Opinion
2018-751
02-13-2020
In the MATTER OF the PROBATE PROCEEDING, WILL OF Santine PORPORA, Deceased.
John B. Swift, III, Esq., Attorney for Petitioner, 6 Corral Lane, Goshen, NY 10924 William A. Friedman, Esq,. Gaeta Law Firm, LLC, Attorney for Objectants, 400 Columbus Ave., Suite 180E, Valhalla, NY 10595
John B. Swift, III, Esq., Attorney for Petitioner, 6 Corral Lane, Goshen, NY 10924
William A. Friedman, Esq,. Gaeta Law Firm, LLC, Attorney for Objectants, 400 Columbus Ave., Suite 180E, Valhalla, NY 10595
Timothy P. McElduff Jr., J.
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 Santine Porpora to probate and dismissing the objections to probate filed herein and awarding costs and attorney's fees to the Petitioner:
1. Petitioner's Notice of Motion for Summary Judgment dated October 23, 2019, Swift Affirmation in Support dated October 23, 2019, Caplicki Affidavit sworn to October 21, 2019, John Porpora Affidavit sworn to October 23, 2019 together with Exhibits A through V;
2. Jan Porpora Affidavit in Opposition sworn to November 12, 2019 together with Exhibits A through K; Nicole Wagner Affidavit in Opposition sworn to November 12, 2019 together with Exhibits A and B; Affidavit of Jenny Eisenhauer in Opposition sworn to November 12, 2019 together with Exhibits A and B; Affidavit of Joseph DeBartolo in Opposition sworn to November 13, 2019 together with Exhibits A through G; Memorandum of Law in Opposition to Petitioner's Motion for Summary Judgment dated November 13, 2019;
3. Swift Reply Affirmation dated November 19, 2019; Caplicki Reply Affidavit sworn to on November 18, 2019; John Porpora Reply Affidavit sworn to on November 18, 2019 together with Exhibits A through V.
BACKGROUND
Decedent Santine Porpora died on August 16, 2018 leaving a document purported to be a last will and testament dated March 14, 2011 (the "March 2011 Will"). The March 2011 Will makes five specific bequests of $5,000.00 each to five of Decedent's grandchildren. The March 2011 Will bequeaths the residue of the estate to the Decedent's son, John Porpora, in the amount of 50% and to the Decedent's daughter, Jan Porpora, in the amount of 50%. (See Notice of Motion, Exhibit B).
John Porpora (the "Petitioner") has petitioned to probate the March 2011 Will. Jan Porpora, joined by Decedent's grandchildren Nicole Wagner and Jenny Eisenhauer (collectively, the "Objectants") have jointly filed objections to probate. (Notice of Motion, Exhibit G).
It is admitted and undisputed that the sole ground for objection to the March 2011 Will is the alleged undue influence of Petitioner John Porpora upon the Decedent in the 2011 Will's execution.
The Decedent had a series of alleged wills prepared during her life. The first was drafted in 1992 (the "1992 Will"). The 1992 Will bequeathed the Decedent's residuary estate to her three children, Petitioner John Porpora, Objectant Jan Porpora and Delores McKeeby in equal shares, and to their heirs per stirpes. (See Jan Porpora Affd., Exhibit C).
In 2009, however, Delores McKeeby passed away. Following this event, and due to it, the Decedent hired attorney-draftsman Dennis Caplicki, Esq. to prepare a new alleged will dated January 2010 (the "January 2010 Will"). (See Notice of Motion, Exhibit A; Caplicki Affd. in Support; Jan Porpora Affd. Exhibit E).
The January 2010 Will bequeathed the Decedent's residuary estate to her then-surviving children, Petitioner John Porpora (50%) and Objectant Jan Porpora (50%) and removed any share of the residuary estate from Delores (who had died) as well as any succession rights to Delores' heirs per stirpes. Instead, the January 2010 Will provided Delores' heirs (Objectants Nicole Wagner and Jenny Eisenhauer) with specific bequests of $5,000.00 each, and no succession rights to a third of the residuary estate, which had previously existed under the 1992 Will.
According to non-party witness Joseph DeBartolo (Decedent's brother), in late 2010 the Decedent expressed to him and his wife, Karen (now deceased), that the January 2010 Will was not what she wanted. Joseph alleges that the Decedent wanted her estate to be divided into three equal shares, such that Petitioner John Porpora would receive a third, Objectant Jan Porpora would receive a third and Delores' surviving children (Objectants Nicole Wagner and Jenny Eisenhauer) would receive Delores' third. To that end, Joseph claims that the Decedent asked him for help in preparing new will to supersede the January 2010 Will.
