneficiaries of her IRA account to reflect the same five residuary beneficiaries she had named in her Will.
Miskell did not expect that the Will would be signed on July 1 because decedent had indicated that she wanted to read it over before signing it, but he had Perrone's name typed in as a witness because he knew Perrone would be at Oakwood that day. After decedent read the Will on July 1, she directed Miskell to make certain changes. She also told him that she wanted to reflect on her decision and asked him to return another day. Miskell followed decedent's directions, redrafted the Will with her changes, and returned on July 2, 2009 for the execution of the Will.
The Cadaret IRA account, which is a non-probate asset according to the June 3, 2010 Inventory of Assets filed in this court, is valued at $1,583,658.82. The estate was the original beneficiary of the IRA account.
(III)
(a)
(i)
Objectants have alleged that:
“[T]he said written instrument was not duly executed by the said decedent, in that she did not sign the same at the end thereof, nor was such signature affixed by said decedent in the presence of each of the attesting witnesses, or acknowledged by her to have been so made to each of the witnesses, or did the said decedent declare the said instrument to be her Last Will, nor did at least two attesting witnesses each sign their name to said instrument as a witness at the end thereof, at the request of the said decedent.”
Decedent's July 2, 2009 Will was signed by decedent in an execution ceremony supervised by Miskell, her attorney, at the Oakwood Health Facility. The execution of the Will was witnessed by Miskell and another attorney, Scott Stopa. Each witness executed a detailed proof of will, and each testified at an SCPA 1404 examination.
Miskell had enlisted Stopa, who did not (and does not) work with Miskell, as a witness to the Will. Stopa testified that decedent signed the Will in his presence, and he testified that she acknowledged the instrument as her Last Will and Testament. Stopa also watched as decedent initialed every page of the Will. Miskell testified that decedent had signed first, followed by himself, and then Stopa signed.
Conniff was not present for the Will execution ceremony.
“Where, as here, the attorney-draftsperson supervised the will's execution, there was a presumption of regularity that the will was properly executed in all respects (see, Matter of Herman, 289 A.D.2d 239;Matter of Finocchio, 270 A.D.2d 418)” (Matter of James, 17 AD3d 366 [2005];see also Matter of Dane, 32 AD3d 1233 [2006] ). The 1404 testimony and the sworn detailed proofs of will satisfactorily establish that decedent's July 2, 2009 Will was duly executed (see, EPTL 3–2.1).
(ii)
Miskell's testimony that he presented a draft to decedent on July 1, and made further changes at her request, establishes that she had read and agreed with the contents of her Will. Further, on July 2, 2009, the day of the execution ceremony, Miskell went through every provision with decedent and she initialed a correction in her own handwriting where Miskell had inadvertently left out Nancy Conniff as a residuary beneficiary. These facts establish, contrary to objectants' unsupported claims, that decedent did not execute the Will “by mistake” and that Miskell did not prepare the Will “in contravention of decedent's instructions” or based on any misinterpretation of her wishes.
Miskell has been practicing law for thirty-four years and testified to having drafted between 2,000 and 3,000 Wills. He testified that he was satisfied the July 2, 2009 Will reflected all of decedent's intentions at the time she executed the Will.
Objectants have asserted that the Will executed on July 2, 2009 was “not to [decedent's] liking.” Miskell and Stopa both testified that, on the day of the Will execution, decedent requested one modification to her bequests: she wanted to include any unborn children of the Spross's in the bequest to their daughter, Gabrielle. Every other provision of the Will remained the same. Miskell testified that, even without her last requested change, decedent wanted to sign the Will presented on July 2, 2009, because she wanted to have a Will in place. Thus, after the Will was executed on July 2, 2009, Miskell redrafted the Will to include a class trust for future Spross children, and visited decedent's home
with Stopa on July 8, 2009. However, the Will was not executed that day because decedent could not physically affix her signature. Miskell testified that decedent was mentally coherent and understood why they were there, but “ultimately, she said, I can't do it, and I was not going to press her.”
