Summary Judgment in Will Contests: Matter of Lubin

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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