Opinion
May 31, 1994
Appeal from the Surrogate's Court, Nassau County (Radigan, S.).
Ordered that the decree is affirmed insofar as appealed from; and it is further,
Ordered that the order dated May 18, 1992, is affirmed; and it is further,
Ordered that the respondent is awarded one bill of costs, payable by the appellant personally.
We find that the proponent of the will met her burden of establishing the testamentary capacity of the testatrix. At trial the uncontroverted testimony of the two subscribing witnesses (one of whom benefits indirectly under the will because her husband was to receive a bequest), and the attorney-drafter of the will, established that the testatrix, although aged, was in good health, mentally sound, and knew the extent of her property, the natural objects of her bounty, and the nature and consequences of the dispositions thereto in her will. Under the circumstances presented here, the jury could not have rationally concluded that the testatrix was unaware of the contents and nature of her will. Thus, the court properly granted judgment as a matter of law to the proponent on the issue of testamentary capacity (see, Matter of Fico, 169 A.D.2d 832, 832-833; Matter of Schaffer, 148 A.D.2d 540, 541; see also, Matter of Windheim, 192 A.D.2d 337).
Contrary to the appellant's assertion, the record supports the jury's finding that the will dated December 2, 1985, was not procured by the undue influence of the proponent, Adele Lena Ferretti. The record is devoid of any evidence which shows that the proponent, in fact, exerted undue influence, and it is well settled that no inference of undue influence may be drawn from the fact that the proponent had the opportunity and motive to exert influence, absent evidence that influence was actually utilized (see, Matter of Walther, 6 N.Y.2d 49, 55; Matter of Seymour, 190 A.D.2d 739).
The appellant's remaining contentions are either unpreserved for appellate review or without merit. Copertino, J.P., Santucci, Friedmann and Goldstein, JJ., concur.