The Oakwood discharge summary reflects that decedent had decided on June 24, 2009 “to go home with Hospice services” due to a “fail[ure] to progress” at Oakwood. Decedent did not actually leave Oakwood until July 7, 2009 because “it took some time for arrangements to be completed.”
I find that the substantive provisions of the July 2, 2009 Will were all in accordance with decedent's directions.
(iii)
Objectants also allege that decedent's signature on the July 2, 2009 Will is a forgery. This allegation rests upon a handwriting analysis done by Robert Baier, a forensic document examiner. After looking at several handwriting exemplars of decedent's,
Baier's believes that it is “highly probable” decedent did not sign the Will herself on July 2, 2009. In this context, Baier's report states that “highly probable” means “the evidence is very persuasive, yet some critical feature or quality is missing so that a definite identification is not in order; however, the examiner is virtually certain that the questioned and known writings [were not] written by the same individual.”
The exemplars range from April, 2008 to June, 2009.
Baier's qualified opinion evidence is flatly contradicted by the testimony and documentary evidence [proofs of will] from Miskell and Stopa. Both are attorneys licensed to practice in this State, and Stopa has no professional connection with Miskell's practice. Each has sworn under oath that decedent executed her Will in their presence on July 2, 2009.
The proofs of will executed by Miskell and Stopa are “prima facie evidence of the facts attested to ( see Matter of Paigo, 53 AD3d 836, 839 [2008];Matter of Friedman, 26 AD3d 723, 724–725 [2006],lv. denied7 NY3d 711 [2006] )” (Matter of Walker, 80 AD3d 865, 866 [2011] ). Those proofs attest that decedent executed her Will in their presence on July 2, 2009, and their 1404 testimony is to the same effect. Objectants have offered nothing to show, even colorably, why two attorneys would have each perjured themselves on at least two separate occasions, the finding of perjury being inescapably essential if Baier's qualified opinion had any merit.
In Matter of Slade, 106 A.D.2d 914, 915 [1984], our Appellate Division, in an analogous case, held that “where opinion testimony is contradicted by the facts, the facts must prevail ” (emphasis added). See also [Slip Op. 10]Grant–White v. Hornbarger, 12 AD3d 1066, 1067 [2004],Matter of Van Patten, 215 A.D.2d 947 [1995], and Matter of Eshaghian, 54 AD3d 860 [2008]. That is precisely the situation in this case, and I find that, in light of the uncontradicted facts concerning the July 2, 2009 Will execution ceremony, Baier's qualified opinion evidence is insufficient to raise a triable issue.
(b)
In Matter of Kumstar, supra, at 692, our Court of Appeals restated the familiar tests pertaining to the issue of testamentary capacity:
“It is the indisputable rule in a will contest that [the] proponent has the burden of proving that the testator possessed testamentary capacity and the court must look to the following factors: (1) whether she understood the nature and consequences of executing a will; (2) whether she knew the nature and extent of the property she was disposing of; and (3) whether she knew those who would be considered the natural objects of her bounty and her relations with them' (Matter of Slade, 106 A.D.2d 914, 915; see also, Matter of Delmar, 243 N.Y. 7)” ( see also, Matter of Williams, 13 AD3d 954, 955 [2004] and Matter of Hinman, 242 A.D.2d 900 [1997] ).
With regard specifically to the mental state of a testator at the time a Will is executed, the Court of Appeals, in Matter of Delmar, 243 N.Y. 7, 14 [1926], put the standard this way:
“What is meant by sound and disposing mind and memory?' The answer has been frequently given. The mind of testatrix as to its thinking and judging powers at the time of executing the instrument proposed for probate must be clear enough to be capable of interfering with the disposition of the estate by a prior will with some degree of judgment and discretion. The testatrix must retain sufficient active memory to collect in her mind without prompting the necessary elements of the business to be transacted and to hold them a sufficient length of time to understand their relations to each other and to form some rational judgment in relation to them. (Delafield v. Parish, 25 N.Y. 9, 44;Matter of Will of Snelling, 136 N.Y. 515;Matter of Heaton, 224 N.Y. 22, 29).”
