Opinion
2009-1924.
Decided August 4, 2011.
Juliet Kalib, Esq. for Renee Taylor, Proponent.
Alvin J. Thomas, Esq., for Rachel Taylor, Objectant.
In this probate proceeding, the nominated executor and sole beneficiary under the propounded instrument dated June 16, 2009, one of the decedent's two daughters, moves for summary judgment dismissing the objections filed by the decedent's other daughter. The objectant opposes the motion only insofar as it seeks summary judgment dismissing the objections alleging that the decedent did not sign the propounded instrument, contending that the decedent's signature is a forgery.
The decedent died on August 5, 2009 at the age of 64. Her distributees are the two daughters and a son. The six-page propounded instrument was attorney-drafted and supervised, witnessed by two witnesses, contains an attestation clause and annexes a self-proving affidavit. The estate is valued at $150,000, consisting of a one-half interest in a house located in Bronx, New York. It appears that by deed dated April 7, 1999, the decedent conveyed the other one-half interest in the house to the proponent. A prior testamentary instrument dated August 20, 1997 divides the residuary estate equally between her three distributees and one grandchild who is the objectant's son, as well as an adult who the decedent treated as a grandchild but who, according to both parties, is not a distributee. This instrument was never filed with the court.
In support of the motion the proponent asserts that: (1) there is a presumption that the will was properly executed and that the decedent had testamentary capacity as the will was drafted by one attorney, supervised by a different attorney, and the witnesses signed an attestation clause and a self-proving affidavit; (2) due to 1996 injuries to the decedent's wrist and more severe injuries to the same wrist on October 12, 2007, for which an action was commenced as evidenced by an annexed bill of particulars and other documents, the decedent's signature appeared much different after 2007 than it did on earlier documents; (3) in 2009 when the propounded instrument was executed, the decedent still attended to her own business affairs, went to doctor appointments, and shopped and visited friends; (4) the proponent was unaware that the decedent prepared and executed the propounded instrument, and was not present when the decedent met with either the drafting or supervising attorney; and, (5) the proponent and the decedent lived together for seven to eight years prior to the decedent's death and, for 10 to 15 years prior to the execution of the propounded instrument, the decedent loaned thousands of dollars to the objectant and the son, which sums were never repaid, causing an estrangement between the decedent and her two other children, who were not on speaking terms with the decedent at the time the propounded instrument was executed. The proponent also notes that except for referring to her objections, the objectant failed to provide any particulars in response to the proponent's interrogatories requesting additional facts to support the objections, including the allegations of a forgery.
In support, the proponent annexes the acknowledged deed dated April 7, 1999, the prior and propounded testamentary instruments and other documents, including a living will allegedly executed by the decedent on May 8, 2009 before two witnesses, granting only the proponent the authority over the decedent's health care. In further support, the proponent annexes: (1) the affirmation of the drafting attorney, Katrina Worrell Ballard, Esq., stating that she met with the decedent on March 31, 2009 and drafted the propounded instrument dated June 16, 2009, but she did not supervise its execution; and, (2) an affirmation by Doris E. Mortis, Esq., who works at the same law firm as the drafting attorney, stating that the union representing the decedent at her job was a client of the law firm and, on June 16, 2009, she met with the decedent to supervise the execution of the will, asked if the decedent reviewed the will and whether it accurately represented her wishes, and when the decedent responded affirmatively, the decedent and the witnesses signed the will and then the witnesses signed the attestation clause and the self-proving affidavit which she notarized.
