Opinion
No. 2022-50524 File No. 2019-1543
06-08-2022
In the Matter of the Estate of James Cher, Deceased.
ANTHONY EMMI, ESQ. Attorney for Petitioner, Emese Olah' THOMAS F. HEWNER, ESQ. Appearing for Agnes Puskas JENNIFER R. COLLESANO, ESQ. Appearing for Antal Zsirai ROCCO LUCENTE II, ESQ. Appearing as Guardian Ad Litem for Isabelle Cser, Andrea Cser and Kaitlin Cser, whose Whereabouts are Unknown, and for Possible Unknown Heirs HON. LETITA JAMES, NYS ATTORNEY GENERAL Appearing for Possible Unknown Heirs MELISSA H. THORE, ESQ. Assistant New York State Attorney General of Counsel
Unpublished Opinion
ANTHONY EMMI, ESQ. Attorney for Petitioner, Emese Olah'
THOMAS F. HEWNER, ESQ. Appearing for Agnes Puskas
JENNIFER R. COLLESANO, ESQ. Appearing for Antal Zsirai
ROCCO LUCENTE II, ESQ. Appearing as Guardian Ad Litem for Isabelle Cser, Andrea Cser and Kaitlin Cser, whose Whereabouts are Unknown, and for Possible Unknown Heirs
HON. LETITA JAMES, NYS ATTORNEY GENERAL Appearing for Possible Unknown Heirs MELISSA H. THORE, ESQ. Assistant New York State Attorney General of Counsel
HON. ACEA M. MOSEY SURROGATE JUDGE
James Cher [hereafter, decedent] died March 5, 2019 at the age of 90. His wife, Margaret Cher [hereafter, Margaret], had predeceased him in 1996, and he had no issue. He was survived by several relatives in Hungary, including his nephew, Antal Zsirai [hereafter, Antal].
On March 19, 2018, decedent executed a Will [hereafter, the March Will] which left $20,000 to a friend, John Puskas [hereafter, John], with the residuary estate left to Antal; and Emese Olah, Esq. [hereafter, Olah], the attorney draftsperson, was nominated as executor. On May 16, 2018, decedent executed another Will [hereafter, the May Will] which eliminated all bequests from the March Will and left his residuary estate to John's wife, Agnes Puskas [hereafter, Agnes]. Olah remained as nominated executor.
Olah filed a petition to probate the May Will on April 11, 2019 , and was issued preliminary letters on May 20, 2019. A citation was issued on May 22, 2019 to all necessary parties, including the New York State Attorney General (see SCPA 1215), and a guardian ad litem [hereafter, the GAL] was appointed to represent the interests of the distributees whose whereabouts were then unknown. A supplemental citation was issued thereafter when two more distributees who lived in Hungary surfaced.
The petition listed a distributee brother of decedent's, Ferenc Cser, and his nephew, Antal [who was adversely affected by the May Will], as interested parties in the proceeding. An amended petition was filed on May 16, 2019, listing 12 additional distributees whose interests would be adversely affected by the May Will, 12 of whom - including also Antal and Ferenc - reside in Hungary, and 2 of whom, a niece and a nephew, were "whereabouts unknown". That listing was amended further thereafter, and the "whereabouts unknown" individuals were also modified.
By Order dated December 23, 2020, this Court replaced the original GAL because a conflict of interest in his representation had developed. That Order was amended by Order dated May 23, 2022 to clarify the representation by the GAL with respect to those persons whose whereabouts were unknown.
An SCPA 1404 hearing was held on April 12, 2021, at which Olah, Diane Weeks [hereafter, Weeks], a witness to the May Will, and Deborah Lafountain [hereafter, Lafountain], another witness to the May Will, testified. Agnes, John, and their son, David Puskas [hereafter, David], were deposed on October 11, 2021.
Objections to probate were filed on June 18, 2021 by Antal. Antal alleged, inter alia, that (1) decedent was not of sound mind or memory and was not mentally capable of making a Will, (2) decedent was not aware of the natural objects of his bounty, (3) decedent was not aware of the nature, extent, and condition of his property, (4) decedent did not understand the scope and meaning of the provisions of the paper writing alleged to be his Will, (5) decedent executed the Will by mistake, and (6) the Will was procured by undue influence and/or duress practiced upon decedent by Agnes, John, Olah, and/or some other person or persons. A verified reply to those objections was filed on August 10, 2021.
Olah has filed a motion for summary judgment seeking dismissal of the objections and admission of the May Will to probate. Antal opposes that motion and has cross-moved for summary judgment denying probate to decedent's May, 2018 Will. The motions having been finally submitted, I now find and decide as follows.
