Opinion
2013-02-14
Probate Proceeding, WILL OF Reva KATZ, Deceased. Barbara Fortgang, et al., Petitioners–Respondents, v. Dr. Jeffrey I. Katz, Objector–Appellant.
Jack Dashosh, Sea Cliff, for appellant. Goldfarb Abrandt Salzman & Kutzin LLP, New York (Michael S. Kutzin of counsel), for respondents.
Jack Dashosh, Sea Cliff, for appellant. Goldfarb Abrandt Salzman & Kutzin LLP, New York (Michael S. Kutzin of counsel), for respondents.
MAZZARELLI, J.P., FRIEDMAN, MANZANET–DANIELS, ROMÁN, CLARKE, JJ.
Order, Surrogate's Court, New York County (Kristin Booth Glen, S.), entered on or about September 28, 2012, which granted petitioners' motion for summary judgment dismissing objector's objections to probating the will, unanimously affirmed, without costs.
In opposition to the self-proving affidavits submitted by petitioners establishing the decedent's competency at the time her will was executed ( see Matter of Schlaeger, 74 A.D.3d 405, 903 N.Y.S.2d 12 [1st Dept. 1995] ), objector submitted a medical opinion to the contrary by a doctor who had never examined decedent and based her opinion solely on medical records ( see Matter of Estate of Van Patten, 215 A.D.2d 947, 949, 627 N.Y.S.2d 141 [3d Dept. 1995], lv. denied87 N.Y.2d 802, 638 N.Y.S.2d 425, 661 N.E.2d 999 [1995] ). Moreover, the decedent was examined shortly before she executed the will by a psychiatrist hired by her trust and estates lawyer and was found competent.
The fact that the decedent's lawyer was referred to her by petitioners is insufficient to raise an issue of fact as to undue influence ( see Matter of Walther, 6 N.Y.2d 49, 54–55, 188 N.Y.S.2d 168, 159 N.E.2d 665 [1959] ). Moreover, the decedent adequately explained in the will her exclusion of objector therefrom.
Objector failed to identify any knowing misstatement by petitioners to support his objection based on fraud.