The law is clear that a testator is presumed to be competent ( see Matter of Betz, 63 A.D.2d 769 [1978] ). Moreover, “less capacity is required to make a will than is required to execute other legal documents or contracts ( see, Matter of Coddington, 281 App.Div. 143 [1952], affd 307 N.Y. 181 [1954] )” ( Matter of Elkan, 22 Misc.3d 1125A [2009] ).
Here, the estate does not rest on the presumption of competence but adds the testimony of decedent's attorney, Allen Miskell, and the independent assessment of attorney Stopa. Miskell testified that there was “no question in [his] mind” that decedent was of sound mind when she executed the Will. He based his conclusion on the many hours of conversation that he had had with decedent on many different days. He stated that decedent was a “very strong minded, strong willed individual”, and that he “never even had a remote concern about her competence to execute a will.” Although Miskell would normally have had his paralegal or one of his daughters as the second witness in a Will execution ceremony, he felt it would be better in this case to have another attorney as witness so that there could be an independent assessment of decedent's competence. Miskell's decision to have an independent attorney-witness to decedent's Will was grounded in the fact that decedent “fully expected that somebody would contest her will.”
Stopa testified that he was left alone with decedent in order to make his own determination of her competence. During that meeting, they spoke about current events, such as the upcoming Fourth of July weekend. Stopa was satisfied that decedent was of sound mind and memory on the day of the Will execution ceremony.
Objectants allege that decedent lacked testamentary capacity on July 2, 2009, contending that she “was not competent to make a Will in that she did not know the nature and extent of her property nor the natural objects of her bounty, next of kin or distributees.” The evidence is all to the contrary.
Decedent had herself reviewed her bank and Cadaret account(s) with her financial advisor on the same day(s) when she was directing Miskell about the amount of each Will bequest. She even indicated to Miskell that her HSBC account balance “would be lower than the statement because she instructed Mr. Conniff to pay some bills.” Decedent was clearly aware of the nature and extent of her property within the meaning of the law in this regard ( see Matter of Walker, supra, at 867).
Objectants further contend that there is an issue of fact as to whether decedent knew the natural objects of her bounty. These assertions are based largely upon the testimony of the Oakwood social worker, Kecia Kelly. Kelly was unclear as to decedent's exact words, but they were something to the effect that “[i]f I have any family out there, I haven't seen them in thirty years.” This is consistent with Miskell's testimony that decedent originally told him that she had family but hadn't been in contact with them in thirty years.
Objectants allege that “drafting attorney Miskell has testified that Helen did not reveal to him who her next-of-kin were and that after her death, the identity of Helen's heirs had to be obtained from Helen's relatives in Arizona”. Objectants misperceive Miskell's testimony.
As discussed, supra, decedent gave Miskell information about her family members at his request for a family history. She acknowledged the names of the children of her predeceased brother Raymond, indicated that her brother, Edward, currently lived in Depew, that her brother, Stanley, lived in Arizona, that her brother, Chester, lived in East Aurora, and that her brother, Stephen, was still in Buffalo. Objectants point to the fact that Miskell was not aware of her nephews Ronald Dudek or Michael Dudek until he spoke to decedent's sister-in-law in Arizona after decedent's death. However, this fact alone does not tend to prove that the decedent was unaware of the natural objects of her bounty. Miskell testified that decedent clearly indicated she had living brothers, and that she had nieces and nephews from her deceased brother Raymond.
Miskell did not attribute decedent's failure to name each and every one of her living family members to a lack of memory, and both he and Stopa were satisfied as to decedent's mental acuity and testamentary capacity. As Miskell put it:
“She was always on the ball, always sharp.”
The record establishes, without evidentiary contradiction, that decedent knew she had living siblings and that there were children of a predeceased brother who were also alive. More to the point, she had had little or no contact with any of her family for a very long time, and she was quite specific with Miskell on more than one occasion that she did not want them to inherit from her. She relented in that regard only as to a small bequest to her brother, Stephen, but she was clear she did not want him to share in her residuary estate.
It is clear, therefore, that decedent knew who the natural objects of her bounty were-who, that is, her family was-and she deliberately chose to exclude them from her Will.
