Opinion
No. 2022-50734
03-31-2022
In the Matter of the Estate of Ruth Peters, Deceased.
ROBERT M. CIESIELSKI, ESQ. Appearing for David Bialkowski THOMAS F. HEWNER, ESQ. Appearing of Counsel to Robert Ciesielski, Esq. BOND, SCHOENECK & KING, PLLC Appearing for The Diocese of Buffalo, N.Y. Dennis K. Schaeffer, Esq. of Counsel ELIZABETH A. INGOLD, ESQ. Appearing for Nancy Kolack SEAN A. FITZGERALD, ESQ. Appearing as Guardian ad Litem for Evelyn Marchlewicz, an Adult Under Disability and for Possible Unknown Heirs HON. LETITIA JAMES, NYS ATTORNEY GENERAL Appearing for Charitable Beneficiaries Melissa H. Thore, Esq., Asst. Attorney General of Counsel
Unpublished Opinion
ROBERT M. CIESIELSKI, ESQ. Appearing for David Bialkowski
THOMAS F. HEWNER, ESQ. Appearing of Counsel to Robert Ciesielski, Esq.
BOND, SCHOENECK & KING, PLLC Appearing for The Diocese of Buffalo, N.Y.
Dennis K. Schaeffer, Esq. of Counsel ELIZABETH A. INGOLD, ESQ. Appearing for Nancy Kolack
SEAN A. FITZGERALD, ESQ. Appearing as Guardian ad Litem for Evelyn Marchlewicz, an Adult Under Disability and for Possible Unknown Heirs
HON. LETITIA JAMES, NYS ATTORNEY GENERAL Appearing for Charitable Beneficiaries
Melissa H. Thore, Esq., Asst. Attorney General of Counsel
HON. ACEA M. MOSEY SURROGATE JUDGE
Ruth Peters [hereafter, decedent], a former school principal in the Town of Cheektowaga, New York, died on July 29, 2019 at the age of 90. Her husband, Matthew, had predeceased her in 2014, and she had no issue or siblings. However, decedent was survived by five known first cousins, including Evelyn Marchlewicz [hereafter, Marchlewicz] and Nancy Kolack [hereafter, Kolack].
Decedent's Last Will and Testament, dated November 2, 2016, left $125,000 to David Bialkowski [hereafter, Bialkowski]. The Will contains no residuary clause denominated as such, and appoints Bialkowski as executor . Bialkowski filed a petition to probate that Will on August 14, 2019, and preliminary letters testamentary were issued to him on August 26, 2019. Sean A. Fitzgerald, Esq. was appointed guardian ad litem [hereafter, the GAL] for possible unknown heirs and for Marchlewicz, an adult under disability. SCPA 1404 hearings were held on January 19, 2021 and October 4, 2021, at which the attorney-draftsperson (and one of the witnesses to the Will), Robert Ciesielski, Esq. [hereafter, Ciesielski], Sara Moretta [hereafter, Moretta], a witness to the Will, and Bialkowski, testified.
The Will gives Bialkowski the authority "to distribute all of my property to any persons or organizations".
Objections to probate were filed on February 26, 2021 by both the GAL on behalf of Marchlewicz and unknown heirs, and by Elizabeth A. Ingold, Esq. on behalf of Kolack. The GAL alleged, inter alia, that (1) decedent was not of sound mind or memory on November 2, 2016, and was not mentally capable of making a Will, (2) decedent was not aware of the natural objects of her bounty, (3) decedent was not aware of the nature, extent, and condition of her property, (4) decedent did not understand the scope and meaning of the provisions of the paper writing alleged to be her Will, (5) decedent executed the Will by mistake, (6) the Will was procured by undue influence, fraud, and/or duress practiced upon decedent by Bialkowski and/or another person or persons; and (7) Bialkowski lacks the qualifications required of a fiduciary by reason of dishonesty or improvidence, or is otherwise unfit for the execution of the office of executor. Kolack's objections echo those of the GAL.
Bialkowski filed a motion for summary judgment on November 9, 2021 seeking dismissal of the objections and admission of the Will to probate. Objectants oppose the motion, contending that material issues of fact exist which require a trial. The motion having been finally submitted, I now find and decide as follows.
