Opinion
April 25, 1995
Appeal from the Surrogate's Court, New York County (Eve Preminger, S.).
The Surrogate's Court properly granted the proponent's motion for summary judgment dismissing the objections to probate. The record reveals that the objectants, after conducting extensive discovery, failed to meet their burden in opposing summary judgment of rebutting the proponent's prima facie case for probate, by offering any proof, other than their conclusory allegations, sufficient to raise a triable issue of fact with regard to due execution, testamentary capacity, or alleged fraud or undue influence exerted by proponent Lawrence Karnbad, the decedent's accountant and financial adviser and her sole beneficiary, in the drafting of the decedent's will (Matter of Philip, 173 A.D.2d 543; Matter of Cioffi, 117 A.D.2d 860).
Although an inference of undue influence, requiring the beneficiary to explain the circumstances of the bequest, arises when a beneficiary under a will was in a confidential or fiduciary relationship with the testator and was involved in the drafting of the will (Matter of Putnam, 257 N.Y. 140), no such inference arises, where, as here, there is no evidence that the fiduciary-legatee, proponent Karnbad herein, had any direct or indirect involvement in the preparation or execution of the testamentary instruments offered for probate (Matter of Henderson, 80 N.Y.2d 388, 392).
Nor did the IAS Court err in dismissing the objection to the appointment of multiple fiduciaries and an attorney as a coexecutor of the propounded instruments since the payment of additional commissions and fees has no bearing whatsoever upon whether the will should be admitted to probate (Matter of Weinstock, 40 N.Y.2d 1, 6; Matter of Klenk, 204 A.D.2d 640).
Concur — Ellerin, J.P., Rubin, Asch, Nardelli and Mazzarelli, JJ.