Opinion
No. 2011–3799.
05-13-2014
In the Matter of the ESTATE OF Dorothy LONGLEY, a/k/a Dorothy H. Longley, Deceased.
Kathryn A. Jackson, Esq., Attorney for the Preliminary Executor Mary Ann Lathan. Polowitz & Schwach, LLP, Co–Counsel for the Preliminary Executor Mary Ann Lathan, Lawrence R. Schwach, Esq., of Counsel. Michael Jonascu, Esq., Attorney for Ruth Ann Salvador.
Kathryn A. Jackson, Esq., Attorney for the Preliminary Executor Mary Ann Lathan.
Polowitz & Schwach, LLP, Co–Counsel for the Preliminary Executor Mary Ann Lathan, Lawrence R. Schwach, Esq., of Counsel.
Michael Jonascu, Esq., Attorney for Ruth Ann Salvador.
BARBARA HOWE, J.
Decedent, Dorothy Longley, died at age 90 on August 22, 2011. Her husband had predeceased her and they had had no children, but she was survived by her sister, Ruth Ann Salvador [hereafter, Ruth Ann], and her brother, Earl Horn.
Decedent's niece, Mary Ann Lathan [hereafter, Mary Ann ], has offered a document for probate entitled "Last Will and Testament of DOROTHY LONGLEY", dated December 11, 2010. In essence, that Will leaves numerous specific bequests to charitable organizations, cash bequests to various legatees, fifty percent of the residuary estate to Mary Ann and fifty percent of the residuary estate to Mary Ann's four children; and it nominates Mary Ann as the fiduciary of the estate.
Mary Ann is Earl Horn's daughter.
The record reflects that decedent had never had a prior Will.
Objections to probate have been filed by Ruth Ann. She alleges:
"1.That the said DOROTHY LONGLEY was not at the time of the making of said alleged Will of sound mind and memory and capable of making a Will, and she thus lacked requisite testamentary capacity at such time.
2. That the said paper writing was not freely or voluntarily made or executed by the said DOROTHY LONGLEY, as her last will and testament, but that the said paper was obtained and procured by fraud and undue influence of MARY ANN LATHAN, the primary legatee and devisee named therein, and by other persons acting in concert or privity with the said MARY ANN LATHAN, including but not necessarily limited to the son-in-law of said MARY ANN LATHAN, and/or by others whose names are currently unknown to the objectant herein. The signature of the decedent was thereby obtained and the subscription and publication thereof was procured by such undue influence as to constitute a moral coercion brought to bear upon the decedent, thus restraining independent action and destroying free agency or which otherwise constrained the decedent to do that which was against her free will and desire.
3. That the said instrument offered for probate was not duly executed as required by law in that the said DOROTHY LONGLEY did not request one or both of the alleged attesting witnesses to act in such capacity as a witness or witnesses thereto.
4. That the execution of the alleged will of DOROTHY LONGLEY was obtained by duress, in that she was essentially deprived of her free will in the execution of the will and the steps leading up to the execution of the will" (emphasis added).
Pending now before me is a motion by the estate for summary judgment seeking to dismiss the objections and admit the December 11, 2010 Will to probate. Ruth Ann opposes that relief, and each side has submitted a memorandum of law on the issues.
(I)
Before admitting a Will to probate, a Court must inquire particularly into all the facts and must be satisfied with the genuineness of the Will and the validity of its execution (see SCPA 1408[1] ). The proponent of a Will must establish that it was duly executed pursuant to EPTL 3–2.1. A testator must sign the Will at its end (EPTL 3–2.1[a][1] ), and must either sign in the presence of at least two attesting witnesses, or acknowledge his signature to each attesting witness separately (EPTL 3–2.1[a][2] and [4 ] ). And, generally, the testator must declare at some time during the execution ceremony that the instrument signed is his Will (EPTL 3–2.1[a][3] ).
The legal standards for deciding a motion such as that pending before me are clear. Procedurally:
"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 [1972]. The traditional reluctance to grant summary judgment in probate proceedings has long since passed, and it is now recognized that [a]lthough summary 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 when 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, 14AD 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 1052A [2005], emphasis added, affd 43 AD3d 946 [2007] ; see also, Matter of Colverd, 52 A.D.3d 971 [2008], Matter of Ryan, 34 A.D.3d 212 [2006], and Matter of Kubecka, 15 Misc.3d 1129A [2007] ).