(A)
On a motion for summary judgment, the moving party must make a prima facie showing of entitlement to judgment as a matter of law (Matter of Cameron, 126 A.D.3d 1167, 1168 [2015]). If such a showing is made, the burden then shifts to the party opposing the motion to "produce sufficient evidence to establish the existence of material issues of fact which require a trial" (Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324 [1986]):
"Summary judgment may be granted only where it is clear that no triable issue of material fact exists (see 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 'although summary judgment must be exercised cautiously, it is proper in a contested probate proceeding where the proponent submits a prima facia case for probate and the objectant fails to raise any genuine factual issues (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 A.D.3d 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], affd 49 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, 14 A.D.3d 657 [2005]). Moreover, the court is required to search the record when it is engaged in the process of issue finding (Fullman v. 142 E. 27th St. Assocs., 1 NY3s 211 [2004]; Insurance A.G. v. Moor-Jankowski, 77 N.Y.2d 235 [1991])" (Matter of Zirinsky, 10 Misc.3d 1052 A [2005], emphasis added, affd 43 A.D.3d 946 [2007]; see also Matter of Colverd, 52 A.D.3d 971 [2008], Matter of Ryan, 34 A.D.3d 212 [2006], and Matter of Kubecka, 15 Misc.3d 1129 A [2007]).
A Court may grant probate when it is "satisfied with the genuineness of the will and the validity of its execution" (SCPA 1408[1]). The Will must have been duly executed, and the testator at the time of its execution must have been competent to make a Will and not under any restraint (SCPA 1408[2]). A testator must sign the Will at its end (EPTL 3-2.1 [a] [1]), and must sign in the presence of at least two attesting witnesses or acknowledge their signature to each attesting witness separately (EPTL 3-2.1 [a] [2] and [4]). The testator must also at some time during the execution ceremony declare that the instrument being signed is their Will (EPTL 3-2.1 [a] [3]).
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]; see also Matter of Sundmacher, 192 A.D.3d 898 [2021]), whereas the burden of proof on the issues of fraud and undue influence rests on the party who asserts such claims (see e.g. Matter of Walther, 6 N.Y.2d 49, 54 [1959]; see also Matter of Mele, 113 A.D.3d 858, 860 [2014]).
The issue before this Court is whether Bialkowski has established his prima facie entitlement to summary judgment dismissing the objections and admitting the Will to probate, and, if so, whether the objectants have raised any material issue of fact which would require a trial (see Matter of Bordell, 150 A.D.3d 1446, 1446 [2017]; see also Matter of Pollock, 64 N.Y.2d 1156 [1985]).
(B)
(i)
At the SCPA 1404 hearing, Bialkowski testified that he met decedent in 1995 when he worked at St. John Gualbert Church as a priest and moderator of the parish's Ladies Guild. Bialkowski stated that decedent was an active member of the parish community, and served as a lector, Eucharistic minister, and president of the Ladies Guild.
While Bialkowski was in active ministery at St. John Gualbert Church, decedent asked him to be the executor of her Will. Bialkowski testified that he has not served as an executor for any parishioner other than decedent, but that a priest is allowed to serve as an executor for parishioners who ask them to assume that role.
Bialkowski stated that he did not have any contact with decedent other than birthday and Christmas cards between the years 2011 and 2015. After decedent's husband Matthew passed away in 2014, decedent asked Bialkowski to help her collect Matthew's belongings and organize his house.
Matthew owned two pieces of real property at the time of his death.
Bialkowski testified about the nature of his relationship with decedent after Matthew's death:
"So we [organized Matthew's house] for a couple of months, I would say into the summertime, only because I remember her giving me tea from the fridge and it was hot in the house. And so then - then she asked me to help her with statements that pertained to utility bills, property taxes and she asked me to organize them according to location and according to who was the owner. Some were owned by Matthew, her deceased husband, and some were owned - and she brought hers, her mail, and she wanted that organized and it was all done on the kitchen table on Brookedge Road. There was no checks at that time initially. And then gradually she would pull out her checkbook from her purse and she would say, dictate to me who this is going to be paid for and the amount, and I would dictate it and then she would hand me the check and she would say, check it to make sure it's all correct, and I would check it and then she would sign it and then I would - she had a system. It had to be attached with a stapler to the bill and even though I told her, it says right on the envelope, do not attach with a staple, you couldn't tell her what to do. She was a principal for decades and sometimes I felt like her student. So that's what I was doing. After a couple months, by later in the year 2015, she said her printing wasn't so good; could you write this check. And then after I would write it out, I would give it to her. She would look at it and then she would sign it. Her checkbook was always in her purse, which was always by her. She did not leave a checkbook out to be accessible to myself or anyone. She was always in full control. And her mind was outstanding. She never, ever had any type of dementia or anything like that" (emphasis added).
