Opinion
308646.
February 23, 2009.
In this contested probate proceeding, the proponent moves for an order pursuant to CPLR 3212 granting summary judgment dismissing objections to the offered will and admitting it to probate.
INTRODUCTION
Hildegard Wonneberger died on March 19, 2006. Decedent had no issue nor any known relatives. Helga O'Brien was named as the sole residuary beneficiary in a prior will of the decedent dated December 1, 1993. Helga is the daughter of the decedent's predeceased husband, Paul Wonneberger, who died on November 3, 1998.
The will offered for probate dated April 6, 1999 bequeaths one-half of decedent's residuary estate to Maria Ries, a long-time friend who resides in Germany, one-quarter to Julie Capul, a neighbor, and one-quarter to Rosa Barukh, a neighbor. Gisela Brady, a friend, is the nominated executor and the proponent.
In December 1998, Helga commenced a guardianship proceeding pursuant Article 81 of the Mental Hygiene Law in Supreme Court, Nassau County, alleging, among other things, that the decedent was incapable of managing her affairs. During the pendency of the guardianship proceeding, decedent executed a will dated January 11, 1999, in which she left her residuary estate to her friend, Maria Ries, $50,000.00 to Rosa Barukh and the sum of $1,000,000.00 to the American Red Cross. The January 1999 will was executed in the office of Maria Scorcia Myrick, the attorney who drafted the will. Ms. Myrick first represented the decedent in the guardianship proceeding. John Newman, the court evaluator appointed in the guardianship proceeding, reported to the Supreme Court that in his opinion, based on an interview with the decedent, decedent was not an incapacitated person and that no guardian was required. The guardianship proceeding was discontinued by stipulation dated March 22, 1999.
The propounded will dated April 6, 1999 was also prepared by Maria Scorcia Myrick. Ms. Myrick met with the decedent on at least four occasions between the January 1999 will and the April 1999 will. The propounded will eliminated the bequest to the American Red Cross, increased the bequest to Rosa Barukh and provided a bequest for Julie Capul. The will was executed in the decedent's home and the will's execution was supervised by Ms. Myrick.
As referenced above, the decedent had previously executed a will dated December 1, 1993 that left her entire estate to her husband, Paul, if living, or if not living, to Helga.
A second guardianship proceeding, commenced in July 2001 by Helga, resulted in an order and judgment dated October 20, 2001 appointing Helga guardian for the personal needs of decedent and James McGahan guardian for the property management of decedent.
OBJECTIONS
Helga has interposed the following objections dated October 3, 2007 to the propounded instrument:
"1) On the 6th day of April, 1999 the said decedent, Hildegard Wonneberger, was not of sound mind or memory and did not know the natural objects of her bounty or the nature and extent of her assets thereby rendering her incompetent to execute a last will and testament.
2) That the execution of the above-stated paper writing was not the free and voluntary act of the testatrix, but that the above-stated paper writing was procured by fraud practiced upon the testatrix by Rosa Barukh and Julie Capul, beneficiaries under purported Last Will and Testament of Hildegard Wonneberger, or by some other person or persons acting in concert or privity with them, whose name or names are at present unknown to the objectant.
3) That the execution of the above-stated paper writing was not the free and voluntary act of the testatrix, but that the above-stated paper writing was procured by undue influence practiced upon the testatrix by Rosa Barukh and Julie Capul beneficiaries under purported Last Will and Testament of Hildegard Wonneberger, or by some other person or persons acting in concert or privity with them, whose name and names are at present unknown to the objectant.
4) That the above stated paper writing does not reflect the testamentary intentions of the decedent."
THE MOTION
Petitioner's motion for summary judgment is supported by the following: the affidavits of petitioner, the attorney who drafted and supervised the execution of the propounded instrument, the court evaluator, the deposition testimony of the attesting witnesses, petitioner, objectant, the instrument offered for probate, copies of decedent's prior wills and the filed objections. Petitioner also submitted a memorandum of law.
