Two motions are submitted for decision, each requesting summary judgement pursuant to CPLR 3212, dismissing objections to the probate of the Will of Ruth Zirinsky. In the first motion, Robert Zirinsky, as proponent of the Will, seeks to dismiss objections filed by Linda Zirinsky Gilbert and Jill Zirinsky Hirsch. In the second motion, Robert Zirinsky seeks to dismiss the objections filed by the guardian ad litem for the children of Linda Zirinsky Gilbert and Jill Zirinsky Hirsch. In a cross-motion to the first motion, Ms. Gilbert and Ms Hirsch move for an order permitting them to conduct additional discovery, and thereby denying the motion under CPLR 3212(f).

For the reasons that follow, the two motions seeking summary judgment pursuant to CPLR 3212 are granted. The cross motion is denied.

Ruth Zirinsky died a resident of Nassau County on May 29, 2003. She was survived by three distributees, her adult children Robert Zirinsky, Linda Zirinsky Gilbert, and Jill Zirinsky Hirsch. She was also survived by her second husband, a lawyer named George Specter. An instrument dated March 11, 1996, has been offered for probate by Robert (the instrument will be referred to as the "Will"). Ms. Gilbert and Ms. Hirsch have filed objections to the Will, alleging that it was the product of undue influence and fraud. A guardian ad litem was appointed for the minor children of Ms. Gilbert and Ms. Hirsch. He also filed the same objections with an additional allegation that "on March 11, 1996, the said testatrix did not know or understand the contents of the proposed Will." However, that particular objection has been withdrawn, by virtue of the letter of the guardian ad litem to the court dated September 27, 2005.

When Ruth Zirinsky died on May 29, 2003, she was married to George Spector, a lawyer. It was Ruth's second marriage. She was first married to Ralph Zirinsky, who died on May 7, 1980. Ruth's Will cannot be understood in isolation from Ralph's estate. Ralph Zirinsky, along with several members of his extended family, operated a real estate business that had been in existence for several generations. Ralph's Will was admitted to probate by this court on August 11, 1980. Under Mr. Zirinsky's Will, his residuary estate was divided into two shares (I and II). Share I was to be funded with assets that would qualify for the marital deduction then in effect. Three trusts were established by the Will's Article SECOND, equally funded by Share I. Each of these three Article SECOND trusts was to be administered separately and the net income of each was to be paid to Ruth or applied to her benefit. The trustees were also given the discretion to make principal payments to Ruth. Ralph's Will made Ruth the donee of a general testamentary [*2]power of appointment of the remainder of the three Article SECOND trusts. Ralph and Ruth's three children were the takers in default of the exercise of the power of appointment over their respective portions of the Share I, Article SECOND trusts, albeit via continuing trusts for their benefit. Share II of Ralph's residuary estate was also divided into three equal parts under Article THIRD, to be held as separate sprinkling trusts for the benefit of Ralph's three children (Robert, Linda, and Jill) and Ruth, who possessed no power of appointment over the remainder of these trusts. The three Article THIRD trusts continued for the lives of Ruth and her three children, with the remainder going to the issue of the three children. The initial co-trustees of these six testamentary trusts were Robert, Ruth, and Richard Zirinsky, the decedent's brother and Robert's uncle.

Ruth's Will that has been offered for probate purports to exercise her power of appointment, directing that the remainder of the three Article SECOND trusts be disposed of as part of her residuary estate. Article FIFTH of Ruth's Will bequeaths the residuary as follows: two-thirds (2/3) in trust for Robert; one-sixth (1/6) for Linda; and one-sixth (1/6) for Jill. The alleged intent of this unequal distribution, when considered with the equal distribution under Article THIRD of Ralph's Will, is to apportion Ralph and Ruth's real estate interests so that Robert obtains a 50% share, Linda a 25%, and Jill a 25%. It is fair to say that Ruth's exercise of her power of appointment is the source of the objections to Ruth's Will.

