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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
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
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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