Bialkowski testified that he assisted decedent with these projects about every ten days, and that he believed that he was the only person who was available to help her with them:
"Q. Did you ask her if she had anyone else to help her ?
A. I did.
Q. And she said ?
A. No, I don't have any family.
Q. Did she have any friends?
A. I believe she had friends. She was very active in the community. She was very active with Villa Maria College Circle of Friends. She had been active with the retirement association of teachers of Cheektowaga. She was still going to church regularly. Those were all of the things she was involved with so she saw people consistently. She was getting her hair done every single week. She took great care of herself. She was driving. She was very independent" (emphasis added).
After decedent stopped driving in 2018, Bialkowski drove her to all of her financial, medical, and beauty appointments. Particularly with her finances, Bialkowski was never part of, or privy to, decedent's meetings with her financial "advisers", and, with her banking, he always waited in the car for the duration of her appointments. Bialkowski also regularly delivered groceries and prescriptions to her home, but she had him leave the items in a hallway rather than entering her apartment.
In 2016, decedent and Bialkowski met at attorney Ciesielski's office:
"Q. The occasion in November, I believe you said, for the execution of the power of attorney, did you both arrive at Mr. Ciesielski's office separately?
A. We arrived separately.
Q. Okay. And did you depart separately?
A. Yes.
Q. And if you recall, when you signed the power of attorney as the agent, had they been in a conference room before that?
A. Yes, they were together in his office and I was in the waiting room.
Q. And then they called you in?
A. Yes. I believe Ruth walked out of the office, but I'm not sure, and then I was called in.
Q. Okay. So you don't recall if she was present when you countersigned it?
A. I don't recall that. I don't think she was.
Q. Okay. And was her signature already on that document when you put your signature on it?
A. I don't recall, but I would have assumed it was because she was just in the office, but I don't remember.
Q. Okay. Were you provided with a photocopy of that document?
A. No.
Q. Were you ever provided with any other estate planning documents?
A. Never.
Q. Okay. Do you know if that was her first power of attorney?
A. I have no idea, no.
Q. And your testimony is that you never had occasion to use that power of attorney?
A. Right. I had no paperwork and I'm not aware that she even submitted the paperwork to M & T."
(ii)
Attorney-draftsperson Ciesielski testified that he had known decedent and Matthew for several years. Ciesielski had performed legal services, such as house closings, for Matthew and decedent prior to Matthew's death, and decedent had retained Ciesielski to represent her as administrator of Matthew's estate after Matthew died.
Ciesielski stated that, after Matthew's estate was finalized in 2015, he had many conversations with decedent about executing her own Will. During these conversations, decedent informed Ciesielski that she did not want to name "anybody in particular as a beneficiary she wanted her executor to handle everything."
Ciesielski had explored whether decedent had any family, and he knew she had no children or siblings. A long-time friend of decedent's has submitted an affidavit that decedent "never talked about her family, cousins or anything else to her."
Decedent named Bialkowski as executor of her Will and made him solely responsible for the distribution of her assets. She also left Bialkowski $125,000 in her Will. Ciesielski testified about why he believed decedent wanted Bialkowski to receive this bequest:
"I know [David] was aiding her, that when her husband died, she asked him for help with cleaning out her husband's house and at some point or other I do know that David would - I don't recall when - it was before or after that he would go through bills with her. She would fill out the checks. He would sometimes help her go through bills, but she would write the checks. That's kind of what I recall. So I know that he - she knew [David] beforehand and she did name him as her power of attorney, but I actually - the one thing I do remember her saying, you know, I think we should have something in here that's solid, like some bequest. That might have been my suggestion to her. She said the only person I would like to leave my money to specifically would be David Bialowski, so that's why I did that."
Ciesielski did not recall whether Bialkowski was present at the time decedent signed her Will:
"You know, I can't recall like I say, the - his signature on the power of attorney was dated the same date as the power of attorney was made, so he may have come and waited in the front room and maybe I explained the power of attorney to them, although I can't - I can't specifically remember. I do know that I never permit someone into a room while the will's being signed other than a spouse, so he would have not been in the room when the will was being discussed and signed" (emphasis added).