According to Joseph, he, his wife Karen and the Decedent sat down and wrote handwritten notes regarding proposed changes to the January 2010 Will. None of those notes have been provided to the Court as an exhibit. Joseph states that Karen located a new attorney for the Decedent, Robert McManus, Esq., and that she and Joseph took the Decedent to meet him. Joseph stated that the Decedent was very clear with Mr. McManus that he should only address her (i.e., the Decedent) with regard to the will discussion. After the Decedent's meeting with Mr. McManus, Joseph, Karen and the Decedent reviewed the draft will prepared by Mr. McManus and created a document entitled "CORRECTIONS TO Last Will and Testament of Santine Porpora" for Mr. McManus' use. Joseph stated that the document was typed by Karen. The document, itself, states that some of its content came from Joseph and Karen while other parts came from things that the Decedent said to them. Item No.8 purports to relate statements by the Decedent that she had been thinking a lot lately about fairness and decided that her granddaughters, Objectants Nicole and Jenny, should inherit the share that their mother, Delores, would have inherited if she survived, and that there should not be specific bequests to the grandchildren. (See DeBartolo Affd., Ex. B).
Decedent's declarations, whether written or spoken, may not be taken as evidence of the facts stated. Instead, they are only admissible for the limited purpose of showing strength or weakness of testator's mind and may not be extended to show affirmative or external proof of undue influence. In re Putnam's Will , 257 NY 140 (1931) ; In re Frank's Estate , 165 Misc 411 (Sur. Ct. 1937), judgment modified on other grounds , 253 AD 706 (1st Dept. 1937).
A new purported will prepared by Mr. McManus was then signed on November 19, 2010 (the "November 2010 Will"). (See Notice of Motion, Exhibit F). Thereafter, on November 24, 2010, Joseph wrote a letter to Petitioner John Porpora and Objectant Jan Porpora wherein he discussed how he and the Decedent worked together (in a manner specifically intended to be surreptitious) to change the January 2010 Will with a new lawyer. Purportedly, Joseph had the Decedent sign the letter and state that all questions should be directed to him rather than to the Decedent herself. (See DeBartolo Affd., Exhibit C).
Absent from any of Objectants' submissions is an affidavit from the attorney-draftsman of the November 2010 Will, Mr. McManus, which could have confirmed Joseph's statements and/or could have been used to further explain the circumstances under which the November 2010 Will was created, the manner in which it was created, the reasons for it, and/or his communications with the Decedent and her state/condition.
By letter dated February 19, 2011, Petitioner John Porpora responded to Joseph's letter, expressing his dismay, questioning the Decedent's capacity to make the November 2010 Will and asking Joseph to destroy the November 2010 Will. (See DeBartolo Affd., Exhibit D).
Although both parties to this proceeding have referred to an onset of dementia or symptoms of dementia, no objection has been raised as to the Decedent's capacity to make the 2011 Will offered for probate here, nor has any sufficient or admissible evidence been offered to support such a conclusion. In any event, it has long been recognized that old age, physical weakness and senile dementia are not necessarily inconsistent with testamentary capacity as long as the testatrix was acting rationally and intelligently at the time the will was prepared and executed. In re Estate of Friedman , 26 AD3d 723 (3d Dept. 2006) ; Matter of Hedges , 100 AD2d 586 (2d Dept. 1984).
Thereafter, on March 14, 2011, the Decedent returned to attorney-draftsman Dennis Caplicki, Esq. to execute the March 2011 Will offered for probate here. According to the affidavit and deposition testimony of Mr. Caplicki, he understood that the Decedent wished to change under January 2010 Will to provide $5,000.00 bequests to all five of her grandchildren, instead of $5,000.00 bequests only being made to Objectants Nicole and Jenny. At the time of the March 2011 Will's preparation and execution, Mr. Caplicki was not aware of Mr. McManus' November 2010 Will, nor did the Decedent inform him of the November 2010 Will. However, Mr. Caplicki testified that at both of his will executions, in January 2010 and in March 2011, he observed the Decedent to be of sound mind and composure, with no indications of any lack of testamentary capacity or undue influence being placed upon her.
At the time the Decedent made the January 2010 Will, the November 2010 Will and the March 2011 Will, she was 92 and 93 years of age, respectively. When she died on August 16, 2018, she was 100 years old and within four months of becoming 101 years old.
Petitioner John Porpora has held powers of attorney and health care proxies for the Decedent since 1989, when the Decedent was 71, following the death of Decedent's husband in 1987. To the Petitioner's credit, as well as to the Objectants' credit, the record does not contain any allegations concerning Petitioner's mistreatment, abuse or domination of the Decedent, whatsoever, despite the fact that Petitioner was the primary source of assistance and attorney-in-fact to the Decedent for the past three decades.
However, the record does reveal acrimony in the family-at-large. It arises from a dispute over $15,000.00 between Petitioner John Porpora and Objectants Nicole and Jenny. The Petitioner had lent $15,000.00 to his sister Delores, during her lifetime, to repair and improve her real property. The Petitioner expected that the $15,000.00 would be repaid to him after Delores died. No one disputes the various forms of assistance, financial and otherwise, that Petitioner provided to Delores during her lifetime. Nonetheless, for unstated reasons, Objectants Nicole and Jenny dispute this particular claim for the repayment of $15,000.00. As a result of Jenny and Nicole failing to address their alleged responsibility, the Petitioner and his wife have decided to "shun" Nicole and Jenny and to refuse to appear at any family events that Nicole and Jenny attend until the dispute is resolved. Petitioner and his wife have also urged their daughter not to have any association with Nicole and Jenny until this dispute is resolved.
The Objectants' allegation of undue influence as it relates to the March 2011 Will is based upon the acrimony arising from the $15,000.00 dispute. The Objectants allege, primarily through the testimony of non-party Joseph DeBartolo, that the Petitioner urged the Decedent to execute a new will (the March 2011 Will) to override the previous will (the November 2010 Will) due to his dispute with Nicole and Jenny and/or his own personal "greed". When Joseph was asked if he had any facts to support his conclusion that the Petitioner unduly influenced the Decedent in going back to Mr. Caplicki to execute the March 2011 Will, he stated as follows:
In my conversations relative to the will, at some point [the Decedent] said to me, I've already lost one child. I can't afford to lose another. I took that to mean that if she didn't do what John had insisted, suggested to do, that she would lose John.
(See DeBartolo Affd., Exhibit A, 80:12-81:7; see also Memorandum of Law in Opposition, p.14).
ANALYSIS
A. 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).
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 A. 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). Prima facie testamentary capacity may also be demonstrated through the deposition testimony of the attorney-draftsman who supervised the will execution. In re Will of Bellasalmo , 54 Misc 3d 1216(A) (Sur. Ct., Queens Co., 2017) ; In re Will of Kryk , 18 Misc 3d 1105(A) (Sur. Ct., Monroe Co., 2007).
Here, the March 2011 Will was prepared by, and executed under, the supervision of attorney-draftsman Dennis Caplicki, Esq. His affidavits and deposition testimony both demonstrate that the Decedent had sufficient testamentary capacity and was free from duress at the time of the March 2011 Will's preparation and execution. As a result, the Petitioner has established, prima facie , the Decedent's testamentary capacity, as well as the March 2011 Will's genuineness and due execution. Furthermore, upon the Court's inspection, the March 2011 Will satisfies all writing, signature, attestation and witness requirements of EPTL § 3-2.1.
Having demonstrated the prima facie validity of the March 2011 Will, the burden now shifts to the Objectants 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).
B. The undue influence objection
"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, 865-866 (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 865-866.
"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’ ").
Here, the Objectants have sufficiently demonstrated Petitioner John Porpora's motive (the $15,000.00 dispute), as well as his opportunity (primarily assisting with Decedent's care and transportation) to unduly influence the Decedent to execute the March 2011 Will; however, the Objectants have not sufficiently demonstrated or even alleged facts or circumstances showing that Petitioner John Porpora's "acts" or utilization of undue influence over the Decedent to execute the March 2011 Will. Unlike Antoinette , Panek and Boden supra , the Objectants have failed to demonstrate, or even allege, any abusive, threatening or dominating behavior by the Petitioner towards the Decedent that abruptly changed her life or attitude from what it had been before. Instead, similar to Dubin , Turner and DiMaggio supra , the Objectants had no personal knowledge of any particular acts by the Petitioner, and instead, merely demonstrated an "overall atmosphere" of animosity in the family-at-large arising from the $15,000.00 dispute. Therefore, the Objectants suggested that there was reason to believe that the Petitioner, who primarily assisted the Decedent and transported her to Mr. Caplicki's office, could have urged the Decedent to make the March 2011 Will as she did. The only other "proof" of undue influence was non-party Joseph DeBartolo's mere supposition, "I took that to mean that if [the Decedent] didn't do what John had insisted, suggested to do, that she would lose John" does not allege an act of undue influence. Taken together, Objectants' suppositions and allegations do not state acts or actual assertions of undue influence by the Petitioner, not to mention "substantial" ones. Instead, they constitute bare assertions, speculations and conclusory allegations of undue influence, which are insufficient to raise an issue of fact.