A Court may grant probate when it is satisfied that the Will is valid. Where it appears "that the will was duly executed and that the testator at the time of executing it was in all respects competent to make a will and not under restraint it must be admitted to probate" (SCPA 1408[2], emphasis added). 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] and Matter of Moser, 27 Misc.2d 415 [1961] ; see, also, PJI 7:28 ), whereas the burden of proof on the issue of undue influence or fraud rests upon the party who asserts such claim (see, e.g., Matter of Walther, 6 N.Y.2d 49, 54 [1959] ; see also Matter of Mele, 113 A.D.3d 858, 860 [2014] and Matter of Paigo, 53 A.D.3d 836, 839 [2008] ).
The issue at this juncture is whether the estate has established prima facie its entitlement to summary judgment admitting the Will to probate, and, if so, whether Ruth Ann has raised any material issues of fact which would require a trial (Matter of Pollock, 64 N.Y.2d 1156 [1985] ).
(II)
Decedent was born in 1920, and was trained as a school teacher. She taught the 4th, 6th and 7th school grades until she retired from teaching in 1984.
In 1944, she married her husband, Russ, who was also a teacher. He died on May 31, 2003, and his Will left his entire estate to decedent.
The general pedigree information comes from the estate file of Russell Longley in this court [# 2003–2904], of which I take judicial notice, and from the affirmation/report of David Polak, Esq., dated April 14, 2011, the court evaluator in a Supreme Court proceeding involving decedent in 2010–2011 (see exhibit C to the estate's moving papers).
Decedent's sister, Ruth Ann, testified at her deposition that she and decedent had largely been estranged since the death of their mother in 1994. According to Ruth Ann:
"My mother died. My mother had a will. A very small will. In fact, when she went to this lawyer, she really didn't know him. She was just on the street. My mother had two things that were very important to her. One that my mother's diamond engagement ring would go to my brother and that Lori and Mary Ann would each get a thousand dollars apiece.
The will disappeared. Dorothy had taken it. So my brother never got the ring and this is where trouble started right there."
After that, Ruth Ann and decedent would speak at a funeral or a wedding, and later sometimes would speak on the phone, but the relationship was not close.
Decedent's niece, Lori Hartig [hereafter, Lori], Ruth Ann's daughter, was asked at her deposition to describe decedent:
"Q. I have to ask you because it's quite telling when you said she was Aunt Dorothy. Tell us about her personality.
A. Aunt Dorothy's nickname was the duchess. She always had a very almost royal bearing. She expected things the way they were to be and that's how she expected them and she expected them to always be that way.
Q. Would you describe her as friendly?
A. Oh, yes.
Q. Friendly toward all people, not just her immediate family and friends?
A. No. She was always very outgoing, friendly.
Q. She liked her job as a teacher, didn't she?
A. She did, yes.
Q. Did she talk about her students, former students?
A. Every once in a while. I knew that Tom Weaver, Kathy Weaver's husband, had been one of her prior students.
Q. Would you described her as a trusting individual?
A. In some things. Not in all.
Q. Give me an example.
A. She did not like people in her business. She was not thrilled with-she didn't believe anybody needed to know her business .
Q. Very private about her personal affairs, her financial affairs and things of that nature.
A. Yes, sir.
Q. Her legal affairs?
A. Yes, sir.
Q. Was she a person that you would describe as someone who is open to suggestion?
A. Before February, I don't feel she was any more open to suggestion than anybody else would be. You would tell her your opinion. If she saw it and liked it, she might change her mind. She might not. There were things she was very adamant on; religion, things like that. You couldn't change her mind on something like that.
Q. So morals or values, ingrained values, were something that she would not be very flexible on.
A. Correct" (emphasis added).
On February 2, 2010, decedent met with attorney Kathryn Jackson. Jackson drafted a Will, health care proxy, and power of attorney for decedent to review. This preliminary draft of decedent's Will left most of decedent's personal property to Lori, and it split the residuary estate equally among Lori, Mary Ann, and Richard Longley (her predeceased husband's nephew). Richard Longley and Thomas Alcamo were named fiduciaries of the estate.