Ciesielski also testified that the decedent knew and understood the distribution plan set out by her Will:
"Q. I apologize if you already answered this, but did you provide a copy of the draft to Ruth prior to your meeting with her on the 2nd of November?
A. No.
Q. Did you give her an opportunity to fully read through the will prior to the signing?
A. Well, my procedure is I mean if somebody comes in, I read the will to them in full as they sit there with the original. I read off the copy and that will become the conformed copy and ask if there's any questions and if they understand.
Q. Did she have any questions about her will ?
A. No. That's what she wanted" (emphasis added).
Ciesielski was confident that the decedent had testamentary capacity on the day she signed her Will:
"Q. When you met with her in person, did you ask her any questions to determine her capacity ?
A. Oh, I knew her for a number of years. I felt she had capacity. She had all these real estate deals. She signed contracts. I mean I thought - she handled her husband's estate. I probably met with her at least in person eight to ten times before that will was made and she seemed to be no different than the other times I talked to her.
Q. Did you know if she had any medical issues?
A. Not at the time, no. I'm unaware of any medical issues.
Q. Did you -
A. I knew later she had trouble seeing; she had trouble with her eyesight in the final year or two, but other than that I'm aware of any problems she had.
Q. Did you ask if she was on any medications?
A. I don't believe so.
Q. Did you ask if she had any recent hospitalizations?
A. I don't recall.
Q. Was Ruth Peters living independently at the time you met with her?
A. Yes.
Q. Was she handling all of her own personal finances?
A. As far as I know she was, yes.
Q. Were you of the opinion that she was capable of managing her own finances ?
A. Yes" (emphasis added).
(iii)
Moretta, the second Will witness, was a legal secretary in Ciesielski's office where she had worked for approximately 13 years. She testified that she did not remember the day that decedent signed her Will, but, having witnessed roughly two to five Will executions each week, described Ciesielski's standard procedures for Will execution:
"Q. Did [Ciesielski] always ask that the person signing the will declare that this was their Last Will and Testament?
A. Yes.
Q. So that was always very clear. And they always declared that - he always asked them to declare that they had reviewed the document and it was acceptable to them, is that correct?
A. Correct, yes.
Q. And then I think you said he wanted to make sure that the - the person asked then that you and [Ciesielski] be the witnesses to this will, correct?
A. Correct, yes.
Q. And that always took place before the actual signing?
A. Yes, correct.
Q. And you always - even though you don't have an independent recollection of this will being signed, you always watched the person sign the will first?
A. Yes.
Q. And then you would watch [Ciesielski] sign?
A. Yes.
Q. And then you would sign?
A. Yes.
Q. And just to make it clear, while [Ciesielski] and you were signing, the persons who had signed the will would be watching you and [Ciesielski] sign, correct?
A. Correct, yes."
(C)
(i)
Turning first to the issue of the decedent's capacity to make a Will on November 2, 2016, our Court of Appeals, in Matter of Kumstar, supra, at 692, restated the factors that must be evaluated to prove 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 NY 7)" (see also Matter of Williams, 13 A.D.3d 954, 955 [2004] and Matter of Hinman, 242 A.D.2d 900 [1997])."
The capacity required of a testator is less than the law requires to execute other legally binding documents (Matter of Coddington, 281 App. Div. 143, 146 [1952], aff'd 307 NY 181 [1954]), and the point at which capacity is required is the precise time of the propounded instrument's execution (Matter of Anella, 88 A.D.3d 993, 995 [2011]; see also Matter of Hedges, 100 A.D.2d 586, 588 [1984] and Matter of Coniglio, 242 A.D.2d 901, 902 [1997]). The law clearly establishes that, "until the contrary is established a testator is presumed to be sane and to have sufficient mental capacity to make a valid will" (Matter of Beneway, 272 App. Div. 463, 467 [1947]; see also Matter of Schmidt, 2017 NY Misc. LEXIS 3182, 2017 Slip Op 31783[U]).
Here, Ciesielski and Moretta executed affidavits that were sworn to on the same day that decedent's Will was executed. In each affidavit, Ciesielski and Moretta attest that, when decedent executed her Will on November 2, 2016, she:
"was... of sound mind, memory and understanding, and was not under any restraint to the best of my knowledge and belief, and in my opinion was competent to make a Will... and was not suffering from any defect of sight hearing or speech or from any physical or mental impairment which would affect her capacity to make a valid Will."