The fact that Petitioner John Porpora may have stood in a confidential relationship with the Decedent is counterbalanced by his familial relationship with the Decedent, and thus, eliminates any presumption of undue influence or need to explain it away. Will of Miller , 49 Misc 3d 1207(A) (Sur. Ct., Westchester Co., 2015) ; compare Matter of Walther , 6 NY2d 49, 54 (1959).
In addition, frequently or habitually changing a will, even when "the deceased seems to have spun the wheel of fortune so as to stop at one group and then another, depending on whim or fancy," does not constitute undue influence or fraud by itself. In re Walter's Will , 114 NYS.2d 477, 478 (Sur. Ct., 1952), decree rev'd on other grounds , 283 AD 745 (2d Dept. 1954). Instead, the changing of a will can only become a part of the circumstantial evidence of undue influence when combined with other evidence, most importantly, evidence of the influencer's actual exertion of control over the testator to force the change. See, e.g. , In re Rosen , 296 AD2d 504, 505 (2d Dept. 2002) (a decedent's will was the product of undue influence exerted by his sister, warranting denial of probate, where the sister began to exercise control over the decedent's finances at about the same time witnesses observed that he began to show personality changes from progressive dementia; the decedent opened at least one new bank account for which the sister had authority to sign checks, and the sister subsequently wrote checks to her children from those accounts; the decedent had a new will drafted by an attorney recommended by the sister's husband rather than by the attorney who had drafted his three previous wills; and the sister's children were named as equal residuary beneficiaries in the new will, whereas they would have received token bequests under his previous wills).
Here, the Decedent's alleged wills changed three times: from 1992 (estate split three ways between the living children) to January 2010 (estate split two ways between the surviving children, with stipends to Jenny/Nicole) to November 2010 (estate split three ways between the two surviving children and Jenny/Nicole) to March 2011 (estate split two ways between two surviving children, with stipends to all five grandchildren including Jenny/Nicole). However, there is no showing, direct or circumstantial, that Petitioner actually exerted control over the Decedent such that he forced her to execute the March 2011 Will against her will.
Beyond the lack of any undue coercion by the Petitioner, the record does not show that the Decedent suffered from any particular physical or mental infirmity that could have made her susceptible to undue coercion. While the Decedent was at an advanced age at the time of the 2010 and 2011 will executions, she lived another 7+ years from those will executions. Further, there has been no objection or showing that suggests her lack of testamentary capacity at any relevant time. To the contrary, the Objectants and Joseph DeBartolo submit that the Decedent had the requisite testamentary capacity when she executed the November 19, 2010 Will. In the absence of any objection to capacity, contrary medical or circumstantial evidence, and in the presence of attorney-draftsman Caplicki's testimony observing the Decedent's testamentary capacity a mere 4 months later on March 14, 2011, there is no basis in this record to conclude that the Decedent was in a weakened or coercible state when she executed the March 2011 Will.
Finally, "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." In re Prob. Proceeding Will of Mancuso , 196 Misc 2d 897, 903 (Sur. Ct., Kings Co., 2003).
Thus, whether or not the Petitioner advised, argued for or persuaded the Decedent to execute the March 2011 Will, such conduct does not equate undue influence.
For the foregoing reasons, Objectants' undue influence objection is dismissed as a matter of law.
C. Attorney's fees
Petitioner's motion for summary judgment additionally requests an award of costs and attorney's fees; however, no basis for the award has been argued or established. While the Court may award costs and attorney's fees upon dismissing frivolous objections to probate, the Court does not find the Objectants' objections to be frivolous.
Accordingly, Petitioner's request for costs and attorney's fees is denied.
CONCLUSION
For the reasons cited herein, Petitioner's motion for summary judgment admitting the Last Will and Testament of Santine Porpora dated March 14, 2011 is granted, said Will is hereby admitted to probate and, consistent therewith, Letters Testamentary shall thereupon issue to the nominated Executor, John Porpora, without bond.
Further, the Objections to Probate by Jan Porpora, Nicole Wagner and Jenny Eisenhauer dated August 13, 2019 are hereby denied and dismissed.
A Decree admitting the Will to probate shall issue in conformity herewith.
This constitutes the Decision and Order of the Court.