The GAL has filed his report recommending probate.
(A)
On a motion for summary judgment, the moving party must make a prima facie showing of entitlement to judgment as a matter of law (Matter of Cameron, 126 A.D.3d 1167, 1168 [2015]). If such a showing is made, the burden then shifts to the party opposing the motion to "produce sufficient evidence... to establish the existence of material issues of fact which require a trial" (Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324 [1986]). As has been more fully stated:
"Summary judgment may be granted only where it is clear that no triable issue of material fact exists (see, e.g. Alvarez v Prospect Hosp., 68 N.Y.2d 320 [1986]; Phillips v Joseph Kantor & Co., 31 N.Y.2d 307, 291 [1972]. The traditional reluctance to grant summary judgment in probate proceedings has long since passed, and it is now recognized that 'although summary judgment must be exercised cautiously, it is proper in a contested probate proceeding where the proponent submits a prima facie case for probate and the objectant fails to raise any genuine factual issues' (Matter of Minervini, 297 A.D.2d 423, 424 [2002]; Matter of Coniglio, 242 A.D.2d 901 [1997]). Indeed, it is also clear that summary judgment may be granted even where such proceedings involve issues of a fact-sensitive nature, such as fraud and undue influence (see, e.g., Matter of Neuman, 14 A.D.3d 567 [2005]; Matter of Goldberg, 180 A.D.2d 528 [1992]).
To defeat a motion for summary judgment, the opponent must assemble and lay bare affirmative proof to demonstrate the existence of a genuine triable issue of fact (Stainless, Inc. v Employers Fire Ins. Co., 69 A.D.2d 27 [1979], affd 49 N.Y.2d 924 [1980]). Allegations must be specific and detailed, substantiated by evidence in the record; mere conclusory assertions will not suffice (Matter of Newman, 14 A.D.3d 567 [2005]). Moreover, the court is required to search the record when it is engaged in the process of issue finding (Fullan v 142 E. 27th St. Assocs., 1 N.Y.3d 211 [2004]; Insurance A.G. v Moor-Jankowski, 77 N.Y.2d 235 [1991])" (Matter of Zirinsky, 10 Misc.3d 1052 A [2005], emphasis added, affd 43 A.D.3d 946 [2007]; see also Matter of Neumann, 2022 NY Misc. LEXIS 1238, 2022 NY Slip Op 30813[U], Matter of Varrone, 72 Misc.3d 1201 [A] [2021], and Matter of Kubecka, 15 Misc.3d 1129 A [2007]).
A Court may grant probate when it is "satisfied with the genuineness of the [W]ill and the validity of its execution" (SCPA 1408[1]). The Will must have been duly executed, and the testator at the time of its execution must have been competent to make a Will and not under any restraint (SCPA 1408[2]). A testator must sign the Will at its end (EPTL 3-2.1 [a] [1]), and must sign in the presence of at least two attesting witnesses or acknowledge his or her signature to each attesting witness separately (EPTL 3-2.1 [a] [2] and [4]). The testator must also at some time during the execution ceremony declare that the instrument being signed is his or her Will (EPTL 3-2.1 [a] [3]).
The proponent of the Will bears the burden of proving due execution of the Will and testamentary capacity (see e.g. Matter of Kumstar, 66 N.Y.2d 691, 692 [1985]; see also Matter of Sundmacher, 192 A.D.3d 898, 898 [2021]), whereas the burden of proof on the issues of fraud and undue influence rests on the party who asserts such claims (see e.g. Matter of Walther, 6 N.Y.2d 49, 54 [1959]; see also Matter of Kotsones, 37 N.Y.3d 1154 [2022], aff'g 185 A.D.3d 1173 [2020] and Matter of Mele, 113 A.D.3d 858, 860 [2014]).
The issue before this Court is whether Olah has established her prima facie entitlement to summary judgment dismissing the objections and admitting the May Will to probate, and, if so, (1) whether Antal has raised any material issue of fact which would require a trial (see Matter of Bordell, 150 A.D.3d 1446, 1446 [2017]; see also Matter of Pollock, 64 N.Y.2d 1156, 1157 [1985]), or (2) whether Antal has established that the May Will should be denied probate.
(B)
(i)
Agnes and John both testified at the October 11, 2021 deposition. I find the testimony given by each to be credible and persuasive.
Agnes and John met decedent and his wife Margaret in 1991, shortly after Agnes and John emigrated here from Romania. The couples were introduced by common acquaintances from the Buffalo Hungarian Club, and bonded over their shared heritage. Agnes testified that, after Margaret died in 1996, she, decedent, and John became "closer and closer," and that she and John considered decedent a family member. Agnes, John, and their children visited decedent weekly, and celebrated birthdays and holidays with him until his death.
Agnes and John testified that decedent was financially generous to them and their children. After Margaret died, decedent asked John to find a buyer for his house, and gave John half the proceeds when the sale was finalized. Decedent often asked John and his sons for assistance with projects around his house, and paid them when the projects were completed. When David started college, decedent gifted him a car which he was no longer using.
John testified that "nobody" was closer to decedent than him and Agnes, and that decedent had a strained relationship with his Hungarian relatives:
"Q. What do you remember, if anything, about the relationship [decedent] had with his family in Hungary?
A. Almost no relation. Almost no, in the last 15 years.
Q. That's what you... understood?
A. Yes. Nobody visit him. This [Antal], I think, I never seen him. Once, was visited him.
Q. [Antal] did visit [decedent] here?
A. Once. But was I never see him... more than 15 years.
Q. Okay. Did [decedent] tell you before he became ill he had no relationship with his family?
A. Oh, yes. And he told me why... because they want money and they was a big family. If I give somebody more than the other, they was mean to each other and mean to him. This is what he told me... he stopped visiting. Even, even he can. He loved to go [to Hungary]. He didn't go because he said, they just want my money, they don't want me. He want to move back, and nobody offered, nobody, to take care of him" (emphasis added).
After decedent was admitted to Rosa Coplon Living Center [hereafter, Rosa Coplon], Agnes visited him daily and John visited him almost every other day. Agnes testified that during these visits, she and decedent shared stories, walked around Rosa Coplon, and watched his favorite television shows. Agnes also cut decedent's hair, trimmed his nails, brushed his teeth, and prepared meals for him. John stated that he and decedent talked, watched Hungarian films, and went for trips in decedent's car. John also drove decedent to restaurants, the Buffalo Hungarian Club, grocery stores, and to various appointments. John testified that he visited decedent so frequently that the care team at Rosa Coplon thought he was decedent's son.
Agnes did not ask decedent for money in exchange for her care and was not aware that decedent intended to create a personal services agreement for her benefit (see infra at pp. 12- 13).
Decedent used Agnes and John's cellphones to make calls because he did not want a phone of his own. Agnes stated that decedent occasionally spoke with Antal using her cellphone, but that decedent never asked her to leave the room during these or any other phone calls. John testified that he usually left the room when decedent was using his cellphone because "[decedent] put in the phone, you know, loud, and I don't feel comfortable... sometimes he ask me to get out, and I close the door. I remember this because he was very, very independent" (emphasis added).
John testified that decedent named him as his power of attorney several times because of their close friendship and because John was the youngest of decedent's friends. John exercised his power as fiduciary once when decedent was admitted to the hospital. John also received decedent's mail at his home after decedent moved to Rosa Coplon. John stated that he managed decedent's finances according to decedent's directions:
"Q. So you would bring... the [bank statements] to [decedent] at the nursing home?
A. Yes, yes, oh, yes... because he make decision what to do.
Q. He made all the decisions?
A. All the decisions. He was very how do you say - not selfish, a very - what's the word? Very strong, strong-willed. This is why he trusted in me because I never ever cheat one second" (emphasis added).
John stated that, in March 2018, decedent asked him to find a Hungarian attorney to prepare his Will. John recommended his daughter-in-law, Olah, because she is Hungarian and because he believed "she was an independent lawyer with plenty of time" to assist decedent. John facilitated all appointments between decedent and Olah at decedent's request. Agnes testified that she drove Olah to Rosa Coplon to execute decedent's March Will, but that she was not in the room when the execution ceremony took place.
In May 2018, John called Olah to schedule another appointment with decedent so that decedent could execute a new Will. John stated that decedent wanted to make Agnes his sole beneficiary because he "don't want to leave anything, somebody who didn't take care about him. You know, he said, why I leave the money for [Antal]? He didn't do anything, even don't care about me, not coming to visit me." Agnes testified that she was unaware of the specific changes decedent wanted to make in his May Will. Agnes drove Olah to Rosa Coplon to execute decedent's May Will, but she was not in the room when the execution ceremony took place.
(ii)
David testified that he had a close relationship with decedent since he was a child. He stated that he and his relatives considered decedent a member of their family:
"Q. Would you characterize your relationship with him as one of love, that you loved him?
A. Yeah, I'd say that. I do miss him. I mean, I still remember his - his voice and his smile, and I miss - I miss seeing him. I really do.
Q. And would you say that would be also the same with respect to your parents, that they were very close with him?
A. Yes, absolutely. I'd say I was closer with him than with my own grandfather that passed away, because I was just in contact with him, my grandfather that lived in Romania."
David testified that decedent was generous with his money, especially with him and his siblings. As decedent got older and needed more assistance, he paid David to help him with cutting the grass and other household projects:
"Q. David, you had mentioned that [decedent] would typically pay you for helping him out; is that correct?
A. Yes.
Q. Would you have... helped him out whether he paid you or not?
A. Yes. Yea, I - I wouldn't expect anything from him. Yeah, I just - my parents would say, hey, he needs some help, and I'd be like, all right, here I go."
(iii)
At the 1404 hearing, attorney-draftsperson Olah testified that she met decedent through her in-laws, Agnes and John. On or about March 15, 2018, John called Olah to ask if she could prepare a Will for decedent because decedent wanted to work with a Hungarian-speaking attorney. After Olah agreed, John handed his cellphone to decedent so that decedent could explain what he wanted his Will to include.
On March 19, 2018, before decedent executed his March Will, he and Olah made an asset list detailing his various banking accounts. Decedent also asked Olah to draft a personal services agreement to pay Agnes for her care:
"He really loved the nursing home nurses and he loved to talk to them, but he wasn't very satisfied with the care in the nursing home and it meant a lot to him that Agnes provided some extra care and friendship... He discussed with me what are his options and I recommended if he wants this kind of personal care services agreement and he said yes."
Decedent subsequently executed his March Will. Olah stated that she did not disclose that she is Agnes and John's daughter-in-law because John reminded decedent of that fact before decedent executed his March Will.
Olah testified that on or about May 15, 2018, John called her on decedent's behalf to ask if she could draft a new Will naming Agnes as decedent's sole beneficiary. Even though she "had no reason to believe" that John was being untruthful, Olah preferred to discuss this change with decedent privately and in person.
When Olah met with decedent in person on May 16, 2018, he explained that he wanted to make Agnes his sole beneficiary because of his difficult relationship with his family:
"He said that he sent lots of money back to Hungary throughout the years earlier, throughout many years and they didn't thank him and also his relatives knew... that he's in the nursing home and none of them had visited him and it was - I think he was very emotional about that."
Olah stated that decedent was "lucid, his thinking was clear", and "he was absolutely competent to make a will". She tested his mental acuity before the execution ceremony:
"So first before we had a small conversation and we talked about usual things. We talk at the time of small talk, but I also asked about - I mean we had some private time before he executed the will and at that time he talked about his assets... and he talked about his investments. He - and I asked him to list his family members."
Olah determined that decedent had capacity and "was absolutely free from any restraint." She conducted his execution ceremony with Weeks and Lafountain as witnesses, but testified that she did not recall whether Agnes was present in the room. Olah testified about the nature of the execution ceremony:
"Q. And did he ask the two witnesses to witness his signing of the will or did you do that on his behalf?
A. I asked him if this will - if he read this will, if it's his will, Last Will and Testament and if the will contains everything that he want it to contain. And then after he answered yes for all of the questions, I asked him to ask the witnesses to sign as witnesses, the will.
Q. And did you happen to observe the two witnesses - well, did you observe him signing the will?
A. Yes.
Q. And did you observe him signing the will in front of the two witnesses?
A. Yes.
Q. And did you observe the two witnesses signing the will in front of each other?
A. Yes.
Q. And did you observe two witnesses signing in front of him?
A. Yes.
Q. Okay. Did you observe any hearing or visual impairment during this will execution of the May 16, 2018 will?
A. No. [Decedent] - I can't recall exactly. Probably [decedent] had glasses, but he could read the will easily... and he definitely didn't have any hearing impairment."
Olah was confident that decedent understood the nature, extent, and condition of his property:
"Q. Did [decedent] understand the extent of his assets or what assets he had?
A. Yes. As I wrote it in the memo and I can recall that, he mentioned that he had investment - an investment account, he had some shares and he bought them on a very low price - I mean for nowadays it's very low price, but probably at the time when he bought it, it was not. Anyway, the investment and the yearly interest was very nice... and he also mentioned that he doesn't own real he had a home, a house, but he already sold it.
Q. Okay. So is it fair to say that [decedent] understood the size of his estate, the value - approximate value?
A. Yes, he absolutely did."
Olah stated that she and decedent spoke English and Hungarian on May 16, 2018, but that she always spoke English when discussing decedent's May Will:
"Whenever we talked about the will and the execution of the will and the ceremonial part of the will, it was in English. If he asked me some questions in regard of small details like how can we adjust this table or something like that, probably I answered his question in Hungarian if he asked me in Hungarian. And he could easily switch between the languages. He didn't have any problem with that."
(iv)
Weeks, a May Will witness, is a licensed nurse practitioner who has worked at Rosa Coplon for over thirty years. Weeks testified that she cared for decedent five days a week for nearly six months before he signed his May Will.
Weeks stated that Agnes and John visited decedent "regularly". "They would come and talk with him. She would run errands for him. He really enjoyed her company. Would take him outside, take him for a ride around the campus. Company."
Weeks testified that decedent did not suffer from hearing or visual impairments, and described her observations regarding his mental acuity:
"A. He was always alert. He would tell me what he did the night before, if his friends would come and wheel him around the facility, what he saw. He would discuss things that he watched on the news. He was very much into that, what was going on in the world. Of course, if there was any complaints about the staff, he would tell me. And, yeah, he was very... knowledgeable of things.
Q. Okay. And would you consider him having the ability to express himself and be articulate?
A. Oh, very much so.
Q. And would you consider him a person who was decisive and independent thinking?
A. Yes" (emphasis added).
Decedent was "very willing to sign [his May Will]" and was "not in any distress" during the execution ceremony:
"Q. Do you recall who else was there during the will execution?
A. [Olah]. I forgot her name. And Debbie Lafountain and I think her name - one of the - I think one of the - I'm not sure. That's all I can remember for sure, those three. I'm not sure if Agnes was with her or not, so I'm not going to say she was.
Q. Okay. And at that time - during this will ceremony, we'll call it, and execution, right before and when he signed the will, did [decedent] review the will?
A. Oh, yeah, he definitely picked it up, scanned every page, flipped it over, took his name. I remember 'cause I really had to get going and I was thinking, boy, he's reading every page.
Q. Okay. And did he - at the time did he acknowledge that he was satisfied with the terms of the will?
A. Yes.
Q. And did either he or his lawyer on his behalf ask you and the other witness, Deborah Lafountain, to witness him signing the will?
A. Yes.
Q. And did you two witness him signing the will?
A. Yes, we did."
During the execution ceremony, decedent declared that he understood the May Will to be his Last Will and Testament:
"Q. Do you recall him saying that this was a will?
A. I even - I asked him, do you understand what you're singing, your will. I asked him personally and he said yes.
Q. So he declared this to be his will to you?
A. Yes. I didn't wanna sign anything unless I knew for sure he knew what he was signing.
Q. And he indicated that he knew what he was signing, correct?
A. Yes.
Q. And so he understood this will? He told you that directly?
A. Yes.
Q. And that was in front of everyone?
A. Yes."
(v)
Lafountain, the second May Will witness, was a social worker at Rosa Coplon for three years. Lafountain testified that she visited decedent five days a week for approximately five months before his May Will was executed.
Lafountain stated that Agnes and John visited decedent regularly, but that Agnes visited more frequently than John. "She did a lot of things for him, so if he needed something done, she'd go and run for him, buy him clothes. You know, she did a lot for him."
Lafountain did not observe any changes in decedent's mental state between the dates he executed his March and May Wills:
"Q. Miss Lafountain, between March and May did his physical or mental condition change that you could observe?
A. No, not his mental status. Like I said, we assess that every three months, so -
Q. There was nothing unusual going on there?
A. No.
Q. I'm just listening to this and listening to those progress reports. Is it fair to say that [decedent] was a fairly decisive individual?
A. Oh, yeah. Very self-directing.
Q. Do you have a sense that he pretty much did what he wanted?
A. Whatever he wanted to do" (emphasis added).
Lafountain testified that she and Weeks were witnesses to decedent's May Will, and that Agnes was present in decedent's room during his execution ceremony. Lafountain believed that decedent understood that he was executing his May Will:
"Q. Okay... do you recall if [decedent] mentioned or stated or declared that this was his last will, in those words or similar words?
A. Yes.
Q. Okay. And do you recall whether he had any concerns or stated any concerns about the will itself?
A. No, uh-um, and he would 'cause he - he was pretty self-directing. He never, you know, was pushed around or anything. He was - he knew what he wanted and when he wanted it and -
Q. Okay. And at the time... of his signing of the will, was [decedent] aware of what was happening?
A. Oh, yeah... he had a good capability of saying, I don't understand that, or, you know, he would have said something if he didn't.
Q. Okay. And at the time of his signing of the will, do you recall [decedent] being on any medications that would impair his ability to understand what he was doing as far as signing a will?
A. No, uh-um.
Q. And did you observe him having any visual impairment or hearing impairment such that he could not read his will or listen to any directives about his will?
A. No. they didn't have to show him where to sign or anything. He had - well, they said sign here, but then if I have sight impaired residents, they have to put their finger there and they didn't have to do that with him. He signed where they told him with no hesitation. And his hearing was very good even in crowded places. We assess that all the time..." (emphasis added).
Lafountain stated that Olah spoke both English and Hungarian to decedent during the execution ceremony. "If [decedent] spoke to [Olah] in [Hungarian] then she'd answer him, but most of [their conversation] was in English." However, Olah read the May Will aloud to decedent in English.
(C)
(i)
Turning first to the issue of decedent's capacity to make a Will on May 16, 2018, our Court of Appeals, in Matter of Kumstar, supra, at 692, restated the factors that must be evaluated to prove testamentary capacity:
"It is the indisputable rule in a will contest that '[the] proponent has the burden of proving that the testator possessed testamentary capacity and the court must look to the following factors: (1) whether she understood the nature and consequences of executing a will; (2) whether she knew the nature and extent of the property she was disposing of; and (3) whether she knew those who would be considered the natural objects of her bounty and her relations with them (Matter of Slade, 106 A.D.2d 914, 915; see also Matter of Delmar, 243 NY 7)" (see also Matter of Burrows, 203 A.D.3d 1699, 1700 [2022], Matter of Makitra, 101 A.D.3d 1579 [2012] and Matter of Hinman, 242 A.D.2d 900 [1997]).
The capacity required of a testator is less than the law requires to execute other legally binding documents (Matter of Coddington, 281 A.D. 143, 146 [1952], aff'd 307 NY 181 [1954]), and the point at which capacity is required is the precise time of the propounded instrument's execution (Matter of Anella, 88 A.D.3d 993, 995 [2011]; see also Matter of Hedges, 100 A.D.2d 586, 588 [1984] and Matter of Coniglio, 242 A.D.2d 901, 902 [1997]). The law is clear that "until the contrary is established a testator is presumed to be sane and to have sufficient mental capacity to make a valid will" (Matter of Beneway, 272 A.D. 463, 467 [1947]; see also Matter of Sook Li, 72 Misc.3d 988, 997-998 [2021] and Matter of Schmidt, 2017 NY Misc. LEXIS 3182, 2017 Slip Op 31783U).
Here, the May Will witnesses, Weeks and Lafountain, executed affidavits which were sworn to on the same day that decedent's May Will was executed. In each affidavit, Weeks and Lafountain attest that, when decedent executed his Will on May 16, 2018, he:
"could read, write and converse in the English language and was suffering no defect of sight, hearing or speech, or from any other physical or mental impairment that would affect Testator's capacity to make a valid Will."
Olah assured herself of decedent's mental capacity before the May Will execution ceremony by asking him to list his assets and family members. She determined that decedent completed this exercise accurately, and that he was "lucid, his thinking was clear", and "he was absolutely competent to make a will". Olah testified that, before the execution ceremony, she discussed with decedent what property he had, what he wanted to do with it, and whom he wanted his property to benefit. Decedent told Olah that he wanted to remove his previous beneficiaries and name Agnes as the sole beneficiary of the May Will.
Weeks testified that decedent "was very alert" and did not have any impairments that would interfere with his ability to understand or execute his May Will. She stated that she personally asked decedent whether he understood that he was signing his May Will and he answered in the affirmative. Decedent "definitely picked [up his May Will], scanned every page, flipped it over, took his name. I remember 'cause I really had to get going and I was thinking, boy, he's reading every page."
Lafountain stated that she did not observe any changes in decedent's mental state before he executed his May Will. She described decedent as being "very self- directing" and had "a very good capability of saying I don't understand" if he needed clarification. Lafountain stated that decedent understood his May Will and "signed where they told him to with no hesitation."
It is clear from all the foregoing that decedent knew the nature and extent of the property affected by his May Will, and a testator need only have "a general, rather than a precise, knowledge of the assets in his or her estate" (Matter of Walker, 80 A.D.3d 865, 867 [2011]). And equally important, decedent knew exactly whom he wanted to benefit under his May Will. The record clearly establishes that decedent had the requisite testamentary capacity when he executed his May Will (Matter of Curtis, 130 A.D.3d 722, 722-723 [2015]; see also Matter of Doody, 79 A.D.3d 1380, 181 [2010] and Matter of Walker, supra), and Antal has raised no triable issue of fact in that regard.
I conclude, therefore, that the objection regarding decedent's testamentary capacity must be dismissed.
(ii)
Olah, as the proponent of decedent's May Will, bears the burden of establishing that the Will was executed in compliance with EPTL 3-2.1 (see, e.g. Matter of Kumstar, supra; see also Matter of Martinico, 177 A.D.3d 882, 884 [2019] and Matter of Bodkin, 128 A.D.3d 1526 [2015]).