Although the objectant initially interposed several objections to the will, she opposes only so much of the motion as seeks summary judgment dismissing the objections directed to the authenticity of the decedent's signature on the propounded instrument, and asserts that the signature is a forgery. In support, she annexes her affidavit and that of the son, both of whom state that they are familiar with their mother's signature, having seen it over 50 times since 1996, and the signature at issue does not resemble that with which they are familiar. The objectant and the son agree that the decedent's signature changed as a result of her 1996 wrist injury, but they insist that the decedent's signature did not change again after another injury to the same wrist in 2007. In support, the objectant annexes numerous documents bearing the decedent's signature, including: the August 20, 1997 testamentary instrument; the notarized April 7, 1999 deed; three notarized personal injury complaints executed by the decedent on June 19, 1996, December 1, 1998 and April 8, 2008; a notarized bill of particulars executed by the decedent on August 6, 1996; a December 1, 2007 letter signed by the decedent; and, an April 22, 2009 Medicare authorization/registration form containing an assignment and release as to medical benefits paid, signed by the decedent on April 22, 2009.
Summary judgment cannot be granted unless it clearly appears that no material issues of fact exist (see Phillips v Joseph Kantor Co., 31 NY2d 307; Glick Dolleck, Inc. v Tri-Pac Export Corp., 22 NY2d 439). The movant must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence in admissible form to demonstrate the absence of any material issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320; Friends of Animals, Inc. v Associated Fur Mfrs. Inc., 46 NY2d 1065). When the movant makes out a prima facie case, the burden shifts to the party opposing the motion to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact (see Zuckerman v City of New York, 49 NY2d 557). Summary judgment is a drastic remedy which requires that the party opposing the motion be accorded every favorable inference, and issues of credibility may not be determined on the motion but must await the trial (see F. Garofalo Elec. Co. v New York Univ., 300 AD2d 186).
In the overwhelming majority of cases where the objectant raises the issue of due execution, the objectant is relying upon a lack of compliance with the statutory formalities required under EPTL 3-2.1, and the objectant is not contesting the genuineness of the testator's signature. Nonetheless, the infrequency of objections alleging forgery does not change the law that the proponent has the burden of proof on all issues relating to due execution, including the genuineness of the testator's signature (see Matter of Shaver, 133 Misc 112, affd 227 App Div 646; Matter of Oliver, 126 Misc 511; Matter of Burtis, 43 Misc 437, 444, revd on other grounds 107 App Div 51; PJI 7:45; see also Matter of Fodera, 96 AD2d 559 [an alteration case]). Where, as here, the will is attorney drafted and executed under the supervision of an attorney, witnessed by two witnesses, has an attestation clause and annexes a self-proving affidavit, the proponent has made a prima facie case that the will was duly executed and that the testator, at the time of executing it, was in all respects competent to make a will and not under restraint (see Matter of Halpern, 76 AD3d 429, affd 16 NY3d 777; Matter of Schlaeger, 74 AD3d 405; see also SCPA 1408).
Although there are cases where, at first blush, the court appears to state that the objectant has the burden of proof on the issue of whether the testator's signature is a forgery, the more carefully crafted decisions note that the proponent made a prima facie case as to due execution, including the genuineness of the decedent's signature, so that the burden of going forward shifts to the objectant to create a triable issue of fact with respect to the forgery objections (see Matter of Herman, 289 AD2d 239, lv denied 97 NY2d 612; see also Matter of Ford, 26 Misc 3d 1213[A], 2010 NY Slip Op 50086 [U]). Thus, the issue herein is whether the otherwise unsupported self-serving, conclusory opinions of the two disinherited distributees, that the signature on the propounded instrument is not their mother's signature, suffices to create a material issue of fact with regard to the forgery allegation.
