Opinion
No. 2012–608.
01-12-2015
Matter of Ruth Mae JOHNSON, Deceased.
Greg Catarella, Esq., of counsel to Levene, Gouldin & Thompson, for Petitioner. Angeline Cutrona, Esq. of counsel to Aswad & Ingraham, for Objectants.
Greg Catarella, Esq., of counsel to Levene, Gouldin & Thompson, for Petitioner.
Angeline Cutrona, Esq. of counsel to Aswad & Ingraham, for Objectants.
Opinion
DAVID H. GUY, J.
Ruth Mae Johnson died a resident of Broome County on September 10, 2012. A petition for the probate of an instrument dated December 9, 2008, purported to be her Last Will and Testament, was filed by the nominated executor, her daughter Marjorie Anne Johnson, on October 9, 2012. The decedent's other distributees are her sons, David W. Johnson and Kermit Johnson. At their request, SCPA § 1404 examinations of the witnesses to the Will were conducted on December 18, 2012 and January 3, 2013. Objections to the probate of the offered instrument were filed by David W. Johnson and Kermit Johnson on February 8, 2013. On March 12, 2013, the proponent replied to the objections and moved for their summary judgment dismissal. Responsive pleadings and memoranda of law were filed and the summary judgment motion was argued before the Court on June 3, 2013.
On September 12, 2013, the Court rendered a Decision on the summary judgment motion. The objection of lack of due execution was dismissed. Summary judgment dismissal of the objections based on lack of capacity and undue influence was denied, largely because no discovery had yet taken place.
The Court issued discovery scheduling Orders on October 30, 2013, December 16, 2013 and January 6, 2014. Following completion of discovery, the proponent renewed her motion for summary judgment dismissal of the objections by notice of motion filed March 3, 2014, supported by an attorney affirmation and a memorandum of law, as well as her pleadings in the original summary judgment motion. Objectants replied with a memorandum of law and affidavits in opposition to the motion, filed May 21, 2014. Proponent filed a reply affidavit on May 29, 2014. The matter was argued before the Court on June 4, 2014.
Also currently pending before the Court are an action by objectants to remove proponent as preliminary executor; an accounting proceeding for proponents service as preliminary executor; and an action to compel an accounting by proponent as power of attorney for her mother pursuant to a power of attorney executed on March 12, 2007. These other actions have been held in abeyance and proponent continues as preliminary executor, subject to limitations imposed by the Court, pending the resolution of this summary judgment motion.
Summary judgment is a drastic remedy, with a legal effect equivalent to a trial verdict, not to be granted routinely. Summary judgment will not be granted where there is any doubt as to the existence of a triable issue of fact. Alverez v. Prospect Hospital, 68 N.Y.2d 320 (1986) ; See Matter of Paigo, 53 AD3d 836 (3rd Dept.2008) ; Estate of Colverd, 52 AD3d 971 (3rd Dept.2008) ; Matter of Castiglione, 40 AD3d 1227 (3rd Dept.2007).
The proponent of the Will must establish the capacity of the decedent at the time of the execution of the Will. The witness affidavits submitted with the probate petition and the testimony of the witnesses at the 1404 examinations establish a prima facie case for capacity. The burden then shifts to the objectants to establish lack of capacity on the part of the decedent, or undue influence upon her. Matter of Halpern, 76 AD3d 429 (3rd Dept., 2010). On a motion for summary judgment the Court must give credence to the allegations made by the objectants, provided that they must be more than “conclusory allegations”. Matter of Doody, 79 AD3d 1380 (3rd Dept., 2010) ; Matter of Turner, 56 AD3d 683 (3rd Dept., 2008). For proponent to be successful at this point with respect to the remaining objections, the Court must find as a matter of law that the allegations of the objectants, as supported by the affidavits submitted in response to this and the prior summary judgment motion, could not support a verdict of lack of capacity or undue influence.
Objectants allege that the decedent lacked capacity by virtue of her inexperience in financial affairs and her lack of knowledge of her assets. A testator need only have a general awareness of the nature and extent of her assets to have testamentary capacity. See Matter of Walker, 80 AD3d 865 (3rd Dept., 2011). The decedent's real estate—the family farm and homestead—may have been the most important asset to the decedent, and to the rest of her family, but it was not her only asset. The affidavit of proponent's counsel submitted in support of this summary judgment motion shows that at the time of the execution of the offered Will, decedent had over $220,000 in bank accounts at NBT Bank. These are approximately equal to the value of the real estate she owned at that point, as estimated by the Assessor for the Town of Colesville. At the 1404 examination, the draftsman of the Will stated that he made no inquiry of decedent about her non-real estate assets, himself assuming that they weren't a substantial part of her estate, despite having worked with decedent and her husband for over 40 years . This leaves open the question of how aware decedent was of the relative value of her bank accounts. It is not disputed that decedent's husband handled their financial affairs when they both were alive, and that responsibility for decedent's finances was completely surrendered by her to proponent approximately a year after her husband died, and more than a year and half before the offered Will was executed. A jury might find that the failure by counsel to explore decedent's entire asset picture with her at the time of the preparation and execution of the Will supports a finding that decedent was generally not aware of her substantial cash assets.
The draftsman said of the bank accounts, “it wasn't anything extensive”, and “I don't think it was a whole lot of money”, agreeing it was, he believed, “something of a token”. Richard Barber § 1404 testimony, December 18, 2012, p. 17.