At the 1404 hearing, both witnesses stated that they were asked by decedent to witness his May Will prior to the execution ceremony. During the execution ceremony, both witnesses were present and sat in the same room as decedent. Decedent stated to both witnesses that he was signing his May Will, he acknowledged to them that the document was his Will, and he signed the Will in their presence, after which each witness signed the Will. The attestation clause states:
"The foregoing instrument was willingly signed and executed by the above-named Testator in the presence of us and that said Testator at the same time declared said instrument to be his Last Will and Testament and requested us and each of us to sign our names thereto as witnesses to the execution thereof, which we hereby do in the presence of said Testator and each other on the day and year last above written. /s/ Deborah Lafountain residing at 2800 North Forest Road Getzville, NY 14068 /s/ Diane Weeks residing at 2700 North Forest Getzville, NY 14068"
The foregoing establishes prima facie that the May Will was duly executed, so the "burden then shift[s] to the objectant[s] to produce evidentiary proof in admissible form to... raise a material issue of fact" (Matter of Halpern, 76 A.D.3d 429, 432 [2010]). This requires "positive proof that formal requirements of execution were not met" (Matter of Pilon, 9 A.D.3d 771, 772 [2004]; see also Matter of Buchting, 111 A.D.3d 1114 [2013]).
Antal contends that the May Will was not duly executed because "there is no way for the witnesses to the will to describe fully what was said to Cher" when Olah spoke Hungarian to him during the execution ceremony. However, this allegation is not supported by the record. Lafountain testified that Olah read the May Will aloud to decedent in English, and that Olah spoke mostly English during the execution ceremony. Olah echoed that she spoke English while discussing the May Will, and that if decedent asked her "some questions in regard of small details like how can we adjust this table or something like that, probably I answered his question in Hungarian if he asked me in Hungarian."
I conclude that all formal requirements of the execution were clearly established without evidentiary contradiction. There is no triable issue of fact in that regard, and, accordingly the objections of mistake and lack of due execution must be dismissed.
(iii)
Antal contends next that decedent's May Will was not voluntarily made and that it was the product of undue influence and/or duress. The principles governing a claim of undue influence have been set forth by our Court of Appeals and are well-settled:
"The concept of undue influence does not readily lend itself to precise definition or description. But this court, long ago, has established the criteria by which undue influence is to be determined: 'It must be shown that the influence exercised amount to a moral coercion, which restrained independent action and destroyed free agency, or which, by importunity which could not be resisted, constrained the testator to do that which was against his free will and desire, but which he was unable to refuse or too weak to resist. It must not be the promptings of affection; the desire of gratifying the wishes of another the ties of attachment arising from consanguinity, or the memory of kind acts and friendly offices, but a coercion produced by importunity or by silent resistless power which the strong will often exercise over the weak and infirm, and which could not be resisted, so that the motive was tantamount to force or fear lawful influences which arise from the claim of kindred and family or other intimate personal relations are proper subjects for consideration in the disposition of estates, and if allowed to influence a testator in his law will, cannot be regarded as illegitimate or as furnishing cause for legal condemnation (Children Aid Soc. v. Loveridge, 70 NY 387, 394-95; see also Smith v. Keller, 205 NY 39, 44; Matter of Schillinger, 258 NY 186, 191)" (Matter of Walther, supra, at 53-54).
The party asserting undue influence has the burden of proof (Matter of Fellowes, 16 A.D.3d 995 [2005]). Allegations of undue influence must be specifically pled, including where and when such acts occurred (See Matter of Friedman, 26 A.D.3d 723, 726 [2006]; see also Matter of Colverd, 52 A.D.3d 971, 973 [2008], Matter of Stafford, 111 A.D.3d 1216 [2013], and Matter of Alibrandi, 104 A.D.3d, 1175, 1178 [2013]). To establish undue influence, a party is required to demonstrate that decedent "was actually constrained to act against [their] own free will and desire by identifying the motive, opportunity and acts allegedly constituting the influence, as well as when and where such acts occurred" (Matter of Colverd, supra, at 973; see also Matter of Capuano, 93 A.D.3d 666, 667-668 [2012]; Matter of Alibrandi, supra, at 1177, and Lewis v. DiMaggio, 151 A.D.3d 1296, 1299 [2017]). The influence asserted must rise to a level of "a moral coercion" (Matter of Stafford, supra, at 1217). "Mere speculation and conclusory allegations, without specificity as to precisely where and when the influence was actually exerted, are insufficient to raise an issue of fact" (Id. at 1217, citing Matter of Alibrandi, supra, at 1178 [internal quotation marks and citations omitted]).