Also in February, 2010, decedent asked her niece, Lori, who was living in Tennessee, to come to visit with her. Decedent expressed concern to Lori that Richard Longley may perhaps have taken money from her. Lori arranged to visit her aunt for several days, starting February 13, 2010.
During that visit, Lori saw the documents at her aunt's house which Jackson had drafted, and she was surprised to find Richard and Thomas named as fiduciaries. According to Lori and Ruth Ann, decedent had previously told both of them that Lori would look after decedent's health care needs and finances if there came a time when such assistance was needed. Lori testified that, at decedent's request, she contacted Jackson and requested certain changes to a number of the documents which Jackson had sent to decedent for review. These new terms would have named Lori as executor, power of attorney, and health care proxy. Jackson told Lori she would not make any of the requested changes unless decedent herself told Jackson to make them.
Ruth Ann said that this prospective "arrangement" was mentioned years before "when Lori graduated from college", and she also said that part of the "arrangement" was that, in exchange, Lori would inherit decedent's "[h]ouse, the furniture, the cars."
Soon thereafter, decedent's relationship with Lori began to deteriorate. Decedent expressed concern that Lori was trying to take charge over her personal affairs, and she also believed that Lori had taken two pieces of jewelry from her. When Lori left decedent's house on February 23rd to return to Tennessee, she planned to come back in early March to stay with decedent for a month. However, although she returned to Erie County around March 5th, she did not stay with her aunt because her aunt had called her in Tennessee and said "I don't want you to stay with me in March."
On March 15, 2010, Lori made a referral about decedent to the Erie County Department of Protective Services for Adults [hereafter, ECDPSA]. The intake notes from ECDPSA indicate Lori's concern that decedent's "short term memory is very bad', and doesn't think it's safe for client to be alone in her house any more." A call by a ECDPSA worker to decedent on March 16, 2010 resulted in the following case note:
After extensive on-going contacts with decedent throughout 2010, which ended on December 1, 2010, ECDPSA concluded that decedent's needs were being fully met with the assistance of Mary Ann and Kathy Weaver (a nurse-practitioner neighbor of decedent's). See, generally, exhibit K [the certified ECDPSA records] to the estate's motion papers.
"Ms. Longley said that she is doing well and does not need assist at this time. She claims that she can cook for herself and does her own housekeeping. Ms. Longley's nephews take her shopping and her neighbor who is a retired RN checks on her all of the time and will take client's BP if asked. Ms. Longley also shared that her doctor is Dr. Divan which she sees once a year or if she becomes sick and needs to be treated. Client claims that she got a flu shot and fortunately has not [been] sick at all. When asked if client had any concerns or if she felt that anyone was taking advantage of her or harming her, she responded that her niece Lori was recently in town and started some trouble but everything is resolved now. Ms. Longley said that people thought that things were missing but they were only misplaced. She denied being abused or exploited and said that she is doing fine and is lucky to have so much help from her family and friends. Ms. Longley was forthcoming with information, sounded to be clear and oriented, she seemed to answer all questions appropriately " (emphasis added).
The same caseworker also spoke to decedent's neighbor, Kathy Weaver, on March 16, 2010:
"Kathy shared that client has anxiety and had an episode a couple weeks ago which is not like her. Kathy has been monitoring client's BP and shared that Ms. Longley was not taking her BP meds because she read an article about possible side effects of her BP meds.... Kathy feels client is lucid and clear, her home is clean, she cooks for herself and as far as Kathy knows Ms. Longley takes care of her own bills " (emphasis added).
On March 17, 2010, Lori, Ruth Ann and Earl Horn went to decedent's home to try to convince decedent she needed medical attention:
"We all went there to try and talk her into going to the doctor and we were recording that so that we could show her you said this, this is what you're saying now. Do you see that you're confused because she would not believe things that we were saying."
Decedent became so upset by these actions that she told everyone to leave and never return to her home again:
"She seemed upset with the whole conversation and she basically told all of us to get out."
Lori and decedent never really reconciled after that.