Ciesielski testified that he relied on his past exchanges with decedent to conclude that she had testamentary capacity on the day of the Will execution ceremony because "she seemed no different than the other times I talked to her." During the Will execution ceremony, Ciesielski read decedent's Will aloud while she followed along with the original. Ciesielski testified that decedent did not have any questions after she reviewed the Will because it was "what she wanted."
Ciesielski also testified that, before the Will execution ceremony, he discussed with decedent what property she had, what she wanted to do with it, and to whom she wanted her property to go. Decedent told Ciesielski that she did not want to name beneficiaries in her Will. Instead, decedent named Bialkowski as her executor, made him solely responsible for the distribution of her assets, and left him a bequest of $125,000.
In opposing summary judgment, objectants contend that decedent did not understand the nature of her Will due to her poor eyesight. However, even if decedent had suffered from poor eyesight at the time, she would have been able to understand the contents of her Will when Ciesielski read it aloud to her on the day of the Will execution ceremony.
It is clear from all the foregoing that decedent knew the nature and extent of the property affected by her Will, and a testator need only have "a general, rather than a precise, knowledge of the assets in his or her estate" (Matter of Hadden, 188 A.D.3d 686, 687 [2020], and Matter of Walker, 80 A.D.3d 865, 867 [2011]). The proof clearly establishes that the decedent had the requisite testamentary capacity when she executed her Will (Matter of Curtis, 130 A.D.3d 722, 722-723 [2015]; see also Matter of Doody, 79 A.D.3d 1380, 181 [2010] and Matter of Walker, supra).
I conclude, therefore, that the objection regarding decedent's testamentary capacity must be dismissed.
(ii)
Bialkowski, as the proponent of decedent's Will, bears the burden of establishing that the Will was executed in compliance with EPTL 3-2.1 (see, e.g. Matter of Kumstar, supra; see also Matter of Martinico, 177 A.D.3d 882, 884 [2019] and Matter of Bodkin, 128 A.D.3d 1526 [2015]).
At the outset, I note that the execution of this Will was supervised by decedent's attorney, the attorney-draftsperson. That alone gives rise to a presumption of regularity (see, e.g., Matter of Coniglio, supra, at 902; see also, Matter of Dane, 32 A.D.3d 1233, 1234 [2006]).
Additionally, Ciesielski testified at the 1404 hearing that he had known decedent for years prior to the Will execution ceremony. Both witnesses stated that they were asked by decedent to witness her Will prior to the execution ceremony. During the execution ceremony, both witnesses were present and sat in the same room as decedent. Decedent stated to both witnesses that she was signing her Will, she acknowledged to them that the document was her Will, and she signed the Will in their presence, after which each witness signed the Will. The attestation clause states:
"The foregoing instrument was signed, published, declared by the Testatrix to be her LAST WILL AND TESTAMENT, in our presence, and we, at her request and in her presence and in the presence of each other, have hereunto subscribed our names as witnesses this 2nd day of November, 2016.
/s/ Sara L. Moretta residing at 3383 Greenway Rd.
Grand Island, NY 14072
/s/ Robert M. Ciesielski residing at 2511 Harlem Rd.
Cheektowaga, NY 14225"
The foregoing establishes prima facie that the Will was duly executed. The "burden then shift[s] to the objectant[s] to produce evidentiary proof in admissible form to... raise a material issue of fact" (Matter of Halpern, 76 A.D.3d 429, 432 [2010]). This requires "positive proof that formal requirements of execution were not met" (Matter of Pilon, 9 A.D.3d 771, 772 [2004]; see also Matter of Buchting, 111 A.D.3d 1114 [2013]). Objectants, however, have proffered nothing in that regard.
Because all formal requirements of due execution were established without evidentiary contradiction, I find no triable issue of fact in that regard, and, accordingly, the objections of mistake and lack of due execution must be dismissed.
