Opinion
No. 2014–365.
12-14-2015
In the Matter of the Probate of the Last Will and Testament of Rochelle COOKSON, Deceased.
Richard E. Tanenbaum, Esq., Richard E. Tanenbaum Associates, LLP, Bayside, for Attorney for petitioner. Tor Jacob Worsoe, Jr., Law Office of Tor Jacob Worsoe, Jr. P.C., Holtsville, Attorney for respondent.
Richard E. Tanenbaum, Esq., Richard E. Tanenbaum Associates, LLP, Bayside, for Attorney for petitioner.
Tor Jacob Worsoe, Jr., Law Office of Tor Jacob Worsoe, Jr. P.C., Holtsville, Attorney for respondent.
PETER J. KELLY, S.
Petitioner Matthew Cookson, the son of decedent Rochelle Cookson, moves for summary judgment granting probate of an instrument dated March 14, 2012, and dismissal of the objections filed by the decedent's daughter, Cynthia Hegarty.
Decedent died on November 2, 2013 and was survived by her two children. On March 14, 2012 the decedent allegedly executed the instrument offered for probate in which she devised her house in Oakland Gardens, New York to petitioner and all the rest residue and remainder of her estate as follows: 65% to petitioner; 15% to the objectant; and 10% each to the objectant's two daughters, Brittiny Hegarty and Brandy Hegarty. The instrument nominated petitioner as executor and the objectant as substitute executor.
The objections of Cynthia Hegarty allege lack of due execution; lack of testamentary capacity; mistake; and that the instrument was obtained by fraud and/or undue influence.
Summary judgment may be granted only where it is clear that no triable issue of material fact exists (See: Alvarex v. Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923, 501 N.E.2d 572 ; Phillips v. Joseph Kantor & Co., 31 N.Y.2d 307, 338 N.Y.S.2d 882, 291 N.E.2d 129 ). Although summary judgment must be exercised cautiously, it is proper in a contested probate proceeding where the proponent submits a prima facie case for probate and the objectant fails to raise any genuine factual issues (Matter of Minervini, 297 A.D.2d 423, 745 N.Y.S.2d 625 ; Matter of Coniglio, 242 A.D.2d 901, 663 N.Y.S.2d 456 ). Indeed, summary judgment may be granted even where such proceedings involve issues of a fact-sensitive nature, such as fraud and undue influence (See: Matter of Neuman, 14 A.D.3d 567, 789 N.Y.S.2d 182 ; Matter of Goldberg, 180 A.D.2d 528, 580 N.Y.S.2d 655 ).
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, 418 N.Y.S.2d 76, aff'd 49 N.Y.2d 924, 428 N.Y.S.2d 675, 406 N.E.2d 490 ). Allegations must be specific and detailed, substantiated by evidence in the record; mere conclusory assertions will not suffice (Iselin & Co. v. Mann Judd Landau, 71 N.Y.2d 420, 527 N.Y.S.2d 176, 522 N.E.2d 21 ; Matter of Newman, 14 AD3d 567 ). The papers submitted in support of and in opposition to the motion are scrutinized in a light most favorable to the party opposing the motion. If there is any doubt as to the existence of a triable issue of fact, then the motion must be denied (Robinson v. Strong Memorial Hosp., 98 A.D.2d 976 ).
It is incumbent on the movant to make a prima facie showing that he is entitled to summary judgment as a matter of law (CPLR 3213[b] ; Zuckerman v. City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595, 404 N.E.2d 718 ; Friends of Animals v. Associated Fur Mfrs., 46 N.Y.2d 1065, 416 N.Y.S.2d 790, 390 N.E.2d 298 ; Matter of Coniglio, 242 A.D.2d 901, 663 N.Y.S.2d 456 ; Matter of Parravani, 211 A.D.2d 965, 621 N.Y.S.2d 714 ). If the movant meets his initial burden, it would then be incumbent upon the respondents to the motion to produce evidentiary proof in admissible form to raise a material issue of fact (Matter of Seelig, 302 A.D.2d 721, 756 N.Y.S.2d 305 ).
With respect to the branch of the motion regarding due execution, the objections allege that the decedent did not publish the instrument as her last will and testament; that the decedent did not request that the attesting witnesses sign the instrument as witnesses; that the witnesses did not sign as witnesses in her presence or in the presence of each other; and that the notarization of the self-proving affidavit annexed to the end of the instrument is defective.
Petitioner's motion papers included a copy of the instrument offered for probate, which contains an attestation clause indicating that the instrument was signed, sealed, published and declared by the decedent as her last will and testament in the presence of the witnesses, and that the witnesses, at the testator's request and in his presence and in the presence of each other, subscribed their names as witnesses. Where the attestation clause is full and the signatures genuine and the circumstances corroborative of due execution, there is a presumption that all the provisions of the statute were complied with, even where the witnesses are unable to recollect the execution or what took place at the time (In re Estate of Collins, 60 N.Y.2d 466, 470 N.Y.S.2d 338, 458 N.E.2d 797 ; Matter of Kellum, 52 N.Y. 517 ). Additionally, as the execution ceremony was supervised by an attorney, there is a presumption of due execution (see: Matter of Tuccio, 38 A.D.3d 791, 832 N.Y.S.2d 609 ).
A copy of the transcript of the SCPA 1404 examination of one of the attesting witness, Irene Kremka, was also submitted wherein she testified that the attorney who supervised the execution asked the testator if she reviewed the will and, after telling her she needs two witnesses, whether she would like "myself and Irene" to act as the witnesses. The testator responded in the affirmative to both inquiries. She also testified that she, the attorney and the testator were the only persons in the attorney's library during the execution of the instrument and that all three signed the instrument at that time. The objectant declined to take the testimony of the attorney-draftsman who was the second attesting witness, even though that witness was present and made himself available for examination.
Uncontroverted proof that the attorney-draftsman announced to the other subscribing witness, in decedent's presence, that decedent was executing a will is sufficient to satisfy the requirement of an express declaration (see: EPTL 3–2.1[a][3] ; Estate of Frank, 249 A.D.2d 893, 672 N.Y.S.2d 556 ). Furthermore, although decedent did not expressly request that either witness sign the will, "such a request may be inferred from [her] conduct and from circumstances surrounding execution of the will" (Matter of Buckten, 178 A.D.2d 981, 578 N.Y.S.2d 754 ; see: EPTL 3–2.1[a][4] ). Those circumstances include a request made by the attorney-draftsman, in the presence of decedent "and with (her) silent permission and approval," that the witnesses sign the will (see: Matter of Nelson, 141 N.Y. 152, 36 N.E. 3 ).
Accordingly, based on all the evidence submitted, the Court finds that the petitioner has submitted sufficient proof amounting to prima facie evidence that the instrument was duly executed pursuant to EPTL 3–2.1 (See: Matter of Halpern, 76 A.D.3d 429, 906 N.Y.S.2d 253 ). Petitioner having met his initial burden, it is now incumbent upon the objectant to produce evidentiary proof in admissible form to raise a material issue of fact (Matter of Seelig, 302 A.D.2d 721, 756 N.Y.S.2d 305 ).
The objectant has neither provided any facts contradicting the above, nor established that the self-proving affidavit annexed to the end of the will was defectively executed. In any event, a will need not have a self-proving affidavit in order to be valid. Pursuant to SCPA 1406, a self-proving affidavit may serve as evidentiary proof of a will's genuineness, the validity of its execution, the competency of the testator to make a will and that the testator was not under restraint. By definition, however, it is not an integral part of a will. Consequently, a defectively executed self-proving affidavit, even if found to exist here, does not require the denial of the will to probate.