As noted, for several generations the business of the Zirinsky family has been real estate. When Ralph Zirinsky died in 1980, the gross fair market value of his real estate interests were said to amount to $1,044,036.00 while the net taxable estate was $463,302.00. At the time of Ralph's death, Ruth was 48 years old. Robert had recently graduated from law school and had entered the family business. Over the next twenty-five years the value of the family's real estate interests grew exponentially. There is a dispute, however, as to the stewardship of the six testamentary trusts under Ralph's Will. Robert is a co-trustee for those trusts, in fact the surviving co-trustee after the death of his mother and his uncle, Richard Zirinsky. His sisters have filed objections to his accountings of those trusts. The outcome of those litigations will not change the fact that the real estate interests have experienced a substantial increase over the years.

Summary judgment may be granted only where it is clear that no triable issue of material fact exists (see, e.g. Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; Phillips v Joseph Kantor & Co., 31 NY2d 307 [1972]. The traditional reluctance to grant summary judgment in probate proceedings has long since passed, and it is now recognized that "[a]lthough summary judgment must be exercised cautiously, it is proper in a contested probate proceeding where the proponent submits a prima facie case for probate and the objectant fails to raise any genuine factual issues" (Matter of Minervini, 297 AD2d 423, 424 [2002]; Matter of Coniglio, 242 AD2d 901 [1997]). Indeed, it is also clear that summary judgment may be granted even where such proceedings involve issues of a fact-sensitive nature, such as fraud and undue influence (see, e.g., Matter of Neuman, 14 AD3d 567 [2005]; Matter of Goldberg, 180 AD2d 528 [1992]).

Because summary judgment is in derogation of the parties' right to a jury trial, the rubric applied to the court's analysis has always been "issue finding" rather than "issue determination" (Sillman v Twentieth Century Fox Film Corp., 3 NY2d 395 [1957]). Therefore, it is incumbent on the movant to make a prima facie showing that he or she is entitled to summary judgment as a [*3]matter of law (CPLR 3213[b]; Zuckerman v City of New York, 49 NY2d 557 [1980]; Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065 [1979]). The papers submitted in support of and in opposition to the motion are scrutinized in a light most favorable to the party opposing the motion (Robinson v Strong Memorial Hosp., 98 AD2d 976 [1983]). If there is any doubt as to the existence of a triable issue of fact, then the motion must be denied.

To defeat a motion for summary judgment, the opponent must assemble and lay bare affirmative proof to demonstrate the existence of a genuine triable issue of fact (Stainless, Inc. v Employers Fire Ins. Co., 69 AD2d 27 [1979], affd 49 NY2d 924 [1980]). Allegations must be specific and detailed, substantiated by evidence in the record; mere conclusory assertions will not suffice (Matter of Newman, 14AD 3d 567 [2005]). Moreover, the court is required to search the record when it is engaged in the process of issue finding (Fullan v 142 E. 27th St. Assocs., 1 NY3d 211 [2004]; Insurance A.G. v Moor-Jankowski, 77 NY2d 235 [1991]).

The instrument offered for probate was executed on March 11, 1996. Ruth Zirinsky died on May 29, 2003. Except for her final days, Ruth maintained an active, independent life, living with her second husband, a lawyer, visiting and socializing with her friends, children, and grandchildren. As noted above, objections to probate were filed by the decedent's daughters, Linda Zirinsky Gilbert and Jill Zirinsky Hirsch, and by the guardian ad litem for their children, who are adversely affected by the exercise of the testamentary of appointment. They allege that the Will was the product of fraud and/or undue influence. The court notes that the objectants would have the affirmative burden of proof at trial as to fraud and undue influence (see Matter of Bustanoby, 262 AD2d 407 [1999]). It will be useful to keep these trial burdens in mind in the following analysis. Regarding the trial of this matter, it will be relevant to a portion of this decision to note that this court wrote in its decision of May 18, 2005:

[t]he petition to probate the instrument said to be the last Will of Ruth Zirinsky was filed with the court on July 31, 2003. The parties have had adequate time to prepare their cases and are advised that the interest of all concerned are best served not by tangential litigation but by an expeditious trial of the probate issues. Therefore, this matter is hereby scheduled for trial commencing on November 28, 2005. The final pre-trial conference is scheduled for Wednesday, November 2, 2005 at 9:30 a.m. A compliance conference is also scheduled for Wednesday, August 11, 2005, [should read August 10] at 9:30 a.m. Any motions for summary judgment will be scheduled at this conference. (Decision No. 481)

