If I sum the facts up, the decedent was on opioids for cancer, met and married his fourth wife about a 2 years before he died and was moved into her home where she lived with her ex-husband and then, a few weeks before he died, she contacted a lawyer 350 miles away to draft a will giving her everything, as well as a power of attorney....and the facts get even better.
"In this proceeding for probate of an instrument dated April 11, 2018,
the objectants move for summary judgment dismissing the petition upon
the grounds that decedent lacked testamentary capacity, the instrument
was not duly executed and that it was the product of fraud, forgery
and/or undue influence. The petitioner, decedent’s surviving spouse,
cross-moves for summary judgment dismissing the objections and granting
probate to the instrument. The decedent, Ulysses Ramirez, died on April
23, 2018 survived by Francesca, his fourth wife, and Mikhail and David,
decedent’s adult children from prior marriages. Ulysses had first met
Francesca the previous year, in May 2017, at which time he was being
treated for terminal metastic prostate cancer. Six months after they
met, in or about December 2017, decedent left the condominium where he
had lived long-term with Mikhail and moved into Francesca’s house, where
she either had been or still was residing with her ex-husband.
Thereafter, Ulysses and Francesca advanced their planned wedding date
from Spring 2018 to December 2017, apparently in consideration of
decedent’s deteriorating health.
The eight page type-written instrument at issue was drafted by Francesca’s family-attorney N. Lyman (“Lyman”) and bears the date of April 11, 2018, less than two weeks prior to decedent’s death. It nominates Francesca as executor and bequeaths to her all of decedent’s property including his condominium in Flushing where Mikhail lived, worth approximately $750,000.00. Lyman, whose office was located over 350 miles away in Albion, New York, was contacted by Francesca via text-messages on April 10, 2018, allegedly at decedent’s behest, requesting that he draft decedent’s will and a power of attorney naming her as agent. Although Lyman never met decedent nor ever had a conversation with him, he prepared the will and power of attorney according to the terms Francesca furnished.
The instrument erroneously states that decedent has only one son, Mikhail. Specifically, it states that:
I have one child by a prior relationship, MIKHAIL RAMIREZ. References to “my child” or “my children” mean my child above-named.
The omission of decedent’s other son David was either due to Francesca’s failure to inform Lyman or her own misunderstanding of decedent’s next-of-kin. Decedent’s medical records of the same date, April 10, 2018, show he provided a social history to his medical provider acknowledging he had two sons. Francesca asked Lyman to forward the draft of the will and power of attorney to an e-mail address that, unbeknownst to him, actually belonged to Francesca’s next-door neighbor Karen L. (“Karen”). Karen printed the draft will and the power of attorney together with written instructions provided by Lyman as to how they should be executed, and gave them to Francesca. There are no other notes pertaining to the drafting of the instrument other than the text messages and the e-mail.
The propounded will was not executed under the supervision of an attorney, but it bears decedent’s signature at the end thereof and an attestation clause together with the signatures of two witnesses, Francesca’s neighbor Karen and her son Alexander F. (“Alexander”). Francesca requested that Karen and Alexander be witnesses to the decedent’s will in a ceremony that was to take place at her house, purportedly at the decedent’s behest, and in accordance with Lyman’s written instructions concerning the need for two witnesses. Besides being neighbors, Karen owed Francesca a substantial debt of $35,000.00.
Although the instrument states that it was executed on April 11, 2018, the attached SCPA 1406 self-proving affidavit of Karen and Alexander indicates that it was actually executed three days later, on April 14, 2018. Karen testified that she took the instrument to her home to make copies and scan it when she noticed the erroneous date of “11″ pre-typed on the Affidavit of Subscribing Witnesses. She proceeded to change the date from “11″ to “14.”1 The dates appearing on the self-proving affidavit are clearly changed to read “April 14, 2018,” said changes being written over white correction fluid. Karen also testified that she did not notice the same erroneous date of “April 11″ appearing on pages 6 and 7 of the will and, therefore, did not change those. Both witnesses testified that the will was executed on April 14, 2018 in the presence of decedent and in the presence of each other in Francesca’s dining room while she was present elsewhere in her house.
