Opinion
16630 1282/10
01-12-2016
In re J. Bruce LLEWELLYN, etc., Deceased. Donald McHenry, et al., Petitioners–Respondents, v. Jaylaan Ahmad–Llewellyn, Objectant–Appellant.
Farrell Fritz, P.C., Uniondale (John R. Morken of counsel), for appellant. Proskauer Rose LLP, New York (Leonard S. Baum of counsel), for respondents.
Farrell Fritz, P.C., Uniondale (John R. Morken of counsel), for appellant.
Proskauer Rose LLP, New York (Leonard S. Baum of counsel), for respondents.
Opinion
Decree, Surrogate's Court, New York County (Nora S. Anderson, S.), entered February 23, 2015, admitting a document dated February 8, 2008 to probate as the last will and testament of decedent, based on a decision, same court and Surrogate, entered December 23, 2014, which had granted petitioners' motion for summary judgment dismissing the objectant's objections to probate, unanimously affirmed, with costs.
Petitioners sustained their burden of demonstrating due execution of the will, based on the signed affidavit and the deposition testimony of the three attesting witnesses (see Matter of Falk, 47 A.D.3d 21, 26, 845 N.Y.S.2d 287 1st Dept.2007, lv. denied 10 N.Y.3d 702, 854 N.Y.S.2d 103, 883 N.E.2d 1010 2008 ). Objectant failed to raise a triable issue of fact, as she presented no evidence that the witnesses' testimony was suspect, and she was not present when the will was signed by decedent (see Matter of Halpern, 76 A.D.3d 429, 432, 906 N.Y.S.2d 253 1st Dept.2010, affd. 16 N.Y.3d 777, 919 N.Y.S.2d 503, 944 N.E.2d 1142 2011 ).
Petitioners made a prima facie showing that decedent had testamentary capacity at the time of the will's execution, based on the testimony of decedent's treating physicians, who examined him the day before the execution and found him lucid, alert and able to understand the purpose of a will, his assets and the natural objects of his bounty (see Matter of Morris, 208 A.D.2d 733, 733, 617 N.Y.S.2d 513 2d Dept.1994 ). Decedent's medical records and the affidavit of objectant's medical expert do not raise a triable issue of fact.
Petitioners made a prima facie showing that decedent's decision to change his testamentary plan to leave the bulk of his estate to charity was the product of his own wishes. Numerous witnesses testified to decedent's strong interest in providing for the education of minority youth, and the will explained that there was no bequest to three of decedent's children because of provisions he had established for them during his lifetime. Although petitioners were in a position of trust and confidence with decedent, objectant failed to raise a triable issue of fact as to the exercise of undue influence over decedent by petitioners (see Matter of Camac, 300 A.D.2d 11, 12, 751 N.Y.S.2d 435 1st Dept.2002 ). The record shows that decedent actively sought the intervention of petitioners, his longtime friends.
Objectant also failed to present evidence sufficient to raise an issue of fact as to fraud (see Matter of Ryan, 34 A.D.3d 212, 215, 824 N.Y.S.2d 20 1st Dept.2006, lv. denied 8 N.Y.3d 804, 830 N.Y.S.2d 700, 862 N.E.2d 792 2007 ). The provisions of the will were consistent with statements decedent made to witnesses over the years.