In September 2010, after decedent suffered a fall requiring medical treatment, Mary Ann began spending weekends at decedent's home. With the help of Kathy Weaver, decedent's neighbor, Mary Ann provided decedent with support and assistance and began arranging for home health care aides.
On September 13, 2010, attorney Jackson met with decedent at her home. Decedent presented Jackson with a revised draft of the Will which Jackson had sent to her in February. In this revised draft, Mary Ann was named executrix and a significant beneficiary of decedent's estate.
On October 15, 2010, Ruth Ann filed a petition in Supreme Court seeking the appointment of her daughter Lori as personal needs and property guardian for decedent under article 81 of the Mental Hygiene Law. Attorney Jackson represented decedent in that proceeding. Ultimately, Supreme Court issued an order appointing Mary Ann as guardian, on decedent's consent. The court evaluator's affirmation/report (see supra, at p. 6, fn. 3) made the following observations:
"At a conference with the Court, in the hallway, Lori played for the undersigned an audio tape recording of her, her mother, Ruth Ann, and Ruth Ann's husband when they went to the AIP's home to have an intervention' with her, where the AIP became very annoyed and told them to leave and not return....
Lori, Ruth Ann and her husband became very argumentative that the AIP had claimed that Lori had taken the AIP's parent's rings from her dresser.
Ruth Salvador stated that her sister, the AIP, needed to be placed in a nursing home, which is completely contrary to the clear wishes of the AIP.
Dorothy Longley is an 89 year-old female who was born on October 27, 1920. She has resided alone in her home at 41 Colonial Drive in Snyder, New York 14226.
Ms. Longley was a very pleasant woman. She told me she had last worked as a teacher at Smallwood Elementary in 1984, where she taught 4th, 6th and 7th grades over the years. Her late husband, Russell, was also a teacher but had passed away 7 years earlier.... When asked who maintains her property, she stated that there were people who did the gardens outside, cut the grass and did snow removal in the winder. She does not like taking medications therefore she was not taking any.
She stated that something happened with Ruth that she should not have done and for that Ms. Longley did not want Ruth to have anything to do with her money. She was hesitant to explain what had happened but was upset talking about it and appeared to have wanted to keep it private.
If anyone was going to be in control of her affairs, she would want her brother Earl and his daughter, Mary Ann Lathan, to be in control.
Throughout my interview with Ms. Longley, I found the most significant of all comments from Ms. Longley to be, if she [Lori] has a penny of my money I'll turn over in my grave', I will turn over in my grave', I don't want anything to do with Ruth and Lori' ... they'll do anything to get my money and house'....
It was abundantly clear that Ms. Longley was frustrated with Ruth and Lori and clearly expressed her disapproval of either Ruth or Lori presiding over her personal affairs, let alone having access to her money.
I spoke with Kathy Weaver who is a neighbor who lives around the corner and was a former student of Ms. Longley years ago. She has been a nurse for 26 years .... She states that the AIP does well on days when she eats regularly .... She did acknowledge that Ms. Longley has some memory problems and that she can get annoyed with people .... Ms. Weaver acknowledged that the AIP needed help but would function best at home in her own environment and that she will continue to check in on her as she lives nearby and can easily stop over.
CONCLUSIONS AND RECOMMENDATIONS
... it is abundantly clear that the AIP does not wish to have her sister Ruth Ann Salvador or her niece, Lori Ann Hartig, involved in the management of her property or her care and treatment " (emphasis added).
Decedent finally executed her Will on December 11, 2010. Attorney Jackson testified what prompted decedent to finally act on the various drafts:
"Q. Okay. Did you explain to her at any time what would happen if she were to die intestate?
A. Yes, I did.
Q. And how did she respond?
A. She was very upset with the thought that her sister could possibly inherit half of her estate and that's what encouraged her to go forward and to a will. I think before that she really didn't understand the importance of doing it and she kept putting it off. And after I explained that to her, she understood the importance of going through with it.
Q. When did you explain that to her?
A. I don't remember exactly when. It was—I think I explained it to her on more than one occasion and then when the guardianship proceeding started, that's when it really hit home with her that it could really happen, so that's when she said, let's get it done " (emphasis added).