The propounded instrument bears staple holes in the top-left corner which Karen attributes to her removal of the staple at the time she made the handwritten change of date on the affidavit and made copies and scanned the instrument to her personal computer.
The Affidavit of Subscribing Witnesses is notarized by an attorney, Levan N. (“Levan”), who testified that he was present when the will was executed on April 14, 2018. He repeatedly testified that his role was solely to act as a notary and that he neither supervised the execution of the will nor had knowledge of trusts and estates law.2
Although Karen and Alexander acknowledge that decedent was of sound memory and understanding and competent to make a will, decedent’s contemporaneous medical records reveal that his health was in a serious state of decline. On April 5, 2018, Francesca called decedent’s doctor to state that he was “mentally not there,” and “very debilitated, not eating, vomits intermittently” and has overall body pain which only goes away with medication that makes him “sleep the day away.” Decedent had been taking the opioid narcotic Oxycodone and medical records show that he was then given additional prescriptions for more powerful opioid narcotics, Dilaudid and Fentanyl. On April 10, 2018, four days prior to the purported execution of the instrument, he was admitted to the hospital and diagnosed and treated for “Failure to Thrive.” His Fentanyl dosage was increased and he was then prescribed Morphine. In hospital records, Francesca states “he knows he is dying.” The hospital record for April 11, 2018 provides that palliative medical services were consulted and Morphine Sulfate injections were started. On April 12, 2018, his Morphine prescription was increased. Decedent’s death certificate dated April 23, 2018 confirms that he had received hospice care during the time period when the instrument was executed, although Francesca denies this.
The medical records of decedent’s condition are corroborated by the testimony of his first wife, L. Klein (Klein”), also a registered nurse, that throughout March and April of 2018 decedent was continuously “drowsy,” “sleepy,” “groggy” and “not clear of thought” due to the medication and “couldn’t keep what [he] was saying straight” and was incompetent to make decisions regarding financial matters and assets. Based upon her observations, decedent could not read, understand or be aware of the contents of a will by the time it was executed. Further, E. McCann (“McCann”), a long-time acquaintance of decedent, testified that decedent had been six days without food when the will was executed.
Both Klein and decedent’s former brother-in-law, R. Filandro (“Filandro”), testified that decedent had a prior will, which thus far has neither been located nor produced, wherein decedent bequeathed all his property to his son Mikhail with the exception of a specific devise of some money to each of Klein’s two daughters. Both also testified that decedent disclosed to them that, upon marrying Francesca, they made an oral agreement whereby each of them would retain ownership of their own mon-marital property.
Summary judgment is a drastic remedy that can be granted only when it is clear that no genuine issues of fact exist (see Alvarez v. Prospect Hospital, 68 NY2d 320 [1986]; Andre v. Pomeroy, 35 NY2d 361 [1974]; Phillips v. Joseph Kantor & Co., 31 NY2d 307 [1972]). On a motion for summary judgment the proponent must establish his or her claim or defense sufficient to warrant the court in awarding judgment as a matter of law, tendering sufficient evidence in admissible form to demonstrate the absence of any material issue of fact (see Alvarez v. Prospect Hospital, 68 NY2d 320; Friends of Animals Inc. v. Assoc. Fur Mfrs., Inc., 46 NY2d 1065, 1067 [1979]). When the movant makes out a prima facie case, the burden shifts to the party opposing the motion to produce evidentiary proof, in admissible form, sufficient to establish the existence of material issues of fact (see Zuckerman v. City of New York, 49 NY2d 557 [1980]; Albouyeh v. County of Suffolk, 96 AD2d 543 [2d Dept 1983], aff’d 62 NY2d 681 [1984]). Bare conclusory allegations, expressions of hope or unsubstantiated assertions are insufficient (see Zuckerman v. City of New York, 49 NY2d at 562; Leonard v. Kinney Sys.,199 AD2d 470 [2d Dept 1993]).