As is evident in the record, and bears repeating here, the Zirinsky family has been involved in the real estate business for several generations. When Robert graduated from law school, he entered the business with his father. When his father died in 1980, Robert, along with his mother, Ruth, and uncle, Richard, became co-trustees of the six testamentary trusts that controlled the family real estate interests. There is no evidence that Robert's sisters Jill and Linda ever took an active role in the family business. Although it is clear in the record that Robert took the lead in managing the trusts and the underlying real estate interests (and his sisters would [*4]certainly be estopped from asserting the contrary, by virtue of their objections to the trust accountings) the evidence is equally clear that Robert and his mother enjoyed a mother-child relationship with open communications between them on all matters. In fact, Ruth asked her son for a recommendation when she decided to update her estate planning (her previous Will was approximately fifteen years old). Loeb & Loeb had represented various members of the extended family real estate interests. On behalf of Ruth, Robert asked Michael Beck, a Loeb & Loeb partner, for a recommendation on a trusts and estates specialist. Jerome Levine, another partner at Loeb & Loeb, was recommended. Mr. Levine is a fellow of the American College of Trusts and Estates Counsel. Robert and Ruth were both familiar with Mr. Levine from social gatherings with Robert's uncle Richard.

Ruth's discussions with Robert on this topic began in August 1995. Ruth was diagnosed with non-Hodgkins lymphoma in April 1995 and began treatment for this condition in June. Although unnecessary to this decision, one can reasonablely conclude that estate planning was on Ruth's mind during the summer of 1995. There is no evidence whatsoever that Ruth's desire to update her estate plan was the product of an intent other than her own. Ruth first met with Mr. Levine on December 1, 1995, and commenced a lengthy process of meetings and drafting that culminated in the Will now before the court and the execution ceremony on March 11, 1996.

When Ruth first met with Jerome Levine on December 1, 1995, Robert and Michael Beck were initially at the meeting. When discussions of a general nature relating to the family business turned to Ruth's testamentary intentions, she informed Mr. Levine that she intended to exercise her power of appointment in such a way as to give Robert a 50% stake in the real estate holdings, as held through the trusts. At this point, Mr. Levine testified that he asked Robert and Mr. Beck to leave the meeting, so that he could continue to discuss the matter with Ruth alone. Mr. Levine testified that from December 1, 1995, until the Will was executed on March 11, 1996, he met with Ruth Zirinsky (either in person or by telephone) a total of eighteen times to discuss the several drafts of the Will, along with other related testamentary and estate planning topics. The objectants to the Will raise many questions about this process, but the court finds them to be insignificant. For example, billing records from Loeb & Loeb may not agree with some of Mr. Levine's testimony, or that Ruth's calendar may not contain entries of meetings. The reality is quite clear and uncontroverted that Ruth was a knowledgeable and active participant in her own estate planning. She was at all times lucid, competent, and knowledgeable, befitting her status as co-trustee of the various trusts and her position as an upper-middle class person who enjoyed traveling with her second husband and visiting with her children and grandchildren. She even drew pie charts to instruct her counsel how she expected the 2/3-1/6-1/6 exercise of her power of appointment would result in the desired 1/2-1/4-1/4 interest in the real estate. The objectants do not controvert the fact that there was a rational basis to Ruth's plan. After all, neither sister ever claimed to have had any involvement in managing the family real estate. In fact, it cannot be denied that from at least 1980 onward, Robert Zirinsky was the prime manager of the interests held by the trusts. Ruth, of course, was a co-trustee of the testamentary trusts that controlled the real estate and the record indicates that she took a passing interest in the business affairs of the properties. Of course, there are some serious allegations about the management of these interests by Robert by virtue of his role as controlling co-trustee of the various testamentary trusts. Nevertheless, these issues are being litigated in the contested accountings and are not [*5]relevant, by virtue of the time frames involved, to this probate contest.

Mr. Levine testified that, despite the diagnosis of lymphoma and the chemotherapy for its treatment, he found Ruth to be at all times to be an intelligent, competent, willful, and capable person. This opinion is amply supported by the various affidavits submitted in support of the motions, ranging from her treating physicians to her live-in housekeeper of many years to her sister. Indeed, one of the objectants even eulogized her mother in a complementary fashion that hardly describes a person subject to undue influence or even fraud. The court notes that at all times relevant to this matter Ruth maintained her own residence and was fully available to her children and their children. Her housekeeper of many years testified that the decedent was an independent and opinionated person with all her children receiving, in due turn, their fair share of normal maternal criticism.

There came a time during the drafting process when Ruth wanted to explain her exercise of the power of appointment to her children. Mr. Levine testified that he advised her to do it while she was alive, either orally or in writing. Mrs. Zirinsky declined. Nevertheless, Ruth did agree to draft an explanatory letter that would be delivered to her children after her death. She requested Mr. Levine's help in framing her thoughts. After much thought and several drafts, Ruth settled on a letter that she executed on March 11, 1996, along with her Will. The letter provides:

At the time that your father died, he did not address succession of the family real estate business. Robert had only recently begun to work with your father when he became ill. Soon thereafter he signed a Will which left all of the business interests in trust for me. In that Will, upon my death, the real estate business wold be divided into equal shares for the benefit of the three of you and your families.

After your father's death, Robert has assumed the entire burden of managing the business. I have watched with pride as the value of the business has grown steadily at a time when many New York real estate families have suffered. We have all benefitted from Robert's efforts.

Under your father's Will, I control the disposition of one-half of Ralph Zirinsky Real Estate Company. The other one-half will continue to be held by three equal trust for each of you. I believe that it is both equitable and in the long term interest of the business that Robert, as the only active partner, own a larger share than Linda and Jill.

I have concluded that Robert and his family own 50% interest in Ralph Zirinsky Real Estate Company. In order to accomplish that result, I have provided in my Will that Robert and his family shall receive 2/3 of my residuary estate. In this way, he will receive 2/3 of 50% of the business under my will and 1/3 of 50% of the business under your father's will. The resulting ownership of Ralph Zirinsky Real Estate Company will be 50% to Robert's family and 25% to each of Linda's family and Jill's family.

I hope you will all understand the difficulty I faced in making this decision. I have done what I believe is fair and trust you will appreciate that I love you equally.

Mr. Levine testified (deposition transcript pp 131-135) about Ruth Zirinsky's thought processes on this letter and her Will:

Q.What are the differences between the two [drafts of the letter], that is, between Exhibit 15 and the letter that was signed?

A.One change was that Ruth advised me and asked me to insert into the letter the fact that after Ralph's death, she seriously considered selling all of the real estate, it was not worth a great deal at that time, and she was recognizing she could not manage it and run it herself, and that only if Robert would remain in the real estate business, and run it, would she be able to continue with it, and she asked me to reflect in the letter the fact that if Robert had not been around and agreed to devote his life to the real estate business, that all those real estate assets would have been sold at that time.

Ruth Zirinsky's single intent was to have Robert obtain the greater share of the family real estate interests. The evidence indicates that it went no further and that Ruth otherwise tried to be as equal as possible in her treatment of her children and grandchildren. When Mr. Levine at Loeb & Loeb suggested an in terrorem clause for her Will, Mrs. Zirinsky declined. When Mr. Levine explained to Ruth the adverse tax consequences of her Will to Robert, she declined to change the result. Mr. Levine testified at his deposition (at pp. 134-137 of his transcript) as follows:

Q.What was said on the subject of tax allocation between the two of you?

A.I explained to her that there was a that when we when she described her desire to have the family business pass 50 percent, 25 percent and 25 percent, there would be a material distinction between whether that 50 percent, 25 percent, 25 percent was gross of estate taxes or net of estate taxes, since her power of appointment need to be exercised in different proportions in order to get to 50 percent, 25 percent and 25 percent. I would have given her a numerical example to explain what I meant, but the basic point, which was important for her to understand and make a decision on, was whether the estate taxes were going to be borne in proportion to the residuary estate, which was two thirds, one sixth and one sixth, or 50 percent, 25 percent and 25 percent, and what I explained to her was that if the allocation of estate taxes turned out to be consistent with the residuary estate, that while Robert would end up with 50 percent of Ralph Zirinsky Realty, and or a trust for the benefit of, rather, and a trust for each of the other two children would end up with 25 percent of Ralph [*7]Zirinsky Realty, the obligation to pay the estate taxes would end up being borne consistent with the residue, and two thirds of it, as she ultimately directed me to do, would be paid from the trust for Robert and his family, and one sixth each for the benefit of Jill and Linda.