(iii)
Objectants contend next that decedent's Will was not voluntarily made and that it was the product of undue influence, fraud, and/or duress. The principles governing a claim of undue influence have been set forth by our Court of Appeals and are well-settled:
"The concept of undue influence does not readily lend itself to precise definition or description. But this court, long ago, has established the criteria by which undue influence is to be determined: 'It must be shown that the influence exercised amount 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. 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 silent resistless power which the strong will often exercise 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 claim 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 law will, cannot be regarded as illegitimate or as furnishing cause for legal condemnation (Children Aid Soc. v. Loveridge, 70 NY 387, 394-95; see also Smith v. Keller, 205 NY 39, 44; Matter of Schillinger, 258 NY 186, 191" (Matter of Walther, supra, at 53-54).
The party asserting undue influence has the burden of proof (Matter of Fellowes, 16 A.D.3d 995 [2005]). Allegations of undue influence must be specifically pled, including where and when such acts occurred (see Matter of Friedman, 26 A.D.3d 723, 726 [2006]; see also Matter of Colverd, supra, at 973, Matter of Stafford, 111 A.D.3d 1216 [2013], and Matter of Alibrandi, 104 A.D.3d, 1175, 1178 [2013]). To establish undue influence, a party is required to demonstrate that decedent "was actually constrained to act against [her] own free will and desire by identifying the motive, opportunity and acts allegedly constituting the influence, as well as when and where such acts occurred" (Matter of Colverd, supra, at 973; see also Matter of Capuano, 93 A.D.3d 666, 667-668 [2012]; Matter of Alibrandi, supra, at 1177, and Lewis v. DiMaggio, 151 A.D.3d 1296, 1299 [2017]). The influence asserted must rise to a level of "a moral coercion" (Matter of Stafford, supra, at 1217). "Mere speculation and conclusory allegations, without specificity as to precisely where and when the influence was actually exerted, are insufficient to raise an issue of fact" (id., at 1217, citing Matter of Alibrandi, supra, at 1178 [internal quotation marks and citations omitted]).
Objectants' claim of undue influence is based on Bialkowski's relationship with decedent. The record shows many instances of kindness shown by Bialkowski to decedent, such as driving her to appointments and assisting her with the cleanup of Matthew's house. The record also shows that, in the last few years of her life, decedent gave Bialkowski her power of attorney to help her when needed, although Bialkowski testified that he never exercised that power.
While the size of the decedent'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).
In Matter of MacGuigan, 2015 NY Misc. LEXIS 5820 [dec. Apr. 20, 2015], aff'd 140 A.D.3d 625 [2016], decedent's distributee-sister claimed that the Will's bequest of more than one-half of decedent's eight-million-dollar estate to decedent's long-time friend was, inter alia, the result of undue influence and fraud. In rejecting all challenges and admitting the Will to probate, the Court said that it "is certainly not unusual for a testator to wish to benefit a long-term partner, a natural recipient of affection and gratitude, over family members with whom he had little contact with over the years." Even though it was "undisputed that proponent was decedent's attorney-in-fact and health care proxy, and accompanied decedent to banking and medical appointments", there was nothing "to suggest that proponent had 'disparate power and control over the decedent.'" The Court concluded that, even if a confidential relationship had existed between decedent and proponent, "such relationship is counterbalanced" by the proof that the proponent did not exercise "disparate power and control" over her.
And in Matter of Kotsones, 185 A.D.3d 1473, 1475 [2020], aff'd 37 N.Y.3d 1154 [2022], our Appellate Division held that, even where a confidential relationship may be said to exist between a testator and a beneficiary, proof that the testator "was actively and personally involved" in managing her affairs - even with the assistance of a beneficiary in that regard - "and in drafting her estate plan" and in directing "her personal attorney and the branch manager at her bank to act in according to her desires based upon her own personal stated reasons", precludes any finding of undue influence.
Here, the uncontradicted record shows that decedent was fully in control of her own affairs, but needed someone to assist her in certain things over the last few years of her life. There is nothing in the record to show, even colorably, that Bialkowski acted to benefit himself in any way while he was assisting decedent. Testimony from both Bialkowski and Ciesielski demonstrates that Bialkowski had scant knowledge of decedent's legal or financial affairs, other than decedent's intention to make him her executor and power of attorney. Here, the record reflects "kind acts and friendly offices" (Matter of Walther, supra, at 54, quoting Children's Aid Soc. v. Loveridge, 70 NY 387, 395) on Bialkowski's part, not coercion or importunity. The testimony from both Bialkowski and Ciesielski also shows that decedent was never deprived of her "free will or agency", and that she made her own decisions on all significant issues based on her "own personal motives" (Matter of Kotsones, supra, at 1476).