Objectant's opposition to the motion consists of: an affirmation by counsel, the petitions in the guardianship proceedings, the stipulation of discontinuance of the 1998 guardianship proceeding, the deposition testimony of Julia Capul, Rosa Barukh, physicians' affirmations of Paul Weintraub, M.D. and Louis Gold, M.D., the affidavits of Liliana Gawrys and Angela Crescenzi and miscellanous items of correspondence.
Petitioner also submitted reply papers containing an affidavit of petitioner and a reply memorandum of law.
SUMMARY JUDGMENT
The proponent of a summary judgment motion must make a prima facie showing of entitled to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact ( Alvarez v Prospect Hop., 68 NY2d 320, 324). Failure to make such a prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers ( Winegrad v New York Univ. Med. Center, 64 NY2d 851, 853). Once this showing has been made, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action ( Zuckerman v City of New York, 49 NY2d 557, 562). Summary judgment in contested probate proceedings is appropriate where an objectant fails to raise any issues of fact regarding execution of the will, testamentary capacity, undue influence or fraud ( see e.g. Matter of DeMarinis 294 AD2d 436 [2d Dept 2002]; Matter of Rosen, 291 AD2d 562 [2d Dept 2002]; Matter of Bustanoby, 262 AD2d 407 [2d Dept 1999]). The remedy, however, is inappropriate where there are material issues of fact ( Matter of Pollock, 64 NY2d 1156).
TESTAMENTARY CAPACITY
The proponent has the burden of proving testamentary capacity. It is essential that a testatrix understand in a general way the scope and meaning of the provisions of her will, the nature and condition of her property and her relation to the persons who ordinarily would be natural objects of her bounty ( see Matter of Kumstar, 66 NY2d 691; Matter of Bustanoby, 262 AD2d 407 [2d Dept 1999]). A testatrix must understand the plan and effect of the will, and less mental faculty is required to execute a will than any other instrument ( see Matter of Coddington, 281 App Div 143 [3rd Dept 1952], affd 307 NY 181). Mere proof that the decedent suffered from old age, physical infirmity and progressive dementia is not necessarily inconsistent with testamentary capacity and does not preclude a finding thereof ( see Matter of Fiumara, 47 NY2d 845, 847; Matter of Hedges, 100 AD2d 586 [2d Dept 1984]) as the relevant inquiry is whether the decedent was lucid and rational at the time the will was made ( see Matter of Hedges, 100 AD2d 586 [2d Dept 1984]). "When there is conflicting evidence or the possibility of drawing inferences from undisputed evidence, the issue of capacity is one for the jury" ( Matter of Kumstar, 66 NY2d 691, 692 (1985]).
In the instant case, an affirmation of decedent's treating physician who examined decedent in connection with the first guardianship proceeding, an affirmation of an examining physician in connection with the second guardianship proceeding and affidavits of a home health aide and a neighbor have been submitted by objectant in support of her position. To demonstrate the testamentary capacity of decedent, petitioner relies on her own deposition testimony, the affidavit of the court evaluator in the first guardianship proceeding, the testimony of the attesting witnesses and the attorney who drafted and supervised the execution of the document. The affirmation of decedent's treating physician, Paul Weintraub, M.D. raises issues concerning decedent's cognitive ability. Dr. Weintraub states in his affirmation dated November 17, 1998, the following:
"[Decedent] has been a patient of [his] for the past ten years.
[Decedent suffers] from organic brain syndrome. [H]er ability to communicate is impaired leaving her with the ability to communicate clearly only on occasion.
The [Decedent] lacks the capacity to reason or make decisions. [Her] infirmities also render the [decedent] unable to manage her property and financial, affairs."
I am of the opinion that the condition of the [decedent] will not improve."