The Court finds that the objectant has failed to raise a triable issue of fact on the issues of publication, the request of the witnesses to sign the document, that the witnesses did not sign as witnesses in the testator's presence or in the presence of each other, or that the self-proving affidavit annexed to the end of the instrument was defectively executed requiring denial of the will to probate.
Therefore, the Court finds that instrument dated March 14, 2012 was executed in accordance with EPTL 3–2.1. Accordingly, the branch of the motion to dismiss the objection pertaining to lack of due execution is granted and that objection is dismissed.
As to the branch of the motion seeking summary judgment dismissing the objections alleging lack of testamentary capacity, a proponent bears the burden of proving, by a preponderance of evidence, that, at the time of execution, decedent understood three things in a general way: (i) the nature and extent of his or her property; (ii) the natural objects of his or her bounty; and (iii) the provisions of the instrument (Matter of Kumstar, 66 N.Y.2d 691, 496 N.Y.S.2d 414, 487 N.E.2d 271 ). The capacity to execute a valid will is minimal-lower than that required to execute most other legal documents or contracts (In re Coddington, 281 A.D. 143, 118 N.Y.S.2d 525, aff'd 307 N.Y. 181, 120 N.E.2d 777 ).
The question of testamentary capacity concerns a person's mental condition only at the time of the execution of the will; evidence relating to the condition of the testator before or after the execution is only significant insofar as it bears upon the strength or weakness of the testator's mind at the exact hour of the day of execution (In re Hedges, 100 A.D.2d 586, 473 N.Y.S.2d 529 ). A testator needs only a lucid interval of capacity to execute a valid will, and this interval can occur contemporaneously with an ongoing diagnosis of mental illness, including depression (Matter of Esberg, 215 A.D.2d 655, 627 N.Y.S.2d 716 ), progressive dementia, or even incompetency (See: Matter of Walther, 6 N.Y.2d 49, 188 N.Y.S.2d 168, 159 N.E.2d 665 ; Matter of Friedman, 26 A.D.3d 723, 809 N.Y.S.2d 667 ). Also, it has long been recognized that physical weakness is not necessarily inconsistent with testamentary capacity (Children's Aid Soc. of N.Y. v. Loveridge, 70 N.Y. 387 ; Matter of Swain, 125 A.D.2d 574, 509 N.Y.S.2d 643 ).
In the instant proceeding, the SCPA 1404 testimony of one of the attesting witnesses and the affidavits of both attesting witnesses, together with the attestation clause in the instrument offered for probate, establish a prima facie case of testamentary capacity. Petitioner having met his initial burden, it is now incumbent upon the objectant to produce evidentiary proof in admissible form to raise a material issue of fact on the issue of lack of testamentary capacity (Matter of Seelig, supra ).The objectant, in opposition to the motion, failed to produce any medical records or any other evidence establishing an issue of fact regarding the incapacity of the testator at the time of the execution of the instrument offered for probate.
The Court finds that the undisputed proof in the record establishes the decedent had testamentary capacity at the time of the execution of the instrument. Accordingly, the branch of the motion seeking summary judgment dismissing the objection alleging lack of testamentary capacity is granted and the objection is dismissed.
Insofar as the branches of petitioner's motion for summary judgment on the issues of fraud and undue influence are concerned, the burden of proof for establishing fraud and undue influence is on the objectant. In support of the motion, petitioner has established a prima facie showing, based upon the documents and testimony submitted in support of the motion, that the decedent was free from any restraint.
In order to state a claim for fraud, an objectant must demonstrate that the person accused of such fraud knowingly made a false statement to the testator that caused him to execute a will that disposed of his property in a manner differently than he would have in the absence of that statement (In re Beneway, 272 A.D. 463, 71 N.Y.S.2d 361 ). Fraud, therefore, requires the showing that a knowingly false statement was made. In his demand for a verified bill of particulars, petitioner demanded that objectant "State with particularity upon what ground the objectant will claim that there was fraud involved with the execution of Rochelle Cookson's will." Objectant's response was that fraud is an "alternative theory" and proceeded to state a hypothetical that if the petitioner had made a promise to decedent to do something that was not intended to be done, the will would be invalid. Yet, objectant's papers, even after discovery, did not establish with particularity that any false statements were actually made by the petitioner that would require a trial on this issue.
