Opinion
2019–03887 File No. 4158/16
06-08-2022
In the MATTER OF Sonia Yudko ROBBINS, etc., deceased. David H. Schwartz, petitioner-respondent; v. Sari Escovitz, objectant-appellant; Shelley Ann Quilty–Lake, nonparty-respondent.
William V. DeCandido, P.C., Forest Hills, NY, for objectant-appellant. Ferguson Cohen LLP, White Plains, NY (Gerard M. Wrynn, Michael K. Stanton, Jr., John–Christopher Record, and Donna Furey of counsel), for petitioner-respondent.
William V. DeCandido, P.C., Forest Hills, NY, for objectant-appellant.
Ferguson Cohen LLP, White Plains, NY (Gerard M. Wrynn, Michael K. Stanton, Jr., John–Christopher Record, and Donna Furey of counsel), for petitioner-respondent.
BETSY BARROS, J.P., REINALDO E. RIVERA, JOSEPH J. MALTESE, WILLIAM G. FORD, JJ.
DECISION & ORDER
In a contested probate proceeding, the objectant appeals from an order and decree (one paper) of the Surrogate's Court, Queens County (Peter J. Kelly, S.), dated January 30, 2019. The order and decree, upon a decision of the same court dated October 3, 2018, in effect, granted the separate motions of the petitioner and Shelley Ann Quilty–Lake, as guardian ad litem, inter alia, for summary judgment dismissing the objections to probate of the decedent's last will and testament dated January 29, 2013, and admitted the will to probate. ORDERED that the order and decree is affirmed, with costs.
The decedent died on April 12, 2016, and is survived by a son, a daughter, and several grandchildren. The petitioner, who is the decedent's son and nominated executor of her will, filed a petition for probate dated September 27, 2016. The decedent's daughter (hereinafter the objectant) filed objections to probate on the grounds of lack of testamentary capacity, undue influence, and fraud. After discovery, the petitioner and the guardian ad litem, who represented the petitioner's four children (hereinafter together the movants), separately moved, inter alia, for summary judgment dismissing the objections.
In a decision dated October 3, 2018, the Surrogate's Court determined that the motions for summary judgment should be granted. In an order and decree dated January 30, 2019, the court, upon the decision, in effect, granted the motions, and admitted the will to probate. The objectant appeals. We affirm.
"The proponent of a will has the burden of proving that the propounded instrument was duly executed in conformance with the statutory requirements" ( Matter of Christie, 170 A.D.3d 718, 719, 95 N.Y.S.3d 286 ; see Matter of Mele, 113 A.D.3d 858, 859, 979 N.Y.S.2d 403 ; Matter of Rottkamp, 95 A.D.3d 1338, 1339, 945 N.Y.S.2d 394 ). Here, the movants demonstrated their prima facie entitlement to judgment as a matter of law by submitting the transcript of the deposition testimony and an affidavit of the attorney who drafted the will and witnessed its execution, along with the transcript of the deposition testimony of the additional attesting witness, which demonstrated that the statutory requirements for due execution were satisfied. Moreover, "[w]here the will is drafted by an attorney and the drafting attorney supervises the will's execution, there is a presumption of regularity that the will was properly executed in all respects" ( Matter of Sabatelli, 161 A.D.3d 872, 873–874, 76 N.Y.S.3d 207 ). In opposition, the objectant failed to raise a triable issue of fact (see Matter of Mele, 113 A.D.3d at 860, 979 N.Y.S.2d 403 ; Matter of Rottkamp, 95 A.D.3d at 1339, 945 N.Y.S.2d 394 ).
Contrary to the objectant's contention, the Surrogate's Court properly awarded the movants summary judgment dismissing the objection based on lack of testamentary capacity. The proponent of a will 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 (see Matter of Martinico, 177 A.D.3d 882, 113 N.Y.S.3d 722 ). Testamentary capacity need only be shown at the time the will was executed and physical weakness and senile dementia are not necessarily inconsistent with testamentary capacity (see id. ).
Here, the movants submitted evidence establishing, prima facie, that the decedent possessed testamentary capacity at the time the will was executed in the form of the self-proving affidavit of the attesting witnesses and the affidavits and deposition testimony of those witnesses (see Matter of Sabatelli, 161 A.D.3d at 874, 76 N.Y.S.3d 207 ). In opposition, the objectant failed to raise a triable issue of fact (see Matter of Romano, 137 A.D.3d 922, 27 N.Y.S.3d 86 ).
Further, the Surrogate's Court properly awarded the movants summary judgment dismissing the objections alleging fraud and undue influence. The movants established their prima facie entitlement to judgment as a matter of law dismissing these objections through evidence that the will was duly executed, that the decedent possessed testamentary capacity, and that the will was not the product of fraud or undue influence (see Matter of Martinico, 177 A.D.3d at 885, 113 N.Y.S.3d 722 ; Matter of Cianci, 165 A.D.3d 655, 657, 85 N.Y.S.3d 117 ). In opposition, the objectant failed to submit any evidence, other than conclusory allegations and speculation, that the petitioner or the attorney-drafter actually exerted undue influence over the decedent (see Matter of Cianci, 165 A.D.3d at 657–658, 85 N.Y.S.3d 117 ), or that any fraudulent statements were made to the decedent to induce her to make a will disposing of her property in a manner contrary to that which she otherwise would have effected (see Matter of Christie, 170 A.D.3d at 720, 95 N.Y.S.3d 286 ; Matter of Mele, 113 A.D.3d 858, 979 N.Y.S.2d 403 ; Matter of Rottkamp, 95 A.D.3d at 1340, 945 N.Y.S.2d 394 ).
The objectant's remaining contentions are without merit.
BARROS, J.P., RIVERA, MALTESE and FORD, JJ., concur.