Here, Antal urges that decedent "was susceptible to undue influence as a result of his infirmity and dependence on [Agnes and John], who, as his contractual agents, power of attorney, and healthcare proxy, stood in a confidential relationship of trust to him." Antal's claim of undue influence is based on Agnes and John's proximity to decedent and to their friendship. The record shows many instances of kindness shown by Agnes and John to decedent, such as driving him to appointments and assisting him with his daily activities. The record also shows that, in the last few years of his life, decedent gave John his power of attorney to help him when needed, although John testified that he only exercised his power as agent once when decedent was admitted to the hospital.
In Matter of Werner, 36 Misc.3d 1224 A [2011], aff'd 96 A.D.3d 1427 [2012], decedent's brother claimed that the Will's bequests to several neighbors and one relative was, inter alia, the result of undue influence and duress. In rejecting all challenges and admitting the Will to probate, this Court [HOWE, J] explained that, even though decedent's neighbors assisted her "in a limited way with her financial matters when she could not leave [the nursing home] to do so herself, that is hardly the dependency envisioned by the cases which gives rise to one party having dominance over the other." Additionally, Werner's weakened physical condition was not enough to show that she was susceptible to influence because the record clearly showed that she was mentally alert and independent (id) .
And in Matter of Kotsones, supra, our Appellate Division held that, even where a confidential relationship may be said to exist between a testator and a beneficiary, proof that the testator "was actively and personally involved" in managing her affairs - despite the assistance of a beneficiary in that regard - "and in drafting her estate plan" and in directing "her personal attorney and the branch manager at her bank to act in according to her desires based upon her own personal stated reasons", precludes any finding of undue influence.
Antal's allegation that decedent's infirmity caused him to be susceptible to influence is without evidentiary support. The record demonstrates that, in May 2018, decedent had physical ailments which he was aware of. Nevertheless, he dealt independently with the Rosa Coplon staff and with attorney-draftsperson Olah. Additionally, Weeks and Lafountain - Rosa Coplon staff members who interacted daily with decedent - attested that decedent was "always alert", "very self-directing", and "independent" when he executed his May Will.
The record shows that decedent was fully in control of his own affairs, but often needed someone to assist him in the last few years of his life to carry out the transactions he wished to make. Significantly, there is nothing in the record to show that John acted to benefit himself in any way while he was assisting decedent as his fiduciary. Instead, the facts reflect "kind acts and friendly offices" (Matter of Walther, supra, at 54, quoting Children's Aid Soc. v. Loveridge, 70 NY 387, 395) on John's part, not coercion or importunity. Additionally, testimony from Olah, Weeks and Lafountain establishes that decedent never lost his "free will or agency", and that he made his own decisions on all significant issues based on his "own personal motives" (Matter of Kotsones, supra, at 1476).
Furthermore, although Agnes and John assisted decedent in a limited way when he could not leave the Rosa Coplon facility, "that is hardly the dependency envisioned by the cases which gives rise to one party having dominance over the other" (Matter of Werner, supra). The record is filled with evidence that decedent dealt independently the staff at Rosa Coplon and with Olah.
I conclude that the record clearly and convincingly establishes that the May Will was not the product of any undue influence, and that there is no triable issue of fact in that regard.
Finally, I conclude that there has not been any showing of duress, or any triable issue of fact regarding that claim. "A donative transfer is procured by duress if the wrongdoer threatened to perform or did perform any even arguably wrongful act that coerced the donor into making a donative transfer that the donor would not otherwise have made" (see Matter of Rosasco, 31 Misc.3d 1214 [A] [2011]; see also Matter of Bellasalmo, 54 Misc.3d 1216 [A] [2017]). Here, there is no evidence that Agnes, John, or any other person threatened to perform or did perform any even arguably wrongful act which coerced decedent into making a bequest he would not have made otherwise. Therefore, this objection must be dismissed.
(D)
Accordingly, Olah's motion for summary judgment dismissing all objections and admitting the May Will to probate must be, and is hereby granted, and Antal's cross-motion is hereby denied. I direct that decedent's Last Will and Testament, dated May 16, 2018, be admitted to probate forthwith, that full letters testamentary be issued to Olah and the preliminary letters issued to her on May 20, 2019 shall thereupon be revoked.
Finally, the GAL shall efile his fee application and affidavit of services, with a Part 36 form, on or before July 1, 2022, copied to all other counsel, who shall have until July 15, 2022 to file any response thereto, after which this Court will consider the matter on the papers.
This decision shall constitute the Order of this Court and no other or further order shall be required.