I conclude that decedent possessed the requisite testamentary capacity to execute her Will on July 2, 2009, and that there is not even a colorable issue of fact in that regard.
(c)
In Matter of Walther, supra, at 53–54, our Court of Appeals set out the principles governing a claim of undue influence:
“The concept of undue influence does not readily lend itself to precise definition or description. But this court, long ago, had established the criteria by which undue influence is to be determined: It must be shown that the influence exercised amounted to a moral coercion, which restrained independent action and [Slip Op. 13]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. 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, but a coercion produced by importunity, or by a silent resistless power which the strong will often exercises over the weak and infirm, and which could not be resisted, so that the motive was tantamount to force or fear ... lawful influences which arise from the claims of kindred and family or other intimate personal relations are proper subjects for consideration in the disposition of estates, and if allowed to influence a testator in his last will, cannot be regarded as illegitimate or as furnishing cause for legal condemnation ‘ (Children's Aid Soc. v.. Loveridge, 70 N.Y. 387, 394–395; see, also Smith v. Keller, 205 N.Y. 39, 44;Matter of Schillinger, 258 N.Y. 186, 191)” (emphasis added).
Moreover, “[a] mere showing of opportunity and motive to exercise undue influence is insufficient to present a triable issue of fact, without evidence that undue influence was actually wielded (see, Matter of Walther, 6 N.Y.2d 49, 55)” (Matter of Coniglio, 242 A.D.2d 901, 902 [1997] ). “To establish undue influence, it must be demonstrated that the acts of the influencing party are shown to effectively make it [his or her] will and not the will of the decedent” ‘ (Matter of Clapper, 279 A.D.2d 730, 732, quoting Matter of Klitgaard, 83 A.D.2d 651)” (Matter of Seelig, 13 AD3d 776, 777 [2004] ).
As the Appellate Division, Third Department, stated in Matter of Paigo, supra, at 839–840, “[b]ecause direct proof of undue influence is rare, it may be demonstrated by circumstantial evidence of motive, opportunity and the actual exercise of such influence ( see Matter of Malone, 46 AD3d [975, 977 (2007) ]; Matter of Castiglione, 40 AD3d [1227, 1228 (2007) ]” (emphasis added). Furthermore,
“[t]he burden of establishing undue influence is always upon the party seeking to establish it (Matter of Walther, 6 N.Y.2d 49). It has been eloquently expressed that it is impossible to define or describe with precision and exactness what is undue influence; what the quality and extent of the power of one mind over another must be to make it undue, in the sense of the law, when exerted in making a will.' (Rollwagen v. Rollwagen, 63 N.Y. 504, 519).Factors which will be examined when determining whether a testator was subjected to undue influence include his physical and mental condition (see Matter of O'Brien, 182 A.D.2d 1135). Conversely, one who is capable of acting independently is unlikely to be susceptible to the exercise of undue influence (see Matter of Mahnken, 92 A.D.2d 949). Also relevant to a finding of undue influence is a change in one's testamentary plan from a prior will (see Matter of O'Donnell, 91 A.D.2d 698).” ( Matter of Kubecka, supra, emphasis added).
Here, objectants urge that:
“Conniff's motive is clear—he stands to take, through probate and nonprobate transfer, more than $1 million of the property of his now-deceased neighbor, Helen. The size of the estate of a testator is a crucial factor in determining the influencer's motive to exert undue influence to secure a substantial benefit from the testator.”
Objectants point to Coniff's proximity to decedent, to the fact that he helped her at some point with her financial affairs, and to their friendship. And, clearly, the record shows many instances of kindness shown by Conniff to decedent, such as cutting her grass, inviting her to holiday gatherings, and running errands for her. The record also shows that, in the last month of her life, decedent gave Coniff a POA to assist her in handling her financial affairs.