Dr. Weintraub recommended that the court find decedent to be an incapacitated person. The affirmation of Louis Gold, M.D. dated June 18, 2001 to the same effect, post-dates the execution of the will by approximately two years. Affidavits of individuals were also submitted by objectant detailing erratic behavior on the part of decedent in the months prior to the execution of the propounded will. Petitioner, however, paints the picture of decedent as a competent, independent individual through her own testimony based on her frequent conversations with decedent after decedent's husband's death, the testimony of the attorney who drafted the propounded instrument and who stated that decedent chose not to include her step-daughter in her will. The attorney-draftsman stated that decedent was upset that Helga had commenced the guardianship proceeding and was concerned about Helga trying to get her money. Based on the conflicting submissions submitted, it is concluded that there are triable issues of fact with respect to the issue of decedent's testamentary capacity.
FRAUD AND UNDUE INFLUENCE
The objectant bears the burden of proof on the separate issues of fraud and undue influence ( Matter of Gross, 242 AD2d 333 [2d Dept 1997]; Matter of Burke, 182 AD2d 260 [2d Dept 1981]). To prove fraud, the objectant must show by clear and convincing evidence that a false statement was made to the testator that induced her to make a will disposing of her property differently than she would have if she had not heard the statement ( Matter of Gross, 242 AD2d 333 [2d Dept 1997]; Matter of Coniglio, 242 AD2d 901 [2d Dept 1997]). There is simply no evidence that the will was the product of fraudulent conduct and, therefore, the objection on said ground is dismissed.
In order to prove undue influence, the objectant must show (1) the existence and exertion of an influence; (2) the effective operation of such influence as to subvert the mind of the testator at the time of the execution of the will; and (3) the execution of a will, that, but for undue influence, would not have been executed ( cf Matter of Walther, 6 NY2d 49). Undue influence can be shown by all the facts and circumstances surrounding the testator, the nature of her will, her family relations, the condition of her health and mind and a variety of other factors such as the opportunity to exercise such influence ( see generally 2 PJI, Civil, 7:55). It is seldom practiced openly, but it is the product of persistent and subtle suggestion imposed upon a maker fostered by the exploitation of a relationship of trust and confidence ( Matter of Burke, 82 AD2d 260 [2d Dept 1981]). Without a showing that it was actually exerted upon the decedent, mere speculation that opportunity and motive to exert such influence existed is insufficient ( Matter of Chiurazzi, 296 AD2d 406 [2d Dept 2002]; Matter of Herman, 289 AD2d 239 [2d Dept 2001]).
With the above in mind, it is important to reiterate that in order to defeat a motion for summary judgment, the objectant must demonstrate that there is a genuine triable issue by allegations which are specific and detailed, substantiated by evidence in the record and that mere conclusory assertions will not suffice ( S.J. Capelin Assoc. v Globe Mfg Corp, 34 NY2d 338; Matter of O'Hara, 85 AD2d 669 [2d Dept 1981]).
Helga argues that the confidential relationship that allegedly existed between the neighbors, Julia and Rosa, together with their involvement in decedent's affairs, is sufficient to deny the motion for summary judgment. Helga notes Rosa and Julia's increased involvement in decedent's day-to-day affairs including rendering assistance in shopping, banking, bill paying and healthcare after decedent's husband died. Julia also spoke to the decedent about making a new will. If a confidential relationship existed between Rosa and Julia and the decedent, then an inference of undue influence arises requiring an explanation for decedent's disposition (3 Warren's Heaton on Surrogate's Court Practice, § 42.07 [1][7th ed]). A confidential relationship may be inferred if the party so charged has disparate power and control over decedent ( Matter of Walther, 6 NY2d 49). Whether or not a confidential relationship existed between the decedent and a beneficiary is usually a question of fact ( Matter of Romano, 8 Misc 3d 1010A [Sur Ct, Nassau County 2005]). Under the circumstances, and given the magnitude of the bequests to the beneficiaries, triable issues of fact exist with respect to undue influence.
Accordingly, the proponent's motion for summary judgment dismissing the objections is granted to the extent of dismissing the objection of fraud and is otherwise denied.
The above constitutes the order of this court.