So she understood that although the real estate interests were going to end up at 50 percent, 25 percent and 25 percent, the tax obligation, in effect, would have meant that on a net of estate tax-basis, Robert's trust share would have been less than 50 percent and each of the other trust shares would end up being more than 25 percent.

Q.And the reason for that is because Robert's trust share bears a larger proportion of tax; right?

A.Yes, but she - wanted to be clear with her, make sure she understood I could do the tax allocation either way, and I wanted to know from her whether she thought it was fair that the tax be born 50, 25, 25 or two-thirds, one-sixth, one sixth. She instructed me to do it two-thirds, one-sixth and one-sixth.

Q.Exhibit 2-A, that single sheet of notes that did not have a date, is that reflective of one or more conversations with her as well?

A.Yes.

The first objection to the Will was that it was the product of undue influence exerted by Robert over his mother. The objectants have the burden of proof on this issue (Matter of Bustanoby, 262 AD2d 407 [1999]; Matter of Gross, 242 AD2d 333 [1997], lv denied, 90 NY2d 812 [1997]). To establish the undue influence claim, objectants must show by a preponderance of the credible evidence: (1) the existence and exercise of undue influence; (2) the effective operation of undue influence as to subvert the mind of the testatrix at the time of the execution of the Will; and (3) the execution of a Will that, but for undue influence, would not have occurred. The three elements of undue influence have also been described as motive, opportunity, and the actual exercise of undue influence (Matter of Walther, 6 NY2d 49 [1959]). In order for objectants to carry their burden with respect to this issue, they must demonstrate not only the existence of opportunity and motive but the actual exercise of undue influence (Matter of Fiumara, 47 NY2d 845 [1997]; Matter of Walther, 6 NY2d 49 [1959]; Matter of Holly, 16 AD2d 611 [1962], affd, 13 NY2d 746 [1963], Matter of Foranoce, NYLJ, August 7, 2000, at 25). As to what actions constitute undue influence, this classic formulation still resonates in the case law:

"[i]t must be shown that the influence exercised amounted to a moral coercion which restrained independent action and destroyed free agency...[i]t must not be the promptings of affection; the desire of gratifying the wishes of another; the ties [*8]of attachment arising from consanguinity, or the memory of kind acts and friendly offices, but a coercion produced by importunity, or by a silent, resistless power which the strong will often exercises over the weak and infirm, and which could not be resisted, so that the motive was tantamount to force or fear."

The court recognizes that undue influence is rarely proven by direct evidence and is usually proven by circumstantial evidence (Matter of Walther, 6 NY2d 49 [1959]; Rollwagen v Rollwagen, 63 NY 504 [1875]; Matter of Burke, 82 AD2d 260 [1981]). Among the factors that have been held to indicate the exercise of undue influence are:

1. the physical and mental condition of the testatrix (Children's Aid Society v Loveridge, 70 NY 387 [1877]; Matter of Woodward, 167 NY 28 [1901]; Matter of Callahan, 155 AD2d 454 [1989]; Matter of Gnirrep, 2 AD2d 404 [1956]);

2. whether the attorney who drafted the will was the testatrix's attorney (Matter of Elmore, 42 AD2d 240 [1973]);

3. whether the propounded instrument deviates from the testator's prior testamentary pattern (Matter of Kruszelnicki, 23 AD2d 622 [1965];

4. whether the person who allegedly wielded undue influence was in a position of trust (Matter of Elmore, 42 AD2d 240 [1973]); and

5. whether testator was isolated from the objects of his natural affection (Matter of Burke, 82 AD2d 260 [1981]; Matter of Kaufman, 20 AD2d 464 [1964], affd 15 NY2d 825 [1965]).

With all this in mind, it is also important to remember that in order to defeat a motion for summary judgment, the objectant must demonstrate that there is a genuine triable issue by allegations which are specific and detailed, substantiated by evidence in the record and that mere conclusory assertions will not suffice (Matter of O'Hara, 85 AD2d 669, 671 [1981]).

The objectants argue that the confidential relationship that allegedly existed between Robert and his mother, together with Robert's involvement in Ruth's financial affairs is sufficient to deny the motions for summary judgment. The court disagrees. The facts presented on the motion reveal nothing more than a typical parent-child relationship. It is clear that Ruth Zirinsky lived an independent life and that Robert's involvement with her affairs was no more than incidental, given their particular circumstances and the facts attendant to a typical mother-son relationship. This fact should be kept in mind, because the objectants' efforts to portray the relationship as "confidential," as that term is defined in this context, is belied by the family relationship, not to mention the facts themselves. The law recognizes that a close family relationship "counterbalances any contrary legal presumption; and explanation by the beneficiary is not required" (NY PJI 7:56, citing Matter Of Walther, 6 NY2d 49 [1959], Matter of Moskowitz, 279 AD 660 [1951]). A confidential relationship may be inferred if one party has disparate power over the other (Ten Eyck v Whitbeck, 156 NY 341 [1898]), such as the power of an attorney, guardian, clergymen, doctor or nursing home director. Generally, no presumption of [*9]undue influence can be drawn solely from the relationship between the decedent and her child because a sense of family duty is inexplicably intertwined in this relationship (Matter of Walther, 6 NY2d 49 [1959]).

The objectants point to several instances of Robert's active involvement in his mother's financial affairs, including her generosity to him regarding gifts, and his assistance with her bills and income. Moreover, there is some indication that Ruth may have asked Robert for some input during the Will-drafting process. However, none of these facts, assumed to be true for purposes of this motion, rise to the level of showing Robert actually exercised undue influence over his mother or that he defrauded her. Therefore, while it is clear that a close family relationship operates to negate an inference of undue influence, even if the court applied such an inference, the record is devoid of any fact whatsoever that Robert's conduct "amounted to a moral coercion, which restrained independent action and destroyed free agency"( Children's Aid Society v Loveridge, 70 NY 387, 394-395 [1877]).

The physical and mental condition of the testatrix is a leading factor when considering undue influence (Children's Aid Society v Loveridge, 70 NY 387 [1877]; Matter of Woodward, 167 NY 28 [1901]; Matter of Callahan, 155 AD2d 454 [1989]). If there is one fact that is unassailable in this motion it is that Ruth Zirinsky faced her medical challenges bravely and in such a way that did not diminish her mental or physical capacity. The objectants ask the court to take judicial notice of the debilitating effects of chemotherapy. Not only is such notice unwarranted on the law, it is clearly belied by the evidence. Ruth Zirinsky may have been diagnosed with lymphoma a few months before her initial meeting with Jerome Levine, but the facts submitted on this motion clearly illustrate her knowledgeable, competent, and active participation in her estate planning. Medical records, affidavits from treating physicians, deposition testimony (even from objectants) all point to the decedent being fully capable and in charge of her affairs during the relevant time. There is no proof that objectants were in any manner shut out of decedent's life by petitioner (see, Matter of Delyanis, 252 AD2d 585). Indeed, one thing that the record impresses upon the court was the independence of the decedent during the relevant times, and the continuing relationship she enjoyed with all her children and grandchildren. Thus, on this point, objectants have failed to demonstrate the actual exercise of undue influence (Matter of Foranoce, NYLJ, August 7, 2000, at 25, col 6; citing, Matter of Fiumara, 47 NY2d 845; Matter of Walther, 6 NY2d 49 [1959]).

Another factor the courts look to in these analyses is the identity of the attorney-drafter of the Will. It has been held that where a Will has been prepared by an attorney associated with a beneficiary, that relationship must be explained and it is a question of fact whether undue influence existed if that relationship is not adequately explained (Matter of Elmore, 42 AD2d 240 [1973]). The facts relevant to this analysis are clear. Jerome Levine had no professional or personal relationship with Robert Zirinsky. Mr. Levine was friendly with members of the extended Zirinsky family. While Michael Beck of Loeb & Loeb did recommend Mr. Levine to Robert, said inquiry was clearly prompted by Ruth and that Ruth's subsequent relationship with Mr. Levine was fully independent of any actual showing of Robert's influence.

The objectants point to some evidence that Robert was privy to one of the drafts of the Will, but even if he was consulted by his mother, such an act is a far cry from the moral coercion contemplated by the law of undue influence and merely demonstrates what is incontrovertible, [*10]that Robert and Ruth were close and active participants in the Zirinsky family business and that his mother trusted Robert's business acumen and advice. Indeed, the facts clearly demonstrate that Ruth's Will was the independent product of her own plans and desires. For example, the Will did not contain as in terrorem clause, despite its suggestion by Mr. Levine and its obvious advantages to Robert (as Ruth expressed, it was her desire that her children preserve an amicable relationship even if she intended to have Robert maintain his lead position in the business). The Will names one of the daughters, Jill, as successor executor and trustee. The Will also required the payment of the estate taxes from the residuary, resulting in two-thirds of the estate taxes being paid from Robert's trust, an outcome that could have easily been avoided in Robert's favor, as described above. The deposition testimony of Ruth's sister, Sara Wind, readily demonstrates the independence and control Ruth exercised over her affairs. Ruth's long-term, live-in maid testified at deposition that Ruth frequently complained to her about Robert and the infrequency of his calls to her and visits with her grandchildren to her house (M. Widman transcript, pages 30-35).

The mere association of Jerome Levine with Michael Beck and the latter's work on behalf of Zirinsky family interests is, on these facts, insufficient to show a triable issue of fact or undue influence (cf. Matter of Seelig, 13 AD3d 776 [2004] and Matter of Gerdjikian, 8 AD3d 277 [2004]). Nor is it dispositive that Ruth might have asked Robert's advice during the lengthy drafting process. Any such advice fully comports with their relationship. In this regard, Matter of Seelig (13 AD3d 776 [2004]) is clearly on point and persuasive. In that case, the decedent named a hospital as the residuary beneficiary. Objections of fraud and undue influence were dismissed by the Second Department under facts even stronger for the objectant than are present here. Prior to the will's execution in Matter of Seelig, 13 AD3d 776 [2004], the proponent/hospital director drafted a charitable remainder trust for decedent's signature. The decedent refused to sign the CRUT because he expressed a desire to have more control over his assets. The court determined that the decedent's rejection of the CRUT demonstrated that the proponent/hospital director did not have the ability to unduly influence the decedent. Summary judgment was granted by the Surrogate and affirmed by the Second Department despite the fact that there were inconsistencies in the testimony regarding whether the proponent/hospital director or the decedent chose the drafting attorney to represent the decedent. Moreover, the Will was signed just two days after the drafting attorney had his first meeting with his client, and the proponent/hospital director was present at the execution. If the facts in Seelig (13 AD3d 776 [2004]) merited summary judgment, then the instant facts are even more worthy of summary judgment on the issue of the relationship between Robert Zirinsky and Loeb & Loeb.

The third factor in the analysis is whether the propounded instrument deviates from the testatrix's prior testamentary pattern (Matter of Kruszelnicki, 23 AD2d 622 [1965]). Ruth's prior Will was executed in 1980 and did treat the three children equally. However, the propounded Will and the decedent's other estate plans clearly evince an intent to treat the children and grandchildren as equally as possible all the while giving Robert a controlling stake in the business that he managed and developed for many years. The sum total of the circumstances here do not allow the mere fact of disparate treatment in this Will, considered in isolation, to give rise to an issue of fact.

The final two factors in this part of the analysis may be considered together, i.e., whether [*11]the person who allegedly exercised undue influence was in a position of trust (Matter of Elmore, 42 AD2d 240 [1973]) or whether the testatrix was isolated from the objects of her natural affection (Matter of Burke, 82 AD2d 260 [1981]; Matter of Kaufman, 20 AD2d 464 [1964], affd 15 NY2d 825 [1965]). These factors dovetail with the evidentiary impact that attaches to a finding of a confidential relationship. The law is clear that when the person alleged to have exercised undue influence is in a confidential relationship with the testatrix, then an inference arises that the influence was undue (Matter of Bartel, 214 AD2d 476 [1995]). The finding of a confidential relationship is considered the kind of fact-based issue that usually precludes summary judgment (Matter of Bach, 133 AD2d 455 [1987]).

If a confidential relationship existed between the decedent and the proponent, then an inference of undue influence arises and the proponent therefore has the burden of going forward with evidence supporting an alternate explanation for the decedent's largesse (Matter of Braiger, NYLJ, April 28, 2005 at 28; 3 Warren's Heaton on Surrogate's Court Practice § 42.07 [1] [6th ed.]). It is generally considered a question of fact whether the alternate explanation offered by the proponent is adequate (Matter of Elmore, 42 AD2d 240 [1973]). However, the courts have not been reluctant to grant summary judgment in this area where the result is warranted by the facts (Matter of Braiger, NYLJ, April 28, 2005 at 28; Matter of Jarsky, NYLJ, Aug. 25, 2003 at 26; Matter of Waltz, NYLJ, March 27, 2003 at 22, affd 16 AD3d 428; Matter of Krugman, NYLJ, Aug. 19, 2002 at 30).

A confidential relationship maybe inferred if the party so charged has disparate power and control over the decedent (Ten Eyck v Whitbeck, 156 NY 341 [1898]), such as a power of attorney, guardian, doctor, etc. However, even in the case of a guardian or attorney, a close family relationship may counterbalance any legal presumption, even to the point of dispensing with the need of an alternate explanation for the Will (NY PJI 7:56 [2005 ed], citing Matter of Walther, 6 NY2d 49 [1959] (committee and ward were sisters); Matter of Carmac, 300 AD2d 11 [2000] (attorney and client were son and father); Matter of Moskowitz, 279 AD 660 [1951] (physician and patient were daughter and mother); Matter of Weltz, NYLJ, March 27, 2003 at 22, affd 16 AD3d 428 [2005] (proponent and decedent were son and mother)). Indeed, it has been held that even if a confidential relationship has been established, the presence of a family relationship is generally sufficient to rebut any adverse inference (Matter of Swain, 125 AD2d 574 [1986], lv denied 69 NY2d 611 [1987]; Matter of Braiger, NYLJ, April 28, 2005 at 28; Matter of Guide, NYLJ, October 28, 1998 at 33).

In this case, there is some evidence of a confidential relationship between mother and son (a power of attorney, assistance with some finances, etc.). However, as Surrogate Roth wrote in Matter of Braiger (NYLJ, April 28, 2005 at 28), "even if a confidential relationship existed between decedent and proponent and undue influence can be inferred, proponent has effectively offset such inference with ample evidence establishing that decedent was animated by something other than undue influence..." The same result is called for here. For example, in Matter of Guide, (NYLJ, Oct. 28, 1998 at 33), this court wrote that "there must be some evidence that the confidential relationship was utilized to influence the testatrix's wishes or the [will drafting] process. Absent such evidence, the inference of undue influence does not arise and the burden never shifts to the beneficiary to explain the bequest." There is no such evidence here.

The evidence is more than sufficient to explain Ruth Zirinsky's testamentary plan, [*12]regardless of the outcome of an analysis based upon a confidential relationship. The salient bit of evidence in this regard is Ruth's letter to her children that she considered of such importance so as to request Mr. Levine to help her draft it. It describes her decision-making process in exercising her power of appointment. The evidence submitted by the objectants does no more than to establish the normal and expected interaction between a mother and child. Indeed, the record is replete with instances of Ruth Zirinksy's close relationship with all her children. Ironically, Ruth Zirinksy's decision to delay delivery of her letter to her children proved prescient, because it caused the very acrimony she feared in life. Her decision to delay the letter's deliverance until after her death was a rational and understandable desire to maintain harmonious family relations for the remaining years of her life.

To sum up the undue influence analysis, it is well-settled that any influence based upon gratitude, consanguinity, or affection is not necessarily