While the size of a testator's estate can be considered in ascertaining motive, evidence of motive and opportunity is insufficient to raise a triable issue absent evidence that undue influence was actually exercised ( see Matter of Walther, supra, at 55). Miskell testified that decedent told him she was fully independent until just a few weeks before their meeting in June of 2009. The POA to Coniff was only signed when decedent asked Conniff to make bank transactions for her because she was unable to physically leave the Oakwood facility. Conniff testified that he made only the transactions decedent instructed him to make, and did not make any transactions without her permission.
The record shows decedent as being fully in control of her own financial affairs but needing someone in the last few weeks of her life to help her carry out the transactions she wished to make. Significantly, there is nothing in the record to show that Coniff acted to benefit himself in any way when he was assisting decedent under the POA. The facts reflect “kind acts and friendly offices' “ ( Matter of Walther, supra, at 54, quoting Children's Aid Soc. v. Loveridge, 70 N.Y. 387, 395) on Coniff's part, not coercion or importunity.
Furthermore, there is no proof in the record that decedent was “dependent” upon Coniff. Although she had Coniff assist her in a limited way with her financial matters when she could not leave Oakwood to do so herself, that is hardly the dependency envisioned by the cases which gives rise to one party having dominance over the other. The record is filled with evidence that decedent dealt independently with her attorney [Miskell], her financial advisor [Perrone], and her doctor(s) and the staff at Oakwood.
Objectants' final allegation, that decedent's physical or mental condition caused her to be susceptible to influence, is without evidentiary support. The record demonstrates that, in June and July, 2009, decedent was in a weakened physical condition, that her prognosis was “poor”, and that decedent was aware of that. Nevertheless, she dealt independently with the Oakwood staff, her financial advisor, and her attorney. Miskell and Stopa have attested to her “sharp” and independent mental capacities at that time, and Dr. Yates reflects that, on July 2, 2009, decedent was “alert and oriented times three”.
In short, there is no triable issue on the question of undue influence. Even where it can be said-and I find that such is not the case here-that the record supported “conflicting inferences, a conclusion of undue influence may not be drawn ( see Matter of Turner, 56 AD3d 863, 866 [2008];Matter of Nofal, 35 AD3d 1132, 1135–1136 [2006] )” ( Matter of Walker, supra, at 868).
Finally, I conclude that there has not been the slightest showing of fraud by objectants, let alone a triable issue of fact in regard to that claim:
“To establish fraud, it must be shown that ... petitioner knowingly made a false statement which altered the testamentary disposition that would have been made in the absence of such a statement' ( [Matter of Clapper, 279 A.D.2d 730, 732 [2001]; see Matter of Colverd, 52 AD3d 971, 972–73 [2008] ). Since respondents failed to present, among other things, any evidence of a knowingly false statement made by petitioner or any other person involved in the drafting or execution of the will, their objection should have been dismissed” ( Matter of Paigo, supra, at 838).
There is no allegation that a false statement had been made in order to procure a particular result in decedent's Will. Edward Dudek has testified that someone must have put words into decedent's mouth, but he could not specify the nature of the fraud. Instead, Dudek testified that “[i]t was a gut feeling what was done”, and he speculated that Coniff might have “exercis[ed] certain thoughts and ideas into [decedent's] head with regard to what ... she may have promised him over at the house.” A “gut feeling” is not proof.
In the end, objectants offer only speculation, surmise and suspicion, coupled with theoretical inferences. This is insufficient to raise a triable issue of fraud.
(IV)
A “motion for summary judgment may not be defeated by charges based upon surmise, conjecture, and suspicion' “ (Shapiro v. Health Ins. Plan of Greater NY, 7 N.Y.2d 56, 63, quoting Bank for Savings v. Rellim. Constr. Co., 285 N.Y. 708). That is all objectants have offered here.
I conclude, based upon the foregoing analysis, that the estate has established its entitlement to summary judgment as a matter of law, and that objectants have failed to raise any genuine issue of material fact which would require a trial.
Accordingly, I hereby grant the estate's motion for summary judgment, I dismiss the objections to probate, and I direct that decedent's Last Will and Testament, dated July 2, 2009 be admitted to probate. The Decree and Letters may issue accordingly.
This decision shall constitute the Order of this Court and no other or further order shall be required.