For a will to be invalidated based on undue influence, "... it must be shown that the influence exercised amounted 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" (Children's Aid Socy. of City of N.Y. v. Loveridge, 70 N.Y. 387 ). Undue influence "may ... be proved by circumstantial evidence, but this evidence ... must be of a substantial nature" (Matter of Walther, 6 N.Y.2d 49, 188 N.Y.S.2d 168, 159 N.E.2d 665 ).
Again, in response to petitioner's prima facie showing, the objectant did not produce any evidence demonstrating the existence of a triable issue of fact regarding undue influence. Accordingly, the branches of the motion to dismiss the objections of undue influence and fraud are granted and those objections are dismissed.
The final objection alleges that the instrument "... was executed by Rochelle Cookson by mistake in that she did not understand the contents of the instruments offered for probate herein." To the extent the objection is merely a restatement of the objection regarding the decedent's testamentary capacity, it should be dismissed (see Matter of Kemble, 149 A.D.2d 899, 540 N.Y.S.2d 585 ).
To the extent the objectant is alleging otherwise, petitioner's demand for a bill of particulars requests, in paragraph 9, that objectant state with particularity how the document executed by Rochelle Cookson was executed by mistake. Objectant's response was as follows:
9. As Response Number 7 has made clear, the Decedent had a very different understanding of the value of her residuary estate at the time, and what the value of same would be at her death. The changes from her prior will, essentially changing the appointment of Executor from the Objectant to the Petitioner, and the change of distribution in favor of the Petitioner presume both a belief in the trustworthiness of her son to carry out her wishes, and a belief that her the Petitioner (sic) would neither waste away nor divert that vast majority of her estate. Given the vast departure between the Decedent's beliefs regarding her estate and reality, even if she had sufficient capacity and was not coerced, her execution of those particular terms constitutes mistake.
This objection is essentially nonsensical. Very few testators will know the exact size of their residuary estate at the time of their death, especially if it is executed at a time when death is not imminent. The decedent herein died a year and a half after the will's execution. A mistake or misapprehension on the part of the testator as to the size of her estate at the time of her death is not grounds for a will's denial of probate.
Nor, pursuant to longstanding precedent, may a properly executed will be denied probate due to the fact that its terms may need to be construed or decedent allegedly misconstrued the legal import of its terms (Matter of Davis, 182 N.Y. 468, 75 N.E. 530 ; Matter of Webb, 122 Misc. 129, 202 N.Y.S. 346, affd. 208 A.D. 793, 203 N.Y.S. 958 ). As stated by the learned court in Matter of Cotter (180 Misc. 399, 40 N.Y.S.2d 93 ):
"The suggestions of the contestants here that the jury should have been intrusted with the determination of knowledge of the testator as to the terms of the will border upon the ridiculous." Courts are not at liberty to inquire as to a testator's understanding or appreciation of the legal implications of words that were selected for her by a draftsman of the will. What the testator has done, not what she meant but failed to do, is to be given effect (Manion v. Peoples Bank of Johnstown 292 N.Y. 317, 55 N.E.2d 46 ; see also Matter of Devine 41 Misc2nd 211, 244 N.Y.S.2d 934 ).
Accordingly, the branch of the motion to dismiss the objection based upon mistake is granted and that objection is dismissed.
All objections having been dismissed, summary judgment is granted to the petitioner. The will dated March 14, 2012 is admitted to probate.
Letters testamentary shall issue to the petitioner upon his duly qualifying.
Settle decree.