(III)
(a)
DUE EXECUTION
" ‘Where, as here, the attorney-draftsperson supervised the will's execution, there was a presumption of regularity that the will was properly executed in all respects (see, Matter of Herman, 289 A.D.2d 239 [2001] ; Matter of Finocchio, 270 A.D.2d 418 [2000] ’)" (Matter of James, 17 A.D.3d 366, 367 [2005], quoting Matter of Clapper, 279 A.D.2d 730, 731 [2001] ; see also Matter of Dane, 32 A.D.3d 1233 [2006] ). Moreover, where an instrument contains an attestation clause, it is "entitled to considerable weight" (Matter of DiBiasi, 2008 N.Y. Misc. LEXIS 3595; see also Matter of Zipkin, 3 Misc.2d 396 [1956] ), and the attestation clause permits the inference that the required statutory requirements have been satisfied (see, Matter of Halpern, 76 A.D.3d 429, 431 [2010] and Matter of Hirschorn, 21 Misc.3d 1113A [2008] ).
The SCPA 1404 testimony and the detailed proofs of Will satisfactorily establish that decedent's December 11, 2010 Will was duly executed (see, EPTL 3–2.1 ):
"The petitioners demonstrated their prima facie entitlement to judgment as a matter of law dismissing the objection based on lack of due execution by submitting the deposition testimony of the attorney who drafted the will and supervised the execution ceremony, along with the testimony of the two attesting witnesses, which demonstrated that the statutory requirements for due execution were satisfied. Moreover, the will contained an attestation clause and a self-proving affidavit,' which gave rise to a presumption of compliance with the statutory requirements (see Matter of Rottkamp, 95 A.D.3d 1338, 1339, 945 N.Y.S.2d 394 ; Matter of Moskoff, 41 A.D.3d 481, 482, 836 N.Y.S.2d 708 ). In opposition, the objectants failed to raise a triable issue of fact (see Matter of Rottkamp, 95 A.D.3d 1338, 1339, 945 N.Y.S.2d 394 ; Matter of Malan, 56 A.D.3d 479, 479, 866 N.Y.S.2d 774 )" (Matter of Mele, supra, at 860, 979 N.Y.S.2d 403, emphasis added).
Here, just as with the objectants in Mele, Ruth Ann has failed to make any evidentiary showing that a triable issue of fact exists as to due execution.
(b)
TESTAMENTARY CAPACITY
In Matter of Kumstar, at 692, 496 N.Y.S.2d 414, 487 N.E.2d 271, our Court of Appeals restated the familiar tests pertaining to the issue of 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, 483 N.Y.S.2d 513 ; see also, Matter of Delmar, 243 N.Y. 7, 152 N.E. 448 )" (see also, Matter of Williams, 13 A.D.3d 954, 955 [2004] and Matter of Hinman, 242 A.D.2d 900 [1997] ).
With regard specifically to the mental state of a testator at the time a Will is executed, our Court of Appeals, in Matter of Delmar, 243 N.Y. 7, 14 [1926], put the standard this way:
" ‘What is meant by sound and disposing mind and memory?’ The answer has been frequently given. The mind of testatrix as to its thinking and judging powers at the time of executing the instrument proposed for probate must be clear enough to be capable of interfering with the disposition of the estate by a prior will with some degree of judgment and discretion. The testatrix must retain sufficient active memory to collect in her mind without prompting the necessary elements of the business to be transacted and to hold them a sufficient length of time to understand their relations to each other and to form some rational judgment in relation to them. (Delafield v. Parish, 25 N.Y. 9, 44 ; Matter of Will of Snelling, 136 N.Y. 515, 32 N.E. 1006 ; Matter of Heaton, 224 N.Y. 22, 29, 120 N.E. 83 )."
The law is clear that a testator is presumed to be competent (see, Matter of Betz, 63 A.D.2d 769 [1978] and Matter of Antonetz, 2011 N.Y. Misc. LEXIS 2846, 2011 N.Y. Slip Op 31586U [2011] ). Moreover, "less capacity is required to make a will than is required to execute other legal documents or contracts (see, Matter of Coddington, 281 App.Div. 143 [1952], affd 307 N.Y. 181 [1954] )" (Matter of Elkan, 22 Misc.3d 1125(A) [2009] ; see also Matter of Goldberg, 153 Misc.2d 560, 564 [1992] ["It is hornbook law that less mental capacity is required to execute a will than any other legal instrument. The reasons for this lower standard stem from the concept of a will as the testator's last act, and from considerations of fairness which militate against depriving elderly or infirm testators of the right to dispose of their property"] ).