With respect to the opposing affidavits of the objectant and the son, as they have a direct financial interest in the outcome of the litigation, CPLR 4519 bars them from testifying about any personal transaction or communication with the decedent (see Phillips v Joseph Kantor Co., 31 NY2d at 307; Durazinski v Chandler, 41 AD3d 918, 920, quoting Matter of Johnson, 7 AD3d 959, 961, lv denied 3 NY3d 606), including testimony about the genuineness of the decedent's signature (see Matter of Press, 30 AD3d 154; Acevedo v Audubon Mgt. Inc., 280 AD2d 91; compare Trotti v Estate of Buchanan, 272 AD2d 660). Generally, evidence that is inadmissible at trial under CPLR 4519 cannot be used to support a motion for summary judgment; however, such evidence may be considered in determining whether a triable issue exists to defeat the motion for summary judgment (see Phillips v Joseph Kantor Co., 31 NY2d at 314; Beyer v Melgar, 16 AD3d 532; Salemo v Geller, 278 AD2d 104). Nonetheless, evidence otherwise excludable at trial may not form the sole basis for a court's determination, and standing alone, where it is clear that the movant would object to such testimony at trial, may be insufficient to defeat a motion for summary judgment (see Phillips v Joseph Kantor Co., 31 NY2d at 314; Marszal v Anderson, 9 AD3d 711; Mantella v Mantella, 268 AD2d 852; Matter of Barr, 252 AD2d 875; Matter of Lockwood, 234 AD2d 782; Matter of Recupero, 28 Misc 3d 1207[A], 2010 NY Slip Op 51200 [U]).
Two different attorneys, one who drafted the instrument and the other who supervised its execution, state that the will disposes of the testator's estate in accordance with her directions. The supervising attorney and the two attesting witnesses state that the testator, in fact, signed the will. Moreover, it appears that the proponent had no connection whatsoever with either the drafting or supervising attorney and that the testator went to the law firm to draft her will and supervise its execution because her union had an arrangement with that firm to prepare wills for union members. The objectant failed to offer any proof to rebut the proponent's proof that she was not in any way involved with the preparation or execution of the will and that she was not aware of its contents until after its execution. Notwithstanding that it is possible for a will to be denied probate on the ground of forgery based upon expert witnesses contradicting the sworn testimony of attorneys that the testator's signature is genuine (see Matter of Sylvestri, 44 NY2d 260) where, as here, the proponent has made a prima facie case as to the genuineness of the testator's signature, it is incumbent upon the objectant to furnish some particulars to create a triable issue of fact to support the forgery allegation (see Matter of Herman, 289 AD2d at 239; Uniform Rules for Surrogate's Court [ 22 NYCRR] § 307.23 [a] [2]).
Here, without any supporting expert opinion, the court cannot conclude that the exemplars of the testator's signature furnished by the objectant are sufficient independent proof to create a material issue of fact with respect to whether the testator's signature was forged. To the contrary, all that the court's admittedly untrained eye can deduce from the exemplars is that although all of the signatures clearly are not identical, they contain similarities. Consequently, considering that all parties agree that the testator's signature changed after suffering injuries to the wrist of her writing hand, and considering that a person's signature is not always identical, it was incumbent upon the objectant to produce independent proof of a forgery in addition to the conclusory, self-serving statement of herself and another disinherited distributee that the signature on the will is a forgery. Specifically, in Matter of Herman ( 238 AD2d at 239-240), the court in reversing the trial court's denial of the proponent's summary judgment motion stated:
"The petitioners demonstrated, prima facie, that the will was properly executed pursuant to the formal requirements set forth in EPTL 3-2.1. Where, as here, the attorney-draftsman supervised the will's execution, there is a presumption of regularity that the will was properly executed in all respects' (Matter of Finocchio, 270 AD2d 418; see, Matter of Esberg, 215 AD2d 655; Matter of Posner, 160 AD2d 943). In opposition, the objectants failed to raise a triable issue of fact as to whether the decedent's signature was a forgery. Where the objectant intends to offer proof that the instrument has been forged by another, the proponent is entitled to particulars of the forgery, and where known, the name and addresses of the person or persons who forged the instrument' (Matter of Di Scala, 131 Misc 2d 532, 534). Here, the objectants failed to provide any such particulars. Therefore, their claim of forgery did not warrant denial of the motion."
Here, the objectant has not even presented a theory with regard to either the identity of the alleged forger or a motive that would cause the two attorneys and two attesting witnesses to misrepresent the genuineness of the instrument. Accordingly, the proponent's motion to dismiss all of the objections to probate and to admit the propounded instrument to probate is granted.