In order to succeed in proving undue influence, objectants must show that the offered Will was not the independent action of the decedent, but was the result of the imposition of proponent's Will upon her. Undue influence must be proven by evidence of a substantial nature which shows motive, opportunity, and specific acts allegedly constituting undue influence. Matter of Makitra, 101 AD3d 1579 (4th Dept, 2012) ; Matter of Walker, supra. The evidence cannot be mere speculation and conclusory allegations (Matter of Walker, supra; Matter Colverd, supra ), but for purposes of defeating a summary judgment motion, factual allegations must be assumed by the Court to be true. Matter of Doody, supra.
The relevant facts, as alleged by objectants, are: decedent was inexperienced in dealing with financial matters; she relied upon the proponent to handle her financial affairs, after her husband died, by delegation via the Power of Attorney, which allowed the proponent to act independently of the decedent; proponent was the decedent's care giver, both as the only local child and as the child with whom decedent resided beginning three months before the subject Will was executed.
The existence of the Power of Attorney and decedent's residence with proponent gave the proponent the opportunity to exert undue influence. Proponent's modest financial situation, improved with funds from decedent (for a new car, landscaping work and other home improvements, at least), together with the apparent financial needs of proponent's daughter (also assisted with decedent's funds), gave proponent a motivation to unduly influence her mother. The most difficult element of the proof of undue influence, specifying acts of undue influence, is more difficult to prove. However, the above noted factors in the relationship between decedent and proponent may combine to establish a confidential relationship between them, which may give rise to an inference of undue influence, shifting the burden to proponent to at least explain the questionable transactions and potentially to prove that the Will was not the subject of undue influence. In Matter of Antoinette, 238 A.D.2d 762 (3rd Dept., 1997), the Court found that the confluence of many factors, including decedent's relationship with proponent and her longstanding attorney, her lack of involvement in financial matters, the radical alteration of her testamentary disposition and decedent's uncertainty and lack of understanding of some of her financial transactions demonstrated motive, opportunity and actual influence by proponent, defeating summary judgment. The facts presented in this case by objectants and assumed to be true in the context of this summary judgment motion are very similar. Decedent, in her own hand, acknowledged that she “had to lean on [proponent] a lot, and especially in business matters”. Doris K. Johnson Affidavit dated April 22, 2013.
The existence of a confidential relationship is itself a question of fact, which precludes summary judgment. In re Corkwell–DeBerti, NYLJ, July 1, 2010, at 43, col. 4 (Surr. Ct. Suffolk Co.)
Objectants also allege financial abuse of decedent by the proponent as evidence of undue influence by proponent over her mother. They have filed an independent proceeding, now held in abeyance, requesting an accounting from proponent for transactions undertaken by her as power of attorney. At least in theory, the probate of the offered instrument makes the alleged financial abuse moot, since the proponent is the sole residuary beneficiary under the offered Will and even improper use of her mother's funds would not disadvantage her brothers.
Approximately $63,000 in questioned transactions occurred before the offered Will was executed. Though only about 20% of the total questioned transactions, this is still a significant sum of money. Financial, potentially abusive, control of a testator is a significant factor in many Will contests, particularly as it relates to the confidential relationship between the financial controller and the testator. Certainly, proponent's receipt of substantial benefit from her mother through the use of the power of attorney could be seen as a motivating factor for her to influence her mother to change her Will.
It is also relevant that the transfers made by the proponent using her power of attorney (again, accepted for purposes of this summary judgment motion) before the Will execution are void as a matter of law under the fiduciary standard applicable to an agent under a power of attorney in New York. They were not consistent with decedent's testamentary plan in place before the execution of the offered Will. Matter of Ferrara, 7 NY3d 244 (2006) ; Semmeller v. Naples, 166 A.D.2d 751 (3rd Dept., 1990) ; Matter of Brimacombe, Broome County Surrogate's Court File 2009–683 (May 11, 2012). Whether this facially flagrant abuse of her power of attorney, if ultimately proven, is evidence of undue influence by proponent is a question of fact, at least. It would be inappropriate for proponent to be insulated from the consequences of such financial abuse without a full hearing on the issue of undue influence.
The fact finder here may be a jury , but the Court must be independently satisfied that all relevant questions relating to validity are addressed in order to probate a Will. SCPA § 1408. The Court perceives a need for it and the jury to see and hear the witnesses to these transactions to assess credibility and make legal and factual determinations.
Objectants filed a demand for a jury trial.
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For the above reasons, the motion for summary judgment is denied. This matter will proceed to a trial.
In reaching this decision, the Court has given consideration to the fact that CPLR § 4519 will impact the admissibility of evidence from both proponent and objectants. The parties may choose not to assert the protection of CPLR § 4519. Some of the family members are not disqualified under § 4519, because they do not have a direct financial benefit. Their relationship to someone who is disqualified by direct financial benefit may suggest a bias, but bias goes to credibility, not disqualification. In re Falvey's Will, 29 Misc.2d 417, rev'd on other grounds, 15 A.D.2d 415, aff'd 12 N.Y.2d 759 (1962) ; In re Freeman's Will, 23 Misc.2d 846 (Surr. Ct., Orleans Co., 1960).
This matter is set down for an attorney conference on January 21, 2015, at 2:30 p.m. at which a trial date will be set, on a date as soon as a jury and courtroom are available, discovery in this matter being completed in advance of this summary judgment motion.
This Decision constitutes the Order of the Court.