According to his testimony, decedent contacted Bialkowski in 2015, and asked him to be the executor of her estate, "because I can trust him and because I believe you are competent to handle the things that I want."
I conclude that the record clearly and convincingly establishes that this Will was not the product of any undue influence, and that there is no triable issue of fact in that regard (see Matter of Werner, 36 Misc.3d 1224 A [2011], aff'd on opn. of this Court [Howe, J.] at 96 A.D.3d 1427 [2012]).
Similarly, I conclude that there has been no showing of fraud, let alone a triable issue of fact in regard to such a 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, supra, at 972-73). 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 absolutely nothing anywhere in the record before me to give scope or definition to objectants' assertion of fraud. I conclude that there is no proof that the Will was the product of fraud perpetrated on decedent by Bialkowski or any other person (see Matter of Linich, 2021 NYLJ LEXIS 262 [dec. Apr. 2, 2021, citing Matter of Coniglio, supra).
Finally, I conclude that there has not been any showing of duress, or any triable issue of fact regarding that claim. "A donative transfer is procured by duress if the wrongdoer threatened to perform or did perform a wrongful act that coerced the donor into making a donative transfer that the donor would not otherwise have made" (Matter of Rosasco, 31 Misc.3d 1214 [A] [2011]). To establish duress, an objectant bears the burden of proof (see Matter of Osgood, NYLJ, Feb. 11, 1991, at 22, col 6) by a preponderance of the evidence (see 3 Warren's Heaton on Sur Ct Prac §42.04).
There is no evidence that Bialkowski, or any other person, threatened to perform or did perform a wrongful act which coerced decedent to make a bequest she would not have made otherwise. Therefore, this objection must be dismissed.
(D)
Objectants finally contend that Bialkowski "does not possess the qualifications required of a fiduciary by reason of dishonesty, improvidence, or is otherwise unfit for the office of Executor" because of various allegations against him. The burden of proof of establishing ineligibility is on the party alleging it. See Matter of Krom, 86 A.D.2d 689 [1982].
Testators have the right to select the person or persons whom they feel confident would be most suitable to execute their Will and settle their affairs (see Matter of Cohen, 254 A.D. 571 [1938], aff'd, 278 NY 584 [1938]; see also Matter of Leland, 219 NY 387 [1916]). Under SCPA 707[d], letters testamentary may be issued to any natural person except for "one who does not possess the qualifications required of a fiduciary by reason of substance abuse, dishonesty, improvidence, want of understanding, or who is otherwise unfit for the execution of the office." All of these grounds contemplate disqualification where such a fiduciary might jeopardize estate property and should, therefore, not be entitled to serve (see Matter of Gottlieb, 75 A.D.3d 99, 107 [2010]; see also Matter of Flood, 236 NY 408 [1923]).
In Matter of Kalikow, 2008 NY Misc. LEXIS 8129 [dec. Dec. 16, 2008], objectant-beneficiaries urged that former priest, James DeVita, was unfit to serve as fiduciary of decedent's estate because of allegations of child sexual abuse against him. Nassau County Surrogate's Court explained that, in addition to satisfying SCPA 707, "objectants must make a showing that the assets of the estate would be in jeopardy in the hands of the petitioner":
"Objectants have failed to demonstrate how an allegation of sexual abuse which took place over 30 years ago bears on DeVita's fitness to serve as fiduciary. This court is not the proper forum to adjudicate an allegation of sexual abuse. Under such circumstances, the selection of the testator to determine who is most suitable to settle her estate should not lightly be disregarded (Matter of Flood, 236 NY 408, 410 [1923]; Matter of Venezia, 25 A.D.3d 717 [2d Dept 2006])."
As in Kalikow, objectants here have not shown that Bialkowski will jeopardize the assets of the decedent's estate because of allegations of sexual abuse made against him.
I conclude, therefore, that the objection regarding Bialkowski's fitness to serve as executor of the decedent's estate must be dismissed.
(E)
Accordingly, Bialkowski's motion for summary judgment dismissing all objections to probate of decedent's Will must be, and it hereby is, granted, decedent's Last Will and Testament, dated November 2, 2016, is admitted to probate, and letters testamentary shall issue to Bialkowski forthwith, with the preliminary letters previously issued being revoked.
This decision shall constitute the Order of this Court and no other or further order shall be required.