It is well-established that affidavits executed by attesting witnesses also create a presumption of testamentary capacity (see, Matter of Castiglione, 40 A.D.3d 1227 [2007] and Matter of Ruparshek, 36 A.D.3d 998 [2007] ).
And, as Matter of Williams, supra, at 957, 787 N.Y.S.2d 444, for example, establishes, "the appropriate inquiry is whether the decedent was lucid and rational at the time the will was made' (Matter of Buchanan, 245 A.D.2d 642, 645 [1997] )" (see also Matter of Makitra, 101 A.D.3d 1579, 1580 [2012] ). The focus of the inquiry is upon "the strength or weakness of [decedent's] mind at the exact hour of the day of execution" (Matter of Hedges, 100 A.D.2d 586, 588 [1984] ; see also Matter of Butner, 40 Misc.3d 1217A [2013] ).
The near-contemporaneous self-proving affidavit of the attesting witnesses to the Will—one of whom was the attorney-draftsperson, the other decedent's neighbor who had known her since 1985—states that, at the time of the Will's execution, decedent was
The Will was executed December 11, 2010. One witness signed the self-proving affidavit on December 13, 2010 and the other on January 17, 2011.
"of sound mind, memory and understanding, not under any restraint or in any respect incompetent to make a will ... and was not suffering from any impairment of sight, hearing or speech or from other physical or mental impairment which would affect her capacity to make a valid will".
At the 1404 examination, decedent's neighbor, Mary Ann Schriever, who acted as a witness to the Will's signing, said she saw nothing unusual or out of the ordinary about decedent that day, and Shriever testified decedent was fully alert and "oriented". Attorney Jackson, who drew the Will and also witnessed its execution, gave the following 1404 testimony:
"Q. What was your opinion as to her capacity at that time?
A. She was very sharp. She knew exactly what she wanted. She did ask me a couple times as we were going through it and said, now, are you sure my sister's not gonna get anything; and I said, no. I'm sure, don't you worry. And we just read through the whole thing. And as I said, she had to chat about—you can see how many different names she has in there and she had to stop and chat about almost every one of them" (emphasis added).
In opposing the summary judgment motion, Ruth Ann contends that decedent was suffering at the time from dementia, and that the record presents a triable issue of fact as to her capacity when she executed her Will. I do not agree.
First, the law is settled that "mere proof that the decedent suffered from old age, physical infirmity and progressive dementia is not necessarily inconsistent with testamentary capacity" (Matter of Butner, supra, citing inter alia, Matter of Fiumara, 47 N.Y.2d 845, 847 [1979] ). And, "[w]here there is direct evidence that the decedent possessed the understanding to make a testamentary disposition, even "medical opinion evidence assumes a relatively minor importance" ( [Matter of ] Makitra [101 A.D.3d 1579, 1580 (2012) ]' " (Matter of Alibrandi, 104 A.D.3d 1175, 1176 [2013] ; see also Matter of Mildred M.J., 43 A.D.3d 1391 [2007] ).
Second, the "medical evidence" proffered by Ruth Ann is largely found either in a letter written by Dr. Steinberg a few months after the Will was executed or in decedent's death certificate. In the former—which is not in evidentiary form—Dr. Steinberg opines that decedent "is a high functioning dementia patient" (emphasis added). In the latter, when decedent died, Dr. Steinberg stated that decedent had been suffering from "advanced dementia" for some years.
Dr. Steinberg began acting as decedent's primary care physician in December, 2010, treating with her until her death.
I find that none of the circumstances pointed to by Ruth Ann are sufficient in the context of this case to raise a triable issue of fact. Decedent's neighbor of over 25 years said decedent was competent on December 11, 2010 to execute her Will, and the attorney-draftsperson, a lawyer with 27 years of experience in the estate field at that time, concurred.
I conclude that the estate has satisfactorily met its burden on the issue of decedent's competency at the time, and that Ruth Ann's showing is legally insufficient to require a trial on that issue. See Matter of Slade, 106 A.D.2d 914, 915 [1984].
