Decedent died on February 19th, 2008 survived by 11 known distributees. The document dated May 17th, 2007, propounded as decedent's last will and testament, nominates the attorney/draftsman as executor ("proponent") and leaves her estate to 10 charities and 4 individuals in equal shares. On March 7th, 2008, proponent filed a petition for probate and preliminary letters testamentary. Citations were issued, and on June 12th, 2008, eight of the eleven known distributees of decedent ( "objectants") appeared by counsel and requested a SCPA 1404 hearing. That hearing ultimately took place on November 6th, 2008 and objections to the probate proceeding based upon due execution, testamentary capacity and undue influence were filed. The New York State Attorney General's Office has filed a motion for summary judgement, seeking to dismiss the objections. The summary judgement motion is currently before the Court.

Opinion

Objectants claim that the purported will of the decedent was not duly executed because the attorney/draftsman and proponent of the will requested the witnesses to so act rather than the testatrix herself. The proponent led the will execution ceremony. After the witnesses came into the room where the proponent and the testatrix were situate alone, the transcript reveals:

Q. And so the witnesses have come in, and describe what you did next?

A. Well, I asked her various questions. I said, "Teresa, have you read this Will?" She said, "Yes." And I said, Have I read the Will to you" and then you proclaim or words to the effect that this is your final Will and Testament, and she said "Yes." I said , "Do you want Lee and Gloria to sign the Will, be your witnesses? They will be signing as your witnesses and you would sign as their witnesses." And she said, "Yes," and then she signed it. I stood there and I directed the entire signing ceremony. ( Atty.Gen.'s Motion, Ex.C, at p. 50.)

Even though the testatrix did not address the witnesses directly, by responding in the affirmative to the attorney's queries regarding the request that the witnesses sign the will substantially and sufficiently complied with the requirements of EPTL section 3-2.1. See Matter of Frank, 249 AD2d 893 (1998), where there was uncontroverted proof that the attorney announced to the subscribing witnesses, in decedent's presence, that decedent was executing a will, was sufficient to satisfy the requirement of an express declaration (see EPTL 3-2.1 [a] [3]; Lane v. Lane, 95 NY 494, 500-501 (1884); Matter of Eckert, 93 Misc 2d 677, 679-680 (1978)). Furthermore, although the decedent did not expressly request that either witness sign her will, such a request may be inferred by [the decedent's] conduct and from the circumstances surrounding execution of the will. Matter of Buckten, 178 AD2d 981 (1991), citing Coffin v. Coffin, 23 NY 9 (1861); Matter of Mulenhoff, 278 A.D. 963 (1951).

Attorneys routinely lead their clients through the will execution formalities in order to ensure that the requirements of EPTL 3-2.1 are satisfied in order to qualify a document as last will and testament entitled to be admitted to probate. See Matter of Frank, supra. Such [*2]publication and instruction of a request is not required to be in any "ironclad ceremonial or ritualistic language." In re Douglas' Will, 193 Misc.623, 631-632 (1948).

Here, it is clear that the requirements of EPTL 3-2.1 were complied with.

Lack of Testamentary Capacity

The capacity requirement to execute a will is a minimal standard, it is lower than the requirement for other legal documents: "less capacity is required to enable one to make a will than to make other contracts." In re Coddington's Will, 281 A.D. 143 (1952).Capacity is evaluated by three factors: whether decedent understood the nature and consequences of executing a will, whether she knew the nature and extent of the property she was disposing of, and whether she knew those who would be considered the natural objects of her bounty and her relations with them. Matter of Friedman, 26 AD3d 723 (2006); Matter of Clapper, 279 AD2d 730 (2001); In re Estate of Slade, 106 AD2d 914 (1984); In re Kumstar, 66 NY2d 691 (1985).

Proponent bears the burden to prove testamentary capacity at trial. Matter of Friedman, supra; Matter of Clapper, supra; Matter of Slade, supra. For purposes of a summary judgement motion, once a proponent makes a prima facie case for probate, the burden switches to the objectant to show a triable issue of fact. Matter of Castiglione, 40 AD3d 1227 (2007); Matter of Nofal, 35 AD3d 1132 (2006).

Here, the proponent has offered a prima facie case of requisite testamentary capacity. The decedent herself sought out the services of proponent to have him draft her last will and testament. She met with him for that purpose with specific, detailed notes of how she wanted her estate devised. Deponent asked her about her family and she indicated to him that she had no children, had one sister, Marie Feller, who predeceased her on May 9th, 1998, and that her next of kin were cousins who were "scattered." ( Atty. Gen.'s Motion, Ex. C, at p. 12). Proponent and Lee McBride, a witness to the will, both testified that decedent was very engaged in the process of creating the will, pleasant, but very decisive and specific about her wishes. They further testified that she appeared to have no visual, auditory or cognitive difficulties to her understanding of the documents she signed and in fact, was well prepared with detailed notes for her meetings with proponent. In fact, when decedent reviewed proponent's draft of her will, she made changes to it adding accurate addresses and a middle name of a residuary beneficiary, which in the Court's view is further indicia of her capacity.

The only evidence of lack of capacity offered by objectants, generates from two visits decedent had with Bernadette Trox approximately ten months prior to her death, which coincides with the time period she executed her will. Trox described decedent as being usually talkative and friendly. However, Trox alleges that during these visits, decedent appeared to be preoccupied, not conversational or talkative, reserved and distracted, and not responsive to questions. These observations are tantamount to the same observations made of the decedent in the Matter of Nofal, supra, where the Appellate Division reversed the Surrogate Court's denial of summary judgement. In Nofal, the objectant's primary evidence was that the decedent was "sad or depressed, easily distracted of confused," which was held to be insufficient as a matter of law. Case law is clear that a diagnosis of dementia, Alzheimer's disease, old age, of confusion or memory loss alone does not prove lack of capacity. Matter of Castiglione, supra; Matter of [*3]Minasian, 149 AD2d 511 (1989); Matter of Hedges, 100 AD2d 586 (1984). In fact, this Court has previously held, under circumstances similar to Nofal, supra, and the case at hand, that isolated medical records will not trump a prima facie showing of capacity and therefore will not defeat a summary judgement motion. See Estate of Petix, 15 Misc 3d 1140A (2007); Estate of Kryk, 18 Misc 3d 1105A (2007).

There is a presumption of testamentary capacity when a will is drafted and the execution is supervised by an attorney, particularly when the evidence indicates that the testatrix executed the will only after careful review and discussion of its contents. Matter of Leach, 3 AD3d 763, 764 (2004); Matter of Nofal, supra. Here, objectants have failed to raise competent evidence creating a genuine issue of fact to overcome the presumption.

Undue Influence

An objectant seeking to prove undue influence must prove three elements: motive, opportunity and actual acts of undue influence. Matter of Malone, 46 AD3d 975 (2007); Matter of Fiumara, 47 NY2d 845, 846 (1979). Unlike testamentary capacity, a claim of undue influence is the objectant's burden to bear, which must be proven by a preponderance of the evidence. Matter of Panek, 237 AD2d 82, 84 (1997). The standard for proving undue influence is a high one for a will contestant to meet. It amounts to an interference beyond mere persuasion, encouragement or suggestion:

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.

Children's Aid Society of NY v. Loveridge, 70 NY 387, 394 (1877).

At a minimum, the objectant must make a showing of actual acts of undue influence, including time and place of the occurrence. Fiumara, supra ; Matter of Friedman, supra, at 725-726.

In the case at hand, objectants claim that proponent persuaded decedent to change her funeral home of choice (Harris), to another funeral home represented by deponent. In fact, the document propounded as decedent' last will and testament contains a direction that Harris be used for her final arrangements.There are no allegations concerning deponent's motive to influence decedent. In fact, the record is clear that deponent tried to persuade decedent to choose another executor. Moreover, it is uncontroverted that deponent testified that he made no recommendations regarding the decedent's testamentary plan or the charities named by decedent as legatees. It is also clear from the record that during all four meetings decedent had with deponent, she appeared at his offices alone, she tendered specific instruction regarding her testamentary plan, she sought no advice from deponent regarding her testamentary plan and deponent offered no advice regarding the same.

Though undue influence is typically proved by circumstantial evidence rather than direct evidence (In re Walther, 6 NY2d 49 (1959)), this does not preclude summary judgement where a [*4]material issue of fact has not been shown. In fact, it is proper for the Surrogate to issue summary judgement where objectant has not made out a prima facie case of undue influence. In re Minasian, 149 AD2d 511 (1989); In re Schaffer, 148 AD2d 540 (1989); Matter of Petix, supra. Where a reasonable conclusion other than undue influence is supported by the facts, it is improper to conclude that undue influence existed:

[Undue influence] may be proved by circumstantial evidence but

the circumstances must lead to it not only by a fair inference but

as a necessary conclusion. To avoid the will of a competent testator

on the ground of undue influence, the contestant must show

facts entirely inconsistent with the hypothesis of the execution of

the will by any means other than undue influence. In re Will of

Henderson, 253 A.D. 140, 145 (1937).

Here, objectant's proof of undue influence is markedly absent.

Conclusion

Summary relief in contested probate proceedings is proper where a prima facie case for probate has been mad and the objectant has failed to raise a triable issue of fact. See In re Finnochio, supra; Matter of Selig, 302 AD2d 721, 722 (2003). After viewing the facts in a light most favorable to the objectants, the Court concludes that the document purported to be the last will and testament of decedent dated May 17th, 2007 was executed in compliance with EPTL 3-2.1 while the testatrix was competent and free of any undue influence. Accordingly, the Attorney General's motion for summary judgement is granted in its entirety without costs, the objections are dismissed and a Decree of Probate will issue.

Dated: January 4th, 2010

Hon. Edmund A. Calvaruso

ENTER: