Opinion
2019-117
08-05-2020
PROBATE PROCEEDING, Will of Russell Van Horn a/k/a, Russell L. Van Horn Sr., Deceased.
Kiel Van Horn, Esq., 18 East Broome Street, P.O. Box 814, Port Jervis, NY 12771, Attorney for Petitioner Vern Lazaroff, Esq., 143 Pike Street, P.O. Box 1108, Port Jervis, NY 12771, Attorney for Objectant
Kiel Van Horn, Esq., 18 East Broome Street, P.O. Box 814, Port Jervis, NY 12771, Attorney for Petitioner
Vern Lazaroff, Esq., 143 Pike Street, P.O. Box 1108, Port Jervis, NY 12771, Attorney for Objectant
Timothy P. McElduff, Jr., S.
The following papers were read and considered on Petitioner's motion pursuant to CPLR § 3212(b) for an Order granting summary judgment admitting the Last Will and Testament of Russell L. Van Horn dated January 15, 2019 to probate and dismissing the objections to probate filed herein:
1. Petitioner's Notice of Motion dated June 23, 2020, Memorandum/Affirmation in Support of Kiel Van Horn, Esq. dated June 23, 2020 together with Exhibits A through I, Affidavit of Krista Van Horn sworn to on June 23, 2020, Affidavit of Linda Van Horn sworn to on June 22, 2020;
2. Affirmation in Opposition of Vern Lazaroff, Esq. (undated, no exhibits), Affidavit of Tammy Long sworn to on July 15, 2020 (no exhibits);
3. The contents of the Surrogate's Court file in this matter, of which the Court takes judicial notice.
BACKGROUND
Decedent Russell L. Van Horn died on January 19, 2019, leaving a document purported to be a last will and testament dated January 15, 2019 (the "January 15th Will"). The January 15th Will revoked another purported will executed the previous day on January 14, 2019 (the "January 14th Will").
The following facts are not disputed. During January 2019, the Decedent had been hospitalized at the Orange Regional Medical Center as a result of deteriorating health caused by cancer. Decedent's sister, Linda Van Horn, asked her nephew and attorney, Kiel Van Horn, Esq., to arrange to speak to the Decedent concerning his testamentary wishes. On January 14, 2019, Kiel Van Horn spoke with the Decedent, prepared a draft will, power of attorney and health care proxy and met with the Decedent, in his hospital room, on the same day. Kiel Van Horn helped the Decedent to make handwritten, initialed changes to the draft will, which was then executed, becoming the January 14th Will.
The January 14th Will bequeathed the Decedent's real property at 21 Farnum Street, Port Jervis, New York to Petitioner/Executrix Krista Van Horn and Heather Van Horn, who are granddaughters of the Decedent. It further bequeathed hunting rifles and other gear, trophies and taxidermy to Krista Van Horn.
To Objectant Tammy Long, the January 14th Will bequeathed a 1/5 share of the residue/remainder of the estate.
On January 15, 2019, Kiel Van Horn drafted a new will (i.e., the January 15th Will), which incorporated the January 14th Will's handwritten changes into the typewritten body of the new will, in order to avoid any potential dispute concerning handwritten changes. That same day, Kiel Van Horn took the January 15, 2019 will to the Decedent at Orange Regional Medical Center, who executed it. By its terms, the January 15th Will revokes the prior January 14th Will.
In her Objection to Probate, Objectant Tammy Long alleges that the January 15th Will was not duly executed by the Decedent, in that he lacked capacity to execute it, that he executed it under duress/undue influence and/or that he executed it upon actual or constructive fraud.
ANALYSIS
A. Petitioner's burden to demonstrate due execution and testamentary capacity
Generally, the decision to dismiss objections and to admit a will to probate lies within the sound discretion of the trial court and will remain undisturbed absent a finding of abuse of its discretion. In re Estate of Young , 289 AD2d 725, 738 (3d Dept. 2001).
Even with the lack of any objections to the validity of a will, a court must inquire to the genuineness of the will and the validity of its execution, as well as the competency or capacity of the testator. See SCPA § 1408(1), (2).
"When an attorney drafts a will and supervises its execution, a presumption of regularity is raised that the will was properly executed." In re Estate of Leach , 3 AD3d 763, 764 (3d Dept. 2004) ; In re Mooney , 74 AD3d 1073, 1074 (3d Dept. 2010). Additionally, "A valid attestation clause raises a presumption of a will's validity, [but] it is nonetheless incumbent upon [the] Surrogate's Court to examine all of the circumstances surrounding the execution of the document in order to ascertain its validity". In re Costello , 136 AD3d 1028, 1028 (2d Dept. 2016).
With regard to testamentary capacity, there is a general presumption that the testator possesses the requisite testamentary capacity to make a valid will until it is proven otherwise. Matter of Beneway , 272 AD 463 (3d Dept.1947). Furthermore, a presumption and prima facie case of testamentary capacity is created "[w]hen an attorney drafts a will and supervises its execution." In re Estate of Nofal , 35 AD3d 1132, 1134 (3d Dept. 2006). Additionally, an affidavit of the attesting witnesses, who state that testator appeared to be of sound mind and memory to make a will, creates a presumption of testamentary capacity. In re Estate of Friedman , 26 AD3d 723 (3d Dept. 2006) ; In re Estate of Castiglione , 40 AD3d 1227 (3d Dept. 2007).
General allegations or conjecture concerning the decedent's lack of testamentary capacity are insufficient to raise a triable issue of fact and avoid summary judgment. In re Rosen , 291 AD2d 562, 562 (2d Dept. 2002) ; see e.g. , In re Estate of Hirschorn , 21 Misc 3d 1113(A) (Sur. Ct., Westchester Co., 2008) (finding that objectant's allegations and observations as to the decedent's mental and physical condition in opposing dismissal of her objections that decedent lacked testamentary capacity were conclusory and/or wholly speculative and, therefore, insufficient to raise legitimate factual issues pertaining to capacity).
Specifically, the appropriate inquiry is "whether the decedent was lucid and rational at the time the will was signed." Matter of Estate of Giaquinto , 164 AD3d 1527, 1529 (3d Dept. 2018), aff'd, 32 NY3d 1180 (2019). Thus, even the fact that decedent might have been confused or disoriented within a period relatively close in time to when the will was executed does not mandate denial of the will to probate if the will was executed during a "lucid interval." See , In re Rabbitt , 21 Misc 3d 1118(A) (Sur. Ct., Kings Co., 2008).
Here, the January 15th Will was prepared by, and executed under, the supervision of attorney-draftsman Kiel Van Horn, Esq. Further, the attestation and affidavit of the attesting witnesses demonstrate that the Decedent validly executed the January 15th Will with sufficient testamentary capacity and freedom from duress at the time of its preparation and execution. As a result, the Petitioner has established, prima facie , the Decedent's testamentary capacity, as well as the January 15th Will's genuineness and due execution. Furthermore, upon the Court's inspection, the January 15th Will satisfies all writing, signature, attestation and witness requirements of EPTL § 3-2.1.
Having demonstrated the prima facie validity of the January 15th Will, the burden now shifts to the Objectant to raise a genuine issue of fact as to the will's validity. In re Estate of Murray , 49 AD3d 1003, 1005 (3d Dept. 2008).
Regarding due execution, the Objectant merely alleges that the January 15th Will "was not duly executed by the decedent." (See Objection to Probate, ¶1). In opposition to Petitioner's motion for summary judgment, the Objectant argues that the will signed on January 14th was not signed in front of the attesting witnesses. (See Long Affidavit). The Objectant draws this conclusion because, when she arrived at Orange Regional Medical Center on January 14th, she saw that Kiel Van Horn, his secretary Jennifer Malzahn and the Petitioner were already there visiting the Decedent, who had already executed the January 14th Will, a Power of Attorney and a Health Care Proxy. In contrast, the Objectant notes that attesting witness Gabriel Morrow was not there when she arrived, thus alleging, by implication, that Gabriel Morrow did not witness the Decedent execute his will (at the time of its execution) before the Objectant arrived. (See Long Affidavit). Notably, the Objectant does not state that she actually reviewed the will upon her arrival or that she personally saw that the attesting witness signatures were missing when she arrived. Instead, the Objectant claims that Kiel Van Horn, the Petitioner and witnesses Gabriel Morrow and Jennifer Malzahn returned later that evening (after Objectant had left) and completed the attesting witness signatures at that time. Just as the Objectant never states that she saw missing witness signatures on the will itself, the Objectant does not state that she personally saw the witnesses come back to the Decedent's room lend their witness signatures ex post facto . (See Long Affidavit). As a result, the Objectant's argument that the will was improperly witnessed is completely surmised rather than factually supported.
Furthermore, while Objectant's arguments in opposition to summary judgment are focused on the witness signatures upon the January 14th Will, it is the January 15th Will (which revoked the former) that is being probated in this proceeding. If Objectant's reference to 14th (versus the 15th) is a typo, it matters not, for Objectant's arguments concerning due execution of the will, regardless of the date of the will, are conclusory conjecture nonetheless.
Regarding testamentary capacity, the Objectant merely alleges that, on January 15, 2019, the Decedent was "not of sound mind or memory, and was not mentally competent to make a Will." (See Objection to Probate, ¶2). In opposition to Petitioner's motion for summary judgment, Objectant states that the Decedent "seemed to be extremely confused by pain medication and brain cancer [on January 14th, during her visit]" and failed to make provision in his will for one of his daughters, non-party Bryanna Decker. (See Long Affidavit). Significantly, the Objectant failed to submit any expert testimony or documentary proof pertaining to the Decedent's testamentary capacity.
Here, in opposition to the Petitioner's prima facie demonstration of testamentary capacity at the time of the January 15th Will's execution, the Objectant offers nothing more than general allegations or conjecture concerning the Decedent's mental/physical condition on January 14, 2019, which, furthermore, does not sufficiently or specifically relate to the Decedent's mental/physical condition on day or time he executed the will on January 15, 2019. Additionally, while the Objectant emphasizes that the January 15th Will contains no explanation as to why one of the Decedent's daughters was not included in the will, such an argument has no bearing upon testamentary capacity as a matter of law. See, Prob. Proceeding, Will of Fiorentino , 65 Misc 3d 1236(A) (Sur. Ct., New York Co., 2019) (holding that, contrary to the objectant's belief, there is no requirement that a will explain the disinheritance of a family member; further holding that the objectant's argument was based upon mere surmise and failed to raise any triable issue of fact as to whether decedent lacked testamentary capacity).
Finally, the Court notes that, despite no fewer than four Scheduling Orders in this proceeding, the Objectant has failed to examine any witnesses or even demand such examinations or the production of documents in discovery. As a result, the Objectant has waived her rights to any such examinations or discovery in this proceeding. See e.g., Mayo v. Lincoln Triangle Assocs., Inc. , 248 AD2d 362, 363 (2d Dept. 1998).
B. Objectant's burden to demonstrate fraud.
To prove fraud, an objectant to a will must show by clear and convincing evidence that a knowingly false statement was made to the testator that induced him/her to make a will disposing of his/her property differently than he/she would have if he/she had not heard the fraudulent statement. In re Will of Butner , 40 Misc 3d 1217(A) (Sur. Ct., Nassau Co., 2013) ; In re Will of Iwachiw , 40 Misc 3d 1211(A) (Sur. Ct., Queens Co., 2013).
A court properly dismisses a fraud objection when the objectant fails to submit any evidence that someone knowingly made a false statement to the testator which caused her to execute a will that disposed of her property in a manner differently than she would have in the absence of that statement. In re Zirinsky , 43 AD3d 946, 948 (2d Dept. 2007). Conclusory and speculative evidence that someone made a false statement does not raise a triable issue of fact. In re Will of Ryan , 34 AD3d 212, 215 (1st Dept. 2006). Furthermore, without a showing that fraud was actually exercised upon the decedent, evidence that opportunity and motive existed to perpetrate a fraud will not suffice to raise a triable issue as to whether the will reflected the intent of the testator. In re Zirinsky , 43 AD3d at 948 ; In re Rosen , 291 AD2d 562, 563 (2d Dept. 2002) (finding that an objectant failed to sustain the burden of raising triable issues of fact with respect to claims of fraud when the objectant merely alleged, in conclusory fashion, that the decedent must have been a victim of fraud due to the decedent's poor health).
Here, the Objectant merely alleges that the Decedent's will or its execution was "caused or procured by actual or constructive fraud practiced by Krista Van Horn and Heather Van Horn ..." (See Objection to Probate, ¶4). In opposition to Petitioner's motion for summary judgment, the Objectant fails to submit any evidence of a fraudulent statement or document presented to the Decedent, whatsoever. Furthermore, at best, the Objectant's affidavit in opposition states that the Decedent was in poor health and implies that an opportunity for fraud may have existed; however, without submitting (1) evidence of a prima facie fraud and (2) showing that the fraud was actually exercised upon the decedent, the Objectant's mere suggestion that an opportunity for fraud may have existed, and conclusion that it did, will not suffice to raise a triable issue of fact regarding actual fraud.
"Under the doctrine of ‘constructive fraud,’ where a confidential relationship exists between two parties to a transaction such that they were dealing on unequal terms due to one party's weakness, dependence or trust justifiably reposed upon the other and unfair advantage is rendered probable, the burden of proof with respect to allegations of undue influence will be shifted to the stronger party to show, by clear and convincing evidence, that no undue influence was used." In re Estate of Nealon , 104 AD3d 1088, 1088—89, (3d Dept. 2013) [internal quotations omitted], affd., 22 NY3d 1045 (2014). Further, "In determining whether a confidential relationship exists, the existence of a family relationship does not, per se, create a presumption of undue influence; there must be evidence of other facts or circumstances showing inequality or controlling influence." In re Estate of Nealon , 104 AD3d at 1089 (3d Dept. 2013) [internal quotations omitted]. To the contrary, a family relationship counterbalances any contrary legal presumption and explanation by the accused beneficiary is not required. In re Zirinsky , 10 Misc 3d 1052(A), (Sur. Ct., Nassau Co., 2005), affd., 43 AD3d 946 (2d Dept. 2007) ; Matter of Estate of Swain , 125 AD2d 574, 575 645 (2d Dept. 1986) ; see e.g. , In re Jacobs , No. 2011-367869/A, 2015 WL 4558716, at *8 (Sur. Ct., New York Co., 2015) (holding that, "Without some showing of evidence, this court is unwilling to infer constructive fraud based upon the fact that decedent depended upon his wife of over 70 years or chose to confide in his daughter"; granting summary judgment for dismissal of the objection of constructive fraud); In re MacGuigan , No. 2012-1344, 2015 WL 1756205, at *1 (Sur. Ct., New York Co., 2015) (holding that, even if confidential relationship existed, due to family-like relationship, no inference of undue influence would arise which would require further justification from proponent or diminish the burden of objectant to make a showing of a triable issue of fact to defeat summary judgment). To be clear, such, "lawful influences that arise from 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. of New York v. Loveridge , 70 NY 387, 395 (1877).
Here, the Objectant accuses Proponent Krista Van Horn and beneficiary Heather Van Horn of "constructive fraud," without more. Based upon that lone, conclusory allegation, not to mention the grandfather/granddaughter relationship between the Decedent and Proponent Krista Van Horn and beneficiary Heather Van Horn, no presumption of constructive fraud arises, no burden of proof shifts to the Proponent and no triable issue of fact precludes summary judgment.
C. Objectant's burden to demonstrate undue influence
"Undue influence" is the exercise of coercion upon the testator, which restrains the testator's independent action and destroys his or her free agency, or which, by importunity which cannot be resisted, constrains the testator to do that which is against his or her own free will. Estate of Kumstar , 66 NY2d 691, 693 (1985).
Undue influence is a fact which must be proved by the objectant and not merely assumed to exist. In re Henderson's Will , 253 AD 140, 145 (4d Dept. 1937).
To prove undue influence, the objectant must demonstrate that the decedent was actually constrained to act against his or 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. In re Estate of Turner , 56 AD3d 863, 865—66 (3d Dept. 2008). Absent specificity as to times, dates and places, an objectant's conclusory allegations and speculation are insufficient to raise an issue of fact as to acts of undue influence or fraud. In re Estate of Turner , 56 AD3d at 865—66.
"Significantly, a mere showing of opportunity and even of a motive to exercise undue influence does not constitute prima facie evidence of undue influence unless there is in addition evidence that such influence was actually utilized." Lewis v. DiMaggio , 151 AD3d 1296, 1299 (3d Dept. 2017).
"While undue influence can rarely be shown by direct proof, there must be affirmative evidence of facts and circumstances from which the exercise of such undue influence can fairly and necessarily be inferred." Matter of Malone , 46 AD3d 975, 977 (3d Dept. 2007). Although circumstantial evidence may be used, it does not lessen the heavy burden placed upon the objectant: "[Undue influence] may be proved by circumstantial evidence, but the circumstances must lead to it not only by fair inference but as a necessary conclusion. To avoid the will of a competent testator on the ground of undue influence, the contestant must show facts entirely inconsistent with the hypothesis of the execution of the will by any means other than undue influence." In re Henderson's Will , 253 AD 140, 145 (4d Dept. 1937).
Circumstantial evidence of undue influence may consist of a combination of the following factors, among other things: the nature of the will, family relations, the condition of the testator's health and mind, the testator's dependency upon and subjection to the control of the person supposed to have wielded the influences, the opportunity and disposition of the person to wield it, and the actual actions and declarations of such person. In re Will of Ryan , 34 AD3d 212, 213 (2d Dept. 2006). However, if such circumstantial evidence is offered, (1) it must be of a substantial nature and (2) if the circumstantial evidence would support conflicting inferences, a conclusion of undue influence cannot be made. In re Will of Ryan , 34 AD3d at 213 ; Matter of Walther , 6 NY2d 49, 54 (1959).
Critically, however, a circumstantial case of undue influence must include a demonstration of acts or circumstances showing that undue influence was actually exerted. See, e.g., Matter of Estate of Antoinette , 238 AD2d 762 (3d Dept. 1997) (undue influence found where: [1] abrupt and otherwise unexplained changes in decedent's behavior, beliefs and attitudes, culminating in a radical alteration of her testamentary disposition, shortly after petitioner began taking an active role in decedent's day-to-day affairs; [2] petitioner's sudden intense interest in decedent's financial circumstances, and the fact that she was overheard actually pressing her 90—year—old aunt to take certain actions with respect thereto; [3] decedent's apparent uncertainty and lack of understanding of some of the transactions she purportedly sought to effect with petitioner's assistance—that suggests that the July will does not truly reflect the independent testamentary intentions of decedent; holding that, collectively, these elements demonstrate not only that petitioner had the motive and the opportunity to influence decedent, but that she actually wielded that influence); see also Matter of Panek , 237 AD2d 82 (4d Dept. 1997) (undue influence found where: [1] sister received a larger portion of the estate under the will than she would have under the laws of intestacy, [2] the testator was in fragile physical and mental state when the will was executed, [3] the testator was living with his sister, who monitored and regulated the number and frequency of the testator's visitors and threatened to put the testator in a nursing home if he disagreed with her decisions, [4] the sister had continually hounded the testator to make a will, and [5] the attorney who drafted the will was the sister's long-time family attorney and had no prior dealings with the testator); see also In re Bogen , No. 2011-761, 2014 WL 5827936 (Sur. Ct., New York Co., 2014) (undue influence found where: [1] influencer cut-off the testator from his communication with friends and family and regular activities, [2] testator began to spend money on the influencer and third parties as he never did before, and began incurring debts that he never had before; [3] influencer was observed to be domineering over and abusive towards the testator; [4] testator suffered from physical and mental ailments related to age).
In contrast, summary judgment will be granted to dismiss an undue influence objection where the alleged undue influence is merely speculative or conclusory. See, e.g., In re Dubin , 54 AD3d 945 (2d Dept. 2008) (objectant had no personal knowledge of a specific instance of undue influence being exercised over the decedent, and rather, testified that it was the "overall atmosphere" surrounding the situation that led her to believe that there may have been undue influence; petitioner/influencer's statement to the testator that the objectant would spend an inheritance in a frivolous manner, i.e., leaving it "to the dogs and to the cats" constituted a speculative allegation of undue influence that was insufficient to raise a triable issue of fact); see also In re Estate of Turner , 56 AD3d 863, 866 (3d Dept. 2008) ("The only allegations of undue influence by petitioner during the relevant time period are that petitioner accused respondent of stealing at the January 1999 family meeting, and that she recommended a new attorney for decedent, accompanied decedent to the attorney's office, and was present when the will was executed. In our view, this circumstantial evidence supports conflicting inferences ‘such that a conclusion of undue influence may not be drawn’ "); see also Lewis v. DiMaggio , 151 AD3d 1296, 1300 (3d Dept. 2017) ("Although Lewis opined that decedent was forgetful and exhibited unusual behavior in the years prior to her death at the age of 90, she continued to live independently in her own home and there is no allegation that decedent was susceptible to verbal suggestion or easily manipulated... Bare assertions that defendants made misrepresentations to decedent to cause her to establish her testamentary trust and to favor her sisters over her adopted children with whom she had developed a strained relationship ‘fail to demonstrate that any undue influence was actually asserted’ "); In re Rosen , 291 AD2d 562, 563 (2d Dept. 2002) (general, conclusory allegations concerning the decedent's poor health failed to raise any triable issue of fact concerning undue influence or fraud); see also In re Prob. Proceeding Will of Mancuso , 196 Misc 2d 897, 903 (Sur. Ct., Kings Co., 2003) ("The giving of advice and the use of argument and persuasion do not constitute grounds for avoiding a will made by a competent testatrix, even if the will was made in conformity with the advice so given.").
Here, the Objectant offers a bare allegation that there was "undue influence practiced upon the decedent by Krista Van Horn and Heather Van Horn, and by some other person or persons, acting independently, or in concert, or in privaty [sic] with him or her." (Objections to Probate, ¶3). In opposition to Petitioner's motion for summary judgment, the Objectant adds that, "Krista was in the hospital room with my father when he signed it on the 14th of January 2019. My father, however, had told me repeatedly that I was to share in the house with my two nieces Krista VanHorn and Heather VanHorn as I did not have a house of my own and he wanted me to have a place to live for the rest of my life." (Long Affidavit, ¶5). Further, the Objectant complains that one of Decedent's daughters, non-party Bryanna Decker, was omitted from the will and, therefore, "Clearly my father was not the one who was dictating the terms of the will and if [sic] was his failure to include Bryanna demonstrates his mental incapacity." (Long Affidavit ¶5).The Objectant's averments, however, are conclusory and speculative, in that the Objectant only identifies a potential opportunity for undue influence to exist, but not the details of the facts and circumstances comprising the undue influence or, critically, the actual exertion of undue influence over the Decedent. Additionally, it is important to point out that the Objectant's undue influence argument is directed at the will execution on January 14, 2019 , not the January 15th Will sought to be probated here; however, such barren allegations would still be insufficient even if directed at the January 15th Will. Furthermore, the Decedent's alleged statements to the Objectant, to the effect that he intended the Objectant to receive an interest in the house, the only proof of which is Objectant's own self-serving statement, is barred/inadmissible pursuant to the "dead man's statute," CPLR § 4519 and insufficient to defeat Petitioner's motion for summary judgment. See e.g., In re Estate of Fellows , 16 AD3d 995, 997 (3d Dept. 2005) (applying CPLR § 4519 and granting summary judgment dismissing undue influence objection).
CONCLUSION
For the reasons cited herein, Petitioner's motion for summary judgment admitting the Last Will and Testament of Russell L. Van Horn dated January 15, 2019 is granted, said Will is hereby admitted to probate and, consistent therewith, Letters Testamentary shall thereupon issue to the nominated Executrix, Krista Van Horn, without bond.
Further, the Objection to Probate by Objectant Tammy Long verified on December 17, 2019, containing all of the above-discussed objections to probate, is denied and dismissed in its entirety.
A Decree admitting the Will dated January 15, 2019 to probate shall issue in conformity herewith.
This constitutes the Decision and Order of the Court.