(c)
UNDUE INFLUENCE AND FRAUD
In Matter of Walther, supra, at 53–54, 188 N.Y.S.2d 168, 159 N.E.2d 665, our Court of Appeals set out the principles governing a claim of undue influence:
"The concept of undue influence does not readily lend itself to precise definition or description. But this court, long ago, had established the criteria by which undue influence is to be determined: It must be shown that the influence exercised amounted 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 a silent resistless power which the strong will often exercises 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 claims 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 last will, cannot be regarded as illegitimate or as furnishing cause for legal condemnation ' (Children's Aid Soc. v. Loveridge, 70 N.Y. 387, 394–395 ; see, also Smith v. Keller, 205 N.Y. 39, 44, 98 N.E. 214 ; Matter of Schillinger, 258 N.Y. 186, 191, 179 N.E. 380 )" (emphasis added).
Moreover, "[a] mere showing of opportunity and motive to exercise undue influence is insufficient to present a triable issue of fact, without evidence that undue influence was actually wielded (see, Matter of Walther, 6 N.Y.2d 49, 55, 188 N.Y.S.2d 168, 159 N.E.2d 665 )" (Matter of Coniglio, 242 A.D.2d 901, 902 [1997] ). "To establish undue influence, it must be demonstrated that the acts of the influencing party are shown to effectively make it [his or her] will and not the will of the decedent" ‘ (Matter of Clapper, 279 A.D.2d 730, 732, 718 N.Y.S.2d 468, quoting Matter of Klitgaard, 83 A.D.2d 651, 442 N.Y.S.2d 590 )" (Matter of Seelig, 13 A.D.3d 776, 777 [2004] ; see also, Matter of Stafford, 111 A.D.3d 1216, 1217 [2013] ).
As the Appellate Division, Third Department, stated in Matter of Paigo, supra, at 839–840, 863 N.Y.S.2d 508, "[b]ecause direct proof of undue influence is rare, it may be demonstrated by circumstantial evidence of motive, opportunity and the actual exercise of such influence (see Matter of Malone, 46 A.D.3d 975, 977, 846 N.Y.S.2d 782 (2007) ]; Matter of Castiglione, 40 A.D.3d 1227, 1228, 837 N.Y.S.2d 360 (2007) ]" (emphasis added). Furthermore,
"[t]he burden of establishing undue influence is always upon the party seeking to establish it (Matter of Walther, 6 N.Y.2d 49, 188 N.Y.S.2d 168, 159 N.E.2d 665 ). It has been eloquently expressed that it is impossible to define or describe with precision and exactness what is undue influence; what the quality and extent of the power of one mind over another must be to make it undue, in the sense of the law, when exerted in making a will.' (Rollwagen v. Rollwagen, 63 N.Y. 504, 519 ). Factors which will be examined when determining whether a testator was subjected to undue influence include his physical and mental condition (see Matter of O'Brien, 182 A.D.2d 1135, 583 N.Y.S.2d 100 ). Conversely, one who is capable of acting independently is unlikely to be susceptible to the exercise of undue influence (see Matter of Mahnken, 92 A.D.2d 949, 460 N.Y.S.2d 671 ). Also relevant to a finding of undue influence is a change in one's testamentary plan from a prior will (see Matter of O'Donnell, 91 A.D.2d 698, 457 N.Y.S.2d 609 ). " (Matter of Kubecka, supra, emphasis added).
It has been observed that a claim of undue influence "is an affirmative assault on the validity of a will" (Matter of Scher, 20 Misc.3d 1141A [2008] ). So, where circumstantial evidence is relied upon on this issue, "this evidence must be of a significant nature (Matter of Fellows, 16 A.D.3d 995 [2005] )" (id. ).
To support her claim of undue influence, Ruth Ann contends that decedent's decision to alter her "testamentary scheme" is "de facto evidence of undue influence in the procurement of the terms of the will by Ms. Lathan." Ruth Ann also contends that Mary Ann acted in concert with her son-in-law, Don O'Geen, an assistant district attorney for Wyoming County, in memorializing the terms of decedent's Will.
First, as the Court in Matter of Sher, supra, noted, "[a] change in testamentary intention, as bearing on the allegation of undue influence in procuring a will, may be an important circumstance but its force depends mainly upon its connection with associated facts (Horn v.Pullman, 72 N.Y. 269 )." Here, the record reflects that decedent had never had a prior Will. Contrary to Ruth Ann's assertion, decedent's revision of a prior Will draft is insufficient to present a triable issue of fact, especially when it is absolutely clear, and without even a hint of evidentiary contradiction, that decedent became angry at Lori in February and March, 2010, because she believed—correctly or not—that Lori (a) may have taken two of her rings, and (b) was trying to force her to take steps regarding her personal circumstances which she did not wish to take. That feeling continued unabated as decedent's later comments to attorney/court evaluator Polak show.
Second, Ruth Ann is unable to refer to any specific date or specific incident in which any alleged undue influence occurred. As previously discussed, "[a] mere showing of opportunity and motive to exercise undue influence is insufficient to present a triable issue of fact, without evidence that undue influence was actually wielded (see, Matter of Walther, 6 N.Y.2d 49, 55, 188 N.Y.S.2d 168, 159 N.E.2d 665 )" (Matter of Coniglio, 242 A.D.2d 901, 902 [1997] ; see also, Matter of Alibrandi, supra ).
A "motion for summary judgment may not be defeated by charges based upon surmise, conjecture, and suspicion" (Shapiro v. Health Ins. Plan of Greater NY, 7 N.Y.2d 56, 63 [1959] ). That is all Ruth Ann has offered here.
Finally, with respect to the claim of fraud, Ruth Ann has withdrawn her objection on that ground.
(IV)Ruth Ann urges that evidence essential to justify opposition to the estate's summary judgment motion may exist but cannot now be stated, and that, for that reason, the motion should either be denied or deferred (see CPLR 3212[f] ). In this regard, Ruth Ann states that she "should be allowed to depose" (1) Dr. Steinberg, (2) Jill Fowler, ECDPSA case manager, (3) a "personal aide who attended [decedent] at the Will's execution," and (4) "any other person who can testify as to their observation of [decedent's] behavior from February to December 2010."
I find no merit to any of these claims.
Decedent died in August, 2011 and the 1404 examination of witnesses took place on December 14, 2011. Ruth Ann was represented by counsel at the 1404 hearing, and, from the record before me, she has done nothing in the over two years since then to obtain the discovery she now contends is "essential". Thus, Ruth Ann has failed to "demonstrate a reasonable attempt, prior to the motion, to pursue the discovery now claimed to be necessary' (Automergic Chemicals Corp. v. Hartford Acc. & Indem. Co., 193 A.D.2d 551 [1993] ; see Kenworthy v. Town of Oyster Bay, 116 A.D.2d 628, 629 [1986] )" (Walsh v. Aspen Square Mgmt., Inc., 43 AD3d 1411, 1412 [2007]; see also Kai Lin v. Strong Health, 82 AD3d 1585 [2011] ).
Moreover, as the Appellate Division, Second Department, observed in Williams v. Spencer–Hall, 113 A.D.3d 759, 760 [2014] :
"The mere hope or speculation that evidence sufficient to defeat a motion may be uncovered during the discovery process is insufficient to deny the motion' (Lopez v. WS Distrib., Inc., 34 A.D.3d 759, 760, 825 N.Y.S.2d 516 )" (see also Chester v. Alsol Enterprises, Ltd., 95 A.D.3d 922 [2012] and Mancuso v. Allergy Assoc. of Rochester, 70 A.D.3d 1499, 1501 [2010] ).
Here, all Ruth Ann's claims about requested discovery are entirely speculative.
Thus, there is no basis either to deny or to defer the estate's motion pursuant to CPLR 3212(f).
(V)
Accordingly, and for the reasons stated above, I conclude (1) that the estate has established its entitlement to summary judgment as a matter of law and that Ruth Ann has failed to raise any triable issue(s) of material fact, (2) that all the objections interposed to the probate of decedent's December 11, 2010 Will must be, and they hereby are, dismissed, and (3) that decedent's December 11, 2010 Will should be, and it hereby is, admitted to probate.
This decision shall constitute the Order of this Court and no other or further order shall be required.