Summary Judgment in Will Contests: An Epilogue

Summary Judgment in Will Contests: An Epilogue

 By: John G. Farinacci

Last month, I wrote on this blog about the changing tides in probate litigation over the last 15 years concerning how the courts view summary judgment in will contests. See Summary Judgment in Will Contests: Matter of Lubin, posted 2/13/12. As discussed therein at length, the courts have been trending away from an historical aversion to the grant of summary judgment in will contests and instead tend more often now engage the same thorough analysis to determine whether there are any genuine issues of fact as any other motion for summary judgment outside of the contested probate context. As a perfect example of this, I discussed 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] because the surface facts of that case seemed to cry out for a denial of summary judgment inasmuch as it was literally a deathbed non-attorney drafted, non-attorney supervised will leaving all to a non-family member whose friend was the will's drafter. However, the court, in engaging in a carefully considered analysis of the evidence, found that indeed the petitioner had established a prima facie entitlement to probate and that the objectant failed to proffer any evidence to raise material issues of fact beyond conjecture based solely on motive and opportunity. 

Another case, decided by the Appellate Division for the Second Department last week shows that the appellate courts as well as the trial courts are increasingly no longer influenced by the old inclination to simply deny summary judgment because the matter is a will contest. In Matter of Capuano, 2012 N.Y. App. Div. LEXIS 1660 (2d Dep't March 6, 2012) [enhanced version available to lexis.com subscribers] the testator signed a will while weakened by cancer treatments leaving her entire estate to the husband of the testator's niece. The petitioner sought summary judgment which was denied by the Surrogate's Court but only as to the claim of undue influence and dismissed all other objections. The Second Department reversed and entered summary judgment in favor of the proponent as to the final objection relating to undue influence. In reviewing the record, the court found that:  

Although the decedent was undergoing treatment for cancer at the time of her unexpected death, the witnesses who knew the decedent for many years, and interacted with her almost daily, established that she was alert, did not appear to be ill, and was her usual self when she executed the will bequeathing her estate to the appellant.

In opposition, the objectant failed to raise a triable issue of fact (see Zuckerman v. City of New York, 49 NY2d 557) [enhanced version available to lexis.com subscribers], since his opposition was based on allegations which were conclusory, speculative, and unsupported by admissible evidence (see Matter of Klingman, 60 AD3d at 950 [enhanced version available to lexis.com subscribers]; Matter of Dubin, 54 AD3d 945 [enhanced version available to lexis.com subscribers]; Matter of Bustanoby, 262 AD2d 407, 408 [enhanced version available to lexis.com subscribers]). Accordingly, the appellant's renewed motion, in effect, for summary judgment dismissing the objection to probate based on fraud and undue influence should have been granted.

In this case, the court clearly applied well settled rules which impose the burden on the one who is resisting summary judgment to lay bare his or her proofs once the movant has established a prima facie case by requiring more than mere conclusory and unsupported allegations. Where the Surrogate's Court found a material issue of fact, the Second Department, applying such well established rules to evaluate whether summary judgment is justified, devoid of any prejudices merely because the context was a will contest, clearly did not.  

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