Opinion
May 13, 1991
Appeal from the Surrogate's Court, Dutchess County (Benson, S.).
Ordered that the order is affirmed insofar as appealed from, with costs payable by the appellant personally.
Summary judgment was properly granted since the objectant failed to present any evidence showing that undue influence was exercised by the petitioner, his wife, or the attorney who drafted the testator's will, to effect a change in the testator's testamentary intent. Nor was evidence presented that their behavior was fraudulent in that respect. A mere showing of opportunity and even of motive to exercise undue influence is insufficient to present a triable issue of fact, without additional evidence that such influence was actually exercised (see, Matter of Walther, 6 N.Y.2d 49, 55). Nor can such inference be reasonably drawn from circumstances that are not inconsistent with a contrary inference (Matter of Walther, supra). Since there was no supportable inference of undue influence or fraud the court properly dismissed those objections as a matter of law (see, Matter of Pascal, 309 N.Y. 108; Matter of Swain, 125 A.D.2d 574; Matter of Hedges, 100 A.D.2d 586). Kooper, J.P., Sullivan, Harwood and Rosenblatt, JJ., concur.