Opinion
2011-10-25
In the Matter of Joseph ANELLA, deceased.Louise Anella Bartelli, proponent-respondent;Joseph Anella, Jr., objectant-appellant.
Alexander M. Dudelson, Brooklyn, N.Y., for objectant-appellant.Cye Ellis Ross, New York, N.Y. (Steven B. Sarshik of counsel), for proponent-respondent.
Alexander M. Dudelson, Brooklyn, N.Y., for objectant-appellant.Cye Ellis Ross, New York, N.Y. (Steven B. Sarshik of counsel), for proponent-respondent.
In a contested probate proceeding, the objectant appeals from a decree of the Surrogate's Court, Kings County (Lopez Torres, S.), dated June 30, 2010, which, upon an order of the same court dated June 3, 2010, inter alia, granting those branches of the proponent's motion which were for summary judgment dismissing his objections to probate of a will based on lack of testamentary capacity and undue influence, admitted the will to probate.
ORDERED that the decree is affirmed, with costs payable by the objectant personally.
Joseph Anella (hereinafter the decedent) had five children, Joanne, Theresa, Joseph, Jr. (hereinafter the objectant), Louise (hereinafter the proponent), and Margaret. The decedent executed a will in 2001 by which he bequeathed his house to the proponent and Margaret, and a television and certain bank accounts to the objectant.
In 2002, a family dispute occurred in which the objectant raised a chair over his head in the presence of the decedent, causing damage to the decedent's home. Thereafter, the decedent advised friends that he was afraid that the objectant intended to harm him.
In 2005, the decedent retained an attorney to draft a new will (hereinafter the 2005 will), which did not contain any bequests to the objectant or Theresa. Both the attorney-drafter, who met with the
decedent privately during the course of drafting the 2005 will, and a psychiatrist who evaluated the decedent at the suggestion of the attorney-drafter before the 2005 will was prepared, opined that the decedent understood who his heirs were and was able to make decisions with respect to the distribution of his estate.
The 2005 will was executed on October 24, 2005, before two attesting witnesses, the attorney-drafter and his secretary. The 2005 will appointed the proponent as the executor of the estate, and divided the residuary estate equally between Margaret and Joanne, after the payment of the decedent's debts and funeral expenses. The 2005 will made no provision to the objectant or Theresa.
On November 14, 2006, the decedent passed away, survived by all five of his children. On March 6, 2007, the proponent filed a petition for probate of the 2005 will and for letters testamentary. The objectant filed objections to probate, alleging, inter alia, lack of testamentary capacity and undue influence. The proponent moved for summary judgment dismissing the objections to probate.
In support of her motion, the proponent submitted, inter alia, the deposition testimony of one of the attesting witnesses, the affidavit of the attorney-drafter, the self-proving affidavit annexed to the will, the affirmed report of the psychiatrist who evaluated the decedent, and the affidavits of family and friends, all of whom averred that the decedent was competent and aware of the extent of his property and intended to disinherit the objectant and Theresa. Consequently, the proponent established that the decedent had testamentary capacity at the time he executed the 2005 will by demonstrating that he understood the nature and consequences of making the will, the nature and extent of his property, and the natural objects of his bounty ( see Matter of Kumstar, 66 N.Y.2d 691, 692, 496 N.Y.S.2d 414, 487 N.E.2d 271; Matter of Scher, 74 A.D.3d 827, 828, 903 N.Y.S.2d 900; Matter of Malan, 56 A.D.3d 479, 479–480, 866 N.Y.S.2d 774; Matter of Tuccio, 38 A.D.3d 791, 792, 832 N.Y.S.2d 609). In opposition to the proponent's prima facie showing of entitlement to judgment as a matter of law dismissing the objection alleging that the decedent lacked testamentary capacity, the objectant failed to raise a triable issue of fact ( see Matter of Kumstar, 66 N.Y.2d at 692, 496 N.Y.S.2d 414, 487 N.E.2d 271; Matter of Scher, 74 A.D.3d at 828, 903 N.Y.S.2d 900; Matter of Malan, 56 A.D.3d at 480, 866 N.Y.S.2d 774; Matter of Tuccio, 38 A.D.3d 791, 832 N.Y.S.2d 609).
The proponent also established that the 2005 will was not the product of undue influence by the proponent over the decedent ( see Matter of Eastman, 63 A.D.3d 738, 740, 880 N.Y.S.2d 157; Matter of Klingman, 60 A.D.3d 949, 950, 875 N.Y.S.2d 554). Even if the proponent had a confidential relationship with the decedent because she cared for him and took care of his financial affairs, such relationship is counterbalanced by the close family relationship which existed between them ( see Matter of Scher, 74 A.D.3d at 828, 903 N.Y.S.2d 900; Matter of Zirinsky, 43 A.D.3d 946, 948, 841 N.Y.S.2d 637; Matter of Swain, 125 A.D.2d 574, 575, 509 N.Y.S.2d 643). In opposition to the proponent's prima facie showing of entitlement to judgment as a matter of law dismissing the objection alleging undue influence, the objectant failed to raise a triable issue of fact ( see Matter of Scher, 74 A.D.3d at 828, 903 N.Y.S.2d 900; Matter of Zirinsky, 43 A.D.3d at 949, 841 N.Y.S.2d 637).
Accordingly, the Surrogate's Court properly granted those branches of the proponent's motion which were for summary judgment dismissing the objections
to probate based on lack of testamentary capacity and undue influence, and admitted the will to probate.