Here, both parties assert that they have sustained their respective burdens on the motions for summary judgment and that each of their motions should be granted.
The proponent of the will has the burden of proving that the propounded instrument was duly executed in conformance with the statutory requirements (EPTL 3-2.1; see Matter of Moskowitz, 116 AD3d 958 [2d Dept 2014]). To establish due execution, petitioner must show that: 1) the testator subscribed or signed at the end of the instrument, and 2) the testator signed in the presence of at least two attesting witnesses or acknowledged his/her signature to these witnesses, and 3) the testator declared to each of the witnesses that the instrument is his/her will, and 4) there are at least two witnesses each of whom signed his or her name as a witness at the end of the will, at the request of the testator (see EPTL 3-2.1).
Petitioner argues that there is a presumption of due execution since the notary who was present at the execution ceremony, Levan, is also an attorney. A presumption of regularity arises when the execution of a will is supervised by an attorney (see e.g. Matter of Moskowitz, 116 AD3d at 959; Matter of Tuccio, 38 AD3d 791 [2d Dept 2007]; Matter of Weltz, 16 AD3d 428, 429 [2d Dept 2005]). Levan repeatedly testified, however, that he did not act as attorney to supervise the execution of the instrument, that he solely acted as a notary to acknowledge the signatures of the witnesses and that he lacked familiarity with trusts and estates law and practice. Therefore, the presence of Levan does not give rise to the presumption of due execution.
Petitioner argues that the presumption of due execution nevertheless arises since the instrument contains a full attestation clause and there is a contemporaneous “self-proving” affidavit of the two witnesses (see e.g. Matter of Rottkamp, 95 AD3d 1338 [2d Dept 2012]; Matter of Farrell, 84 AD3d 1374 [2d Dept 2011]; Matter of Greene, 89 AD3d 941, 943 [2d Dept 2011]). Objectants oppose, contending that no such presumption arises since the unorthodox facts and circumstances surrounding the will-signing do not corroborate due execution. Objectants cite the seminal Court of Appeals case, Matter of Collins, 60 NY2d 466 [1983], to support their argument that the circumstances must be corroborative of due execution for application of the presumption:
If the attestation clause is full and the signatures genuine and the circumstances corroborative of due execution, and no evidence disproving a compliance in any particular, the presumption may be lawfully indulged that all the provisions of the statute were complied with, although the witnesses are unable to recollect the execution of what took place at the time (emphasis added) (60 NY2d at 471).
In this case, there is a litany of irregular circumstances in the drafting and execution of the instrument. As stated above, attorney Lyman neither met nor spoke with decedent before drafting the instrument and he kept no notes other than text messages with Francesca and an e-mail to the witness, Karen. Lyman was Francesca’s family attorney and drafted the instrument according to terms she furnished via text messages, albeit she claims to have acted at decedent’s request. Attorney Levan, who was present at the execution ceremony, affirmatively denies that he supervised its execution but acted only as a notary.
With respect to the circumstances of the execution ceremony, Karen testified that she was called to be a witnesses by Francesca and she “was not really clear” at first whether decedent asked her to be a witness saying, “I don’t know if he wanted or she wanted.” She later gave discrepant but corrective testimony stating that it was “understood” that decedent wanted her to act as a witness based upon a conversation with him and her observation that he read the will and said “yes” and also “this [is] it.” There is also an anomaly in that Karen assented to Francesca’s request to be a witness while then owing her a debt in the sum of $35,000.00. Additionally, Karen brought the instrument to her own home where she removed the staple, changed the date on the affidavit and purportedly scanned a copy thereof to her own personal computer.
As
for the second witness Alexander, he testified that his mother Karen
asked him to help her execute a will “for Francesca.” While he states
that during the execution ceremony he overheard decedent saying that
“this is what he wanted,” he also lacked full recollection of all
aspects of the will execution. He did identify his name on the will and
the self-proving affidavit (see e.g. Matter of Malan, 56 AD3d 479 [2d
Dept 2008]).
With respect to the witnesses’ signatures, it appears from a comparison of the proffered will with the subject affidavit that, while both witnesses’ names all appear in print and script on the instrument, only a printed version of their names appears on the affidavit. The joint testimony explaining that “both” of the markings are their signatures, while possible, is too convenient and coincidental under these circumstances for this court to indulge the presumption that the instrument was duly executed. Based upon the evidence and the circumstances presented, the court finds that the petitioner is not entitled to a presumption of regularity for the execution of this instrument (see e.g. Matter of Christie, 170 AD3d 718 [2d Dept 2019]).
The petitioner argues, nevertheless, that the presence of the attestation clause and affidavit together with pertinent parts of the witnesses’ SCPA 1404 testimony are sufficient to make a prima facie showing of due execution, and prove that decedent signed the instrument in the presence of Karen and Alexander, who both acknowledge they also signed in his presence and at his request, and that decedent read the will and made declarations and exhibited conduct in their presence indicating that the instrument was his will. To the extent the court finds such evidence is sufficient to make a prima facie showing of due execution (see Matter of Collins, 60 NY2d at 471; Matter of Malan, 56 AD3d at 479), objectant also satisfies his burden of raising a triable issue of fact by relying upon other discrepant and conflicting testimony above showing that the instrument may not have been executed properly. In addition, although petitioner claims that substantial compliance with the publication requirement was satisfied by decedent making certain communications and expressions of intention to the witnesses that the document was his will (see e.g. Lane v. Lane, 95 NY 494 [1884]; Matter of Falk, 47 AD3d 21, 26 [1st Sept 2007]; Matter of Frank, 249 AD2d 893 [4th Dept 1998]; see also Matter of Roberts, 215 AD2d 666 [2d Dept 1995]), their testimony is vacillant at best and, due to the litany of irregularities attendant to this execution ceremony, issues of credibility are raised that are reserved for the trier of fact (see Matter of Jacinto, 172 AD2d 664 [2d Dept 1991]; Estate of Velasquez, 2013 NYLJ LEXIS 5493 [Sur Ct, Bronx County]; see also e.g. Matter of Falk, 47 AD3d at 28; see also generally Ferrante v. American Lung Assn., 90 NY2d 623, 631 [1997]).
Accordingly, the branch of petitioner’s cross-motion for summary judgment dismissing the objections on the issue of due execution is denied. Likewise, objectant’s motion for summary judgment dismissing the petition for probate on this ground is denied due to the failure to tender prima facie evidence that establishes their defense as a matter of law.
Petitioner has the burden of proving that the testator possessed testamentary capacity at the time the will was executed (see Matter of Kumstar, 66 NY2d 691 [1985]; Matter of Mooney, 74 AD3d 1073 [2d Dept 2010]; see also Matter of DiChiaro, 39 AD3d 751 [2d Dept 2007]). The court must look into the following factors: “(1) whether she [he] understood the nature and consequences of executing a will; (2) whether she [he] knew the nature and extent of the property she [he] was disposing of; and (3) whether she [he] knew those who would be considered the natural objects of [his] her bounty and [his] her relations with them” (Matter of Kumstar, 66 NY2d at 692). The capacity necessary to execute a valid will is minimal and lower than that required to execute most other legal documents or contracts (In Re Coddington, 281 AD 143 [3d Dept 1952], aff’d 307 NY 181 [1954]; Matter of Bellasalmo, 54 Misc 3d 1216[A] [Sur Ct, Queens County 2017]; Matter of DeMaio, 43 Misc 3d 1218[A] [Sur Ct, Queens County 2014]; Matter of Iwachiw, 40 Misc 3d 1211[A] [Sur Ct, Queens County 2013]).The relevant inquiry is whether the decedent was lucid and rational at the time the will was made (see Matter of Hedges, 100 AD2d 586 [2d Dept1984]).
In support of petitioner’s claim that decedent possessed testamentary capacity, petitioner submits a copy of the will offered for probate together with the annexed self-proving affidavit and the transcripts of the SCPA 1404 examinations of the two attesting witnesses, Karen and Alexander. Karen acknowledged that decedent was of sound memory and understanding and that he was competent to make a will. Karen’s conclusions were based upon her conversations with him and his “seemingly oriented behavior.” Alexander similarly testified that decedent was “alert, oriented as to time and place…[h]e knew what was going on,” and “clear, sound in mind when…this will was being made.” He further testified that decedent understood what he was reading and that he did not appear to suffer from any mental impairments.
Based upon the testimony and the documents submitted, petitioner has established, prima facie, entitlement to summary judgment as a matter of law dismissing the objection based upon decedent’s lack of capacity (see Matter of Kumstar, 66 NY2d at 692; Matter of Curtis, 130 AD3d 722 [2d Dept 2015]; Matter of Feinberg, 37 Misc 3d 1206 [A] [Sur Ct, Queens County 2012]).
In opposition, objectants submit a copy of the will and decedent’s contemporaneous medical records and argue that this evidence, together with the collective testimony of Karen, Alexander, Levan, Lyman, Klein and McCann, all of whom had communications and interactions with decedent during the relevant time period, raise triable issues of fact concerning his testamentary capacity.
As stated above, the instrument offered for probate incorrectly recites that decedent had only one child despite that fact that he had two sons, notwithstanding the fact that decedent clearly identified he had two children to his own medical provider a few days earlier on April 10, 2018.
In addition, the contemporaneous medical records detailed above from April 2018 which include Francesca’s own characterization of decedent’s desperate physical and mental condition, the diagnosis of his “failure to thrive,” documentation of the powerful opioid narcotics he had been given and the palliative care he was prescribed, all support objectant’s argument that decedent lacked testamentary capacity and may not have understood the nature and consequences of executing a will.
The medical records are further corroborated by the testimony of decedent’s first wife Klein and his friend McCann, which collectively confirm that decedent may have lacked testamentary capacity and that his mental state was severely affected by the powerful prescription narcotics received and by his failure to eat for six days prior to the execution ceremony. Although it is not the court’s function to assess the credibility of Klein’s or McCann’s testimony on this motion for summary judgment (see Ferrante v. American Lung Ass’n., 90 NY2d at 631; Daliendo v. Johnson, 147 AD2d 312, 317 [2d Dept 1989]; Schwartz v. Epstein, 155 AD2d 524, 525 [2d Dept 1989]), it is relevant that their testimony is clearly at odds with that of witnesses Karen and Alexander. Klein’s professional observations as a nurse should also be read in light of the fact that attorney Lyman neither spoke with nor met decedent and he had absolutely no knowledge of his medical condition when he drafted the will. Summary judgment should be denied where determinations of credibility are required (see Bank of NY Mellon v. Gordon, 171 AD3d 197 [2d Dept 2019]) and, where there is “conflicting evidence or the possibility of drawing conflicting inferences from the undisputed evidence, the issue of capacity is one for the jury (Matter of Kumstar, 66 NY2d at 692; see e.g. Matter of Marsh, 236 AD2d 404 [2d Dept 1997]).
The Court finds that objectant has submitted sufficient proof to raise a triable issue of fact concerning decedent’s lack of testamentary capacity. Accordingly, the branch of the petitioner’s cross motion for summary judgment dismissing the objection based upon the lack of testamentary capacity is denied. The branch of objectants’ motion for summary judgment dismissing the petition on this ground is also denied. Petitioner next seeks summary judgment dismissing the objection that the will was the product of undue influence exercised on decedent by Francesca.
Petitioner has made a prima facie showing of entitlement to summary judgment as a matter of law by submitting the SCPA 1404 testimony of the witnesses together with their self-proving affidavit which demonstrate that the decedent understood the terms of the will and that it was not the product of undue influence. The role of the court, therefore, is to determine whether objectant raises any triable issues of fact (see O’Brien v. Port Authority of NY & NJ, 29 NY3d 27, 37 [2017]; Sillman v. Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957]).
For the will to be denied probate based upon undue influence, “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 [or her] free will and desire, but which he [or she] 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” (Matter of Walther, 6 NY2d 49, 53 [1959], quoting Children’s Aid Socy. of NY v. Loveridge, 70 NY 387, 394 [1877]; see Matter of DiDomenico, 101 AD3d 998, 1000 [2d Dept 2012]; Matter of Favaloro, 94 AD3d 989, 992 [2d Dept 2012]).
Undue influence may be proved by circumstantial evidence, but such indirect proof must be of a substantial nature (see Matter of Walther, 6 NY2d at 56; Matter of Zirinsky, 43 AD3d 946, 948 [2d Dept 2007]). The circumstantial evidence may include the physical and mental condition of the testator; whether the propounded instrument deviated from the testator’s prior testamentary plan; whether the attorney who drafted the will was the testator’s attorney; whether the person who allegedly wielded the undue influence was in a position of trust and confidence; the opportunity and disposition of the person to wield undue influence; and whether the testator was isolated from the objects of his/her natural affection (see generally e.g., Children’s Aid Socy. of NY v. Loveridge, 70 NY 387 [1877]; Matter of Anna, 248 NY 421, 424 [1928], quoting Rollwagen v. Rollwagen, 63 NY 504, 519 [1876]; Matter of Katz, 63 AD3d 836 [2d Dept 2009]; Matter of Elmore, 42 AD2d 240 [3d Dept 1973]; Matter of Kruszelnicki, 23 AD2d 622 [4th Dept 1965]; see also Matter of Burke, 82 AD2d 260, 270-272 [2d Dept 1981]; Matter of Hirschorn, 21 Misc 3d 1113 [A] [Sur Ct, Westchester County 2008]; Matter of Zirinski, 10 Misc 3d 1052 [A] [Sur Ct, Nassau County 2005]).
Objectants argue that an inference of undue influence arises because Francesca was in a position of trust and confidence with decedent, and he had become dependent upon her for his daily needs. The fact that Francesca was in a confidential relationship with the decedent is counterbalanced in this case by the fact she was his wife, albeit for only several months, and the inference of undue influence does not automatically arise (see Matter of Zirinsky, 43 AD3d at 948; see also Matter of Anella, 88 AD3d 993, 995 [2d Dept 2011]; Matter of Scher, 74 AD3d 827, 828 [2d Dept 2010]).
The medical records and testimony of Klein and McCann, as described above, show that decedent was suffering from terminal cancer and had severely diminished mental and physical capacity, exacerbated by powerful opioid narcotics which had the capability of clouding his mind and making him vulnerable to undue influence, when the instrument was executed (see e.g. Estate of Elmore, 42 AD2d 240 [3d Dept 1973]).
There is also evidence that the propounded will deviated from decedent’s prior testamentary intent which, until nine days before his death, was apparently either specifically benefitting Mikhail or an intestate estate which would include his spouse and two children (EPTL 4-1.1). To this end, there is testimony by Klein, McCann and decedent’s former brother-in-law Filandro that they have knowledge of decedent having a prior will, albeit not produced and filed with the court, wherein decedent specifically bequeathed to his son Mikhail the co-operative apartment where they had lived together long-term. Further, there is testimony by both Klein and Filandro that decedent disclosed to them the terms of an oral agreement with Francesca which provided that the property brought into the marriage would remain separate. Francesca denies this. Nevertheless, even decedent’s intestacy benefitted his son Mikhail, who lived with his father almost the entirety of his life until several months prior to his father’s death. There is no evidence of any rift or dispute arising between them but, to the contrary, the testimony of Klein, McCann and Filandro all strongly support the position that they had a healthy, loving relationship. In their opinion, it is inconceivable that Mikhail would be suddenly disinherited by a change of plan.
The issue whether this change in testamentary plan is significant, however, “depends mainly upon its connection with associated facts” (Matter of Scher, 20 Misc 3d 1141 [A] [Sur Ct, Kings County], quoting Horn v. Pullman, 72 NY 269, 276-277 [1878]; see e.g. Estate of Teresa Driscoll, 1998 NYLJ LEXIS 2349 [Sur Ct, Westchester County]; cf. Matter of Malone, 46 AD3d 975, 978 [3rd Dept 2007]). The associated facts show that the instrument was executed shortly prior to decedent’s death while he was prescribed palliative care and powerful opioid narcotics, and the instrument disinherits both his natural children yet, erroneously, states that he has only one child. Notably, although Mikhail resided exclusively with his father virtually his entire life and, in his condominium, the instrument disowns and dispossesses him entirely of it. The aggravating fact which makes this change in testamentary plan important is the undisputed evidence that Francesca dictated the terms of the will to attorney Lyman who, inexplicably, failed to speak directly with decedent about his heirs and assets prior to drafting the instrument. Francesca’s intimate involvement with the drafting of the terms of the will is a hallmark of undue influence (see generally, Matter of Ellmore, 42 AD2d at 241-242; Matter of Robbins, 2018 NY Misc LEXIS 4675 [Sur Ct, Queens County]).
The circumstances of how Francesca came to use attorney Lyman are also significant. Francesca first attempted to retain Levan to draft decedent’s will and then she approached a second attorney, but neither of them would draft the will. Francesca then turned to her own family attorney Lyman who was located hundreds of miles away in Albion, New York, retaining him and dictating the terms of the instrument which, essentially, were that she was to receive decedent’s condominium and all his assets. Since Lyman was her own family attorney it can be inferred that he was acting” to some extent, ‘under [her] direction’” (Matter of Gerdjikian, 8 AD3d 277 [2d Dept 2004], quoting Matter of Lamerdin, 250 AD 133 [2d Dept 1937]). Lyman testified that Francesca told him what to put in the will and that he was just trying to do her “a favor.” Francesca inexplicably kept Lyman “in the dark” as to other pertinent details, as he testified that she never told him decedent had terminal prostate cancer or was prescribed hospice care; and while Lyman thought he was e-mailing decedent’s draft will to Francesca, she had deceitfully given him the e-mail address for Karen instead. Lyman was also unaware that Karen admittedly owed Francesca a $35,000.00 debt3 and that Francesca would be asking Karen to witness to the will. The totality of these circumstances together with Francesca’s utilization of her own family attorney by these means and in this manner, to prepare a will that solely benefitted herself and disinherited decedent’s children, evidences not only that Francesca had the opportunity to exercise undue influence but, also, that undue influence may have been actually utilized (see e.g. Matter of Gerdjikian, 8 AD3d at 278; Matter of Kryk, 18 Misc 3d 1105 [A] [Sur Ct, Monroe County]; cf. Matter of Fiumara, 47 NY2d 845, 846; Matter of Walther, 6 NY2d at 55; Matter of Favaloro, 94 AD3d 989, 993 [2d Dept 2012]; Matter of Bustanoby, 262 AD2d 407 [2d Dept 1999]).
Francesca disputes the claim that she dictated the terms of the will to Lyman in accordance with her own intentions, stating that she was just relaying decedent’s wishes to him. Although Lyman could not know if the will reflected decedent’s wishes because he never spoke to him, Karen made the salient observation in her testimony that it was Francesca who had the will “thrown together helter skelter when Ulysses realized he was crashing.” The incompatible evidence therefore only raises additional issues of credibility that are not suitable for summary judgment, and the conflicting inferences raised thereby are for a jury to decide.
The circumstantial evidence of undue influence further includes testimony by Klein, McCann and Filandro that Francesca took advantage of decedent and systematically isolated him from his family and life-long friends. Klein testified that decedent complained to her that Francesca kept up a “relentless assault” against his son, Mikhail. Francesca was very critical of Mikhail, and disliked him “to the core” calling him “worthless” and sending angry texts about him. She also “controlled access” to decedent, causing an alienation of affections, and decedent “didn’t have the energy to oppose her.” McCann testified that Francesca would verbally “trash” Mikhail calling him “lazy” and that he needed to get “a real job,” while boasting that she had decedent “wrapped around [her] finger” and she was “smart…[to] marry for money.” She further states that decedent was seduced and “boondoggled” while Francesca was proud to be in “complete control” of a “lonely man.” Filandro described Francesca as a “gatekeeper” who “badmouthed” Mikhail and would not let him visit his father, and that she also had Klein and Mikhail uninvited from seeing decedent at Thanksgiving dinner in 2017, a day they customarily spent together. The isolation of decedent from family and long-term friends while he was in a weakened state and susceptible to control is a further hallmark of undue influence (see generally e.g. Estate of Johnson, 6 AD3d 859 [3d Dept 2004]).
Viewing the evidence in a light most favorable to the objectants, the court finds that they have come forward with sufficient circumstantial evidence that raises triable issues of fact with respect to undue influence (see generally e.g. Rollwagen v. Rollwagen, 63 NY 504, 519 [1876]; Matter of Cavallo, 6 AD3d 434 [2d Dept 2004]; Matter of O’Brien, 182 AD2d 1135 [4th Dept 1992]; Matter of Pavelock, 16 Misc 3d 1124[A] [Sur Ct, Dutchess County 2007]; see also Matter of Katz, 63 AD3d 836, 838 [2d Dept 2009]; Matter of Gerdjikian, 8 AD3d 277 [2d Dept 2004]).
Accordingly, that branch of petitioners’ cross-motion for summary judgment dismissing the objection based upon undue influence is denied. In light of the existence of triable issues of fact, the objectants’ motion for summary judgment dismissing the petition for probate on this ground is denied.
Obectants next argue that decedent’s signature at the end of the instrument is “not his own,” that it is forged. The argument belies the testimony of both witnesses who unequivocally state that the decedent signed the instrument in their presence. Objectants rely upon the testimony of Filandro and McCann who both state that they are familiar with decedent’s signature and that it does not match the one appearing on the purported will. Notably, they both fail to provide particulars as to how decedent’s signature differs from that on the purported will. Moreover, objectants fail to submit any contemporaneous exemplars of decedent’s signature other than photocopy signatures appearing on a Health Care Proxy and “Consent to DNR Order” dated in April, 2018 which, to the court’s untrained eye, look essentially the same as the signature on the purported will. Where the objectants seek to prove that the instrument was forged, the proponent is entitled to particulars of the forgery and, where known, the name and address of the person or persons who forged the instrument (see Matter of Herman, 289 AD2d 239 [2d Dept 2001]; Matter of Taylor, 32 Misc 3d 1227[A] [Sur Ct, Bronx County 2011]; Estate of Harper, 2014 NYLJ LEXIS 4032 [Sur Ct, Bronx County 2014]). In the absence of any such particulars concerning decedent’s signature and the alleged forgery, objectants fail to raise a triable issue of fact with respect to same.
Accordingly, the branch of objectants’ motion for summary judgment dismissing the petition on the ground that it is forged is denied due to their failure to tender prima facie evidence that establishes this defense as a matter of law, and the branch of petitioner’s cross-motion to dismiss this objection is granted.
Petitioner next seeks summary judgment dismissing the objection to probate based upon fraud. For probate of the will to be denied based upon fraud, there must be evidence that petitioner knowingly made a false statement to the testator which caused him to dispose of his property in a manner differently than he would have absent that statement (see Matter of Cavallo, 6 AD3d 434 [2d Dept 2004]; Matter of Evanchuk, 145 AD2d 559, 560 [2d Dept 1988]).
Objectants fail to present any evidence of a false statement knowingly made by petitioner that caused decedent to dispose of his property any differently (see e.g. Matter of Zirinsky, 43 AD3d at 948).
Accordingly, the branch of the cross-motion for summary judgment dismissing the objection based upon fraud is granted. Likewise, inasmuch as objectants fail to make a prima facie showing that the will was procured by fraud, their motion for summary judgment dismissing the petition on this ground is denied.
Petitioner is directed to file a note of issue and certificate of readiness on or before September 25, 2020 together with a statement of issues (22 NYCRR §207.29, §207.30). Counsel for the respective parties and their clients are directed to appear for a pretrial conference on October 6, 2020, 9:30 AM. No adjournments shall be permitted without prior court approval."
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