Opinion
April 10, 1989
Appeal from the Surrogate's Court, Queens County (Laurino, S.).
Ordered that the decree is affirmed, with costs payable by the appellants personally.
The evidence in this record is unrefuted that, on the day he executed his will, the testator was of sound mind and fully aware of the nature and consequences of his actions in disposing of his property. While it is clear that he was aged and suffered from certain physical ailments, the objectants failed to submit any proof that the testator's mental faculties were impaired at that time. Therefore, the Surrogate properly awarded judgment as a matter of law against the objectants on the issue of testamentary capacity (see, Matter of Kumstar, 66 N.Y.2d 691, 692; Matter of Hedges, 100 A.D.2d 586, 588).
Similarly, as to the issue of undue influence, judgment as a matter of law was appropriately entered in the absence of evidence of a substantial nature to show that "moral coercion" was applied by anyone "which restrained independent action and destroyed free agency, or which * * * 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. v. Loveridge, 70 N.Y. 387, 394; see also, Matter of Walther, 6 N.Y.2d 49, 53; Matter of Fiumara, 47 N.Y.2d 845, 846; Matter of Hedges, supra, at 588).
Nor do we find error in any of the Surrogate's evidentiary rulings which have been challenged on appeal. Certain records proffered by the objectants were properly denied admission into evidence for want of authentication (see, CPLR 2306, 4518 [c]). In addition, since concededly none of the testator's prior wills was ever filed in the Surrogate's Court, there was no necessity to notify any legatee under any of the prior wills (see, SCPA 1403 [d]; Matter of Abrial, 286 App. Div. 916). Mollen, P.J., Mangano, Brown and Harwood, JJ., concur.