By: John G. Farinacci,
Esq., Ruskin Moscou Faltischek, P.C., Uniondale, NY
There
has been an historical aversion to granting summary judgment in probate
contests. However, during the last fifteen years or so, the courts have been
trending away from the view that probate proceedings should be treated any
differently than any other case in which summary judgment is sought. This is
perhaps no better demonstrated than in a recent case decided by the Bronx County
Surrogate's Court in Matter of Lubin,
30 Misc. 3d 1234A, 926 N.Y.S.2d 344 (Sur. Ct. Bronx County 2011) [enhanced version available to lexis.com subscribers].
In Matter of Lubin, the Decedent, a retired court reporter, signed
what was literally a death bed will. The will was executed just hours before his
death in his hospital room after having been hospitalized for more then two
weeks. The will provided that a non-family member friend of his decedent receive
the entirety of his estate and serve as his executor. The will was drafted by a
non-attorney who was one of the beneficiary's closest friends. The will was
brought to the hospital by the beneficiary, was executed while the beneficiary
was present in the room and the execution was not attorney supervised. Indeed,
it was not even supervised by the non-attorney drafter who was not present at
the time of execution. The attesting witnesses were three hospital employees.
Decedent's
cousin and a guardian ad litem for unknown heirs (the "GAL") conducted SCPA 1404 examinations of the attesting witnesses and the
lay draftsperson. They also subpoenaed the decedent's hospital records. The GAL
filed objections claiming lack of due execution, lack of testamentary capacity
and undue influence. The Petitioner moved for summary judgment. The GAL
opposed.
The
surface facts of this case would seem to call the validity of the will into
serious question and in the past, summary judgment would likely have been swiftly
denied. However, following the modern trend, the Bronx Surrogate took a
critical and detailed look at the facts presented on the motion and found the
following:
The non-attorney drafter testified at
her SCPA 1404
examination that the decedent first spoke about leaving everything to the
movant about three years prior to his death, upon his return from a California
trip. According to the drafter, the decedent always stated that he knew he
should have a will, but he was "superstitious" and believed that, if
he signed one, he would die. The decedent also stated repeatedly that the
movant was "like a son" to him and he wanted to leave his estate to the
movant. Over the years, particularly when the decedent did not feel well and
raised the subject, the drafter encouraged the decedent to retain a lawyer to
draw up a will or, alternatively, to complete a Blumberg form will and she gave
him blank forms, noting that he did not have to sign any draft or form until he
felt death was imminent. The drafter, the decedent and the movant were all
friends and used to dine together, and the drafter considered the movant to be
like "family." Specifically, although the decedent and the drafter
were friendly, each of them had a closer relationship with the movant.
During the decedent's last hospitalization, the drafter did not go to the
hospital but she often spoke with him by telephone; the decedent knew he was
dying, and was always alert and coherent in those conversations. During the
same conversations from the hospital, the decedent asked her to type the
propounded instrument because he did not believe that the January 1, 2009
handwritten instrument on a Blumberg form looked official.
The drafter told the decedent that he would need two witnesses and a notary,
but she did not contact the persons at the hospital who served as such.
According to the drafter, the decedent stated that he did not want [decedent's cousin] to visit him in the hospital,
that [decedent's cousin] had a very strong
personality and there was an estate lawyer in the family that could be a
problem. As a result, the decedent asked the drafter to insert in the
propounded instrument a provision that [decedent's
cousin] should not be permitted to circumvent the will. The drafter
typed what the decedent told her, even though she was not sure whether the
language was legally appropriate. After typing the propounded instrument in
accordance with the decedent's instructions, the drafter gave it to the movant
to deliver to the decedent.
The three witnesses to the will, the
director of nursing, a nursing assistant and a unit secretary at the hospital,
testified similarly. They stated that in the afternoon or early evening of
January 9, 2009, before witnessing the decedent sign the instrument, the director
of nursing questioned the decedent to determine his orientation and whether he
knew what he was signing. The decedent answered all questions appropriately,
including knowing the date, the place where he was and the names of the
president and the mayor, and stated the witnesses were there to witness him
sign the propounded instrument. When the hospital administrator indicated that
he intended to read the contents of the propounded instrument aloud, the
decedent stated that he already knew its contents and just wanted to "get
it signed." Although one witness acknowledged that the decedent was weaker
than when he was first hospitalized, all witnesses testified that the decedent
was alert, oriented and semi-sitting in his bed. The nursing assistant added
that, at the time, the movant was in the room.
The medical records annexed to the motion reveal that while hospitalized from
December 30, 2008 through January 10, 2009, on December 30, 2008 and on January
2, 6 and 9, 2009, the decedent underwent several gastrointestinal procedures.
On January 7 and 8, 2009, the decedent was verbally responsive, in no acute
distress and alert and oriented "x3" although he received Percocet
for pain. On January 9, 2009, the date of the propounded instrument, a Foley Catheter
was removed and "discontinued," and fluid was drained from the
decedent's abdomen at 8:45 a.m. By 8 p.m. that evening, the decedent was in
renal failure and, by that time, he complained of pain in his abdomen and
refused Percocet, stating that he wanted
stronger medication; as a result, at 9:32 p.m., he received morphine
intravenously. Other than those instances of receiving Percocet and morphine,
the record notations for January 1, 2009 through the morning of January 10,
2009 consistently indicate that the decedent made his needs known, denied pain,
was conversant, "awake, alert and oriented x3," "eyes
bright" and responsive to commands, with no acute distress.
Id, at
1234, 1235.
Having thoroughly analyzed the
facts, the court then turned to evaluating the objections in light of the law
that has developed in summary judgment cases involving will contests.
Concerning the claim that the will
was not duly executed, the court stated:
The
proponent has the burden of demonstrating by a preponderance of the evidence
that a purported will was duly executed (see Matter of Halpern, 76 AD3d 429, 906 N.Y.S.2d 253 [2010], affd 16
N.Y.3d 777, 944 N.E.2d 1142, 919 N.Y.S.2d 503, 2011 NY Slip Op 1323 [NY 2011]; Matter of Falk, 47 AD3d 21, 845 N.Y.S.2d
287 [2007], lv denied 10 N.Y.3d 702, 883 N.E.2d 1010, 854 N.Y.S.2d 103 [2008]; Matter of Pirozzi, 238 A.D.2d 833, 657
N.Y.S.2d 112 [1997]; PJI 7:45). A presumption of regularity or validity may
arise where the propounded instrument contains either an attestation clause
preceding the genuine signatures of the attesting witnesses (Matter of Halpern, 76 AD3d at 429; Matter of Mooney, 74 AD3d 1073, 1074,
903 N.Y.S.2d 490 [2010]; Matter of Falk,
47 AD3d at 26), or has a self-proving affidavit annexed (see Matter
of Mooney, 74 AD3d at 1074; Matter of
Schlaeger, 74 AD3d 405, 407, 903 N.Y.S.2d 12 [2010]; Matter of Paigo, 53 AD3d 836, 863 N.Y.S.2d 508 [2008]).
Nonetheless, before admitting a will to probate, the court must be satisfied
that the execution of the will was valid, even if no interested party files
objections to its validity (see SCPA 1408; Matter
of Halpern, 76 AD3d at 429; Matter of Falk, 47 AD3d at 26).
Here,
the propounded instrument was not attorney-drafted or supervised; however, it
contains both an attestation clause and a self-proving affidavit signed by
three witnesses, giving rise to a presumption of regularity and validity.
Although the objectant contends that proof of publication is lacking because
the provisions of the propounded instrument were not read aloud during the
execution ceremony, there is no requirement that an instrument be read aloud
during the execution ceremony (see EPTL 3-2.1[a][3]). In any event, there was
substantial compliance with the publication requirement as evidenced by the
testimony of the attesting witnesses, that the decedent stated he understood
they were there to witness him sign the instrument and refused an offer to read
its contents aloud, stating that he knew its contents and just wanted to get
the instrument signed (see Matter of Beckett,
103 NY 167, 173-174, 8 N.E. 506, 2 N.Y. St. 764 [1886]; Matter of Hedges, 100 AD2d 586, 473 N.Y.S.2d 529 [1984], appeal
dismissed 63 N.Y.2d 944 [1984]; Matter of
Steinberg, 20 Misc 3d 1137[A], 867 N.Y.S.2d 378, 2008 NY Slip Op 51767[U]
[2008]; 2 NY PJI 3d 7:45 at 1401 [2011]). As the proponent met his burden of
proof with respect to due execution and the objectant failed to raise any issue
of fact for trial, the proponent is granted summary judgment dismissing that
objection.
Id, at
1436, 1437.
On the issue of whether the decedent
possessed the requisite capacity, the court held:
With respect
to testamentary capacity, it is well settled that the proponent has the burden
of proving by a preponderance of the evidence that the decedent possessed sufficient
testamentary capacity by demonstrating that the decedent: (1) understood the
nature and consequences of executing a will; (2) knew the nature and extent of
the property being disposed of; and, (3) knew the natural objects of his bounty
and his relations with them (see Matter
of Kumstar, 66 N.Y.2d 691, 692, 487 N.E.2d 271, 496 N.Y.S.2d 414 [1985]; Matter of McCloskey, 307 AD2d 737, 763
N.Y.S.2d 187 [2003], lv denied 100 N.Y.2d 516, 801 N.E.2d 423, 769 N.Y.S.2d 202
[2003]). Where there is conflicting evidence or the possibility of drawing
conflicting inferences from undisputed evidence, the issue of capacity is one for the jury (see Matter of Kumstar, 66 NY2d at 692).
Here, the
movant met his burden of establishing the decedent's testamentary capacity with
the self-proving affidavit of the attesting witnesses stating that the decedent
was of "sound mind, memory and understanding and not under any
restraint" and was not in any respect incompetent (see Matter of Schlaeger, 74 AD3d at 405).
The SCPA 1404 examinations, the medical records and the affidavits that may be
considered, collectively, demonstrate that the decedent knew and understood the
consequences of making a will, the nature and extent of his property and the
natural objects of his bounty, and that he consciously decided not to make a
bequest to [decedent's cousin] or other relatives (see id.; see also Matter of Scher, 74 AD3d 827, 903
N.Y.S.2d 900 [2010]). Contrary to the objectant's contention, the morphine
administered at 9:45 p.m. on January 9, 2009 was clearly after the execution
ceremony which the witnesses testified occurred in the late afternoon or early
evening. In sum, the evidence on the motion demonstrates that, at all times,
the decedent had his cognitive facilities and was lucid in the days before, and
at the time that he executed the propounded instrument (see Matter of Schlaeger, 74 AD3d at 405). As
the proponent met his burden of proof and the objectant failed to raise any
issue of fact for trial as to testamentary capacity, the proponent is also
entitled to summary judgment dismissing that objection.
Id, at
1437.
Finally, as to whether there was any basis for the claim of
undue influence, the court wrote:
The
objectant has the burden of demonstrating by a preponderance of the evidence
the exercise of undue influence (see Matter
of Castiglione, 40 AD3d 1227,1229, 837 N.Y.S.2d 360 [2007], lv denied 9
N.Y.3d 806, 874 N.E.2d 749, 842 N.Y.S.2d 782 [2007]; Matter of Katz, 192 A.D.2d 327, 595 N.Y.S.2d 475 [1993]; PJI 7:55).
A finding of undue influence requires proof of "a moral coercion, which
restrained independent action and destroyed free agency. . ." (Matter of Evanchuk, 145 A.D.2d 559, 561,
536 N.Y.S.2d 110 [1988], quoting Children's
Aid Soc. v Loveridge, 70 NY 387, 394 [1877]; see also Matter of Ryan, 34 A.D.3d 212, 824 N.Y.S.2d 20 [2006], lv denied 8
N.Y.3d 804, 862 N.E.2d 792, 830 N.Y.S.2d 700 [2007]; Matter of Cavallo, 6 AD3d 434, 774 N.Y.S.2d 371 [2004]). To meet
the burden of proving undue influence, the objectant must establish not only
motive and opportunity, but also the actual exercise of undue influence, either
through direct evidence or through significant circumstantial evidence of
specific instances in which the undue influence was actually exercised (see Matter of Walther, 6 NY2d 49, 55, 159
N.E.2d 665, 188 N.Y.S.2d 168 [1959]; Matter of Renzi, 67 AD3d 1078, 888
N.Y.S.2d 270 [2009], lv denied 14 N.Y.3d 708, 926 N.E.2d 1237, 900 N.Y.S.2d 731
[2010], cert denied ___ U.S. ___, 131 S. Ct. 420, 178 L. Ed. 2d 328 [2010]; Matter of Dubin, 54 AD3d 945, 864
N.Y.S.2d 528 [2008]; Matter of Ryan,
34 AD3d at 212; Matter of Fellows, 16
AD3d 995, 792 N.Y.S.2d 664 [2005]).
Other than
pointing to the possibility that the movant may have had a motive and
opportunity to influence the decedent, the objectant failed to proffer any
direct or circumstantial evidence, significant or otherwise, of the actual
exercise of any alleged undue influence. As the objectant has the burden of
proof on the issue of undue influence and she failed to make a prima facie
showing that undue influence was actually exercised, the proponent is entitled
to summary judgment dismissing the undue influence objection.
Id, at
1437, 1438.
The surface
facts of this case presented a great test of the extent to which the courts no
longer view probate contests as being immune to the same depth of analysis of
the facts and law that should go into deciding any summary judgment motion. The
court seemed to be aware of that when it concluded it decision by noting that
the GAL was justified in her vigorous opposition in light of such facts, but
held "[n]onetheless, after a diligent inquiry into all of the circumstances
surrounding the execution of the will. . . [t]here are no triable issues of
fact in view of all of the uncontroverted proof adduced." Id, at 1438.
This case is
clear proof that courts are no longer willing to treat will contests as
virtually impervious to summary judgment and will seriously look to see if
there are any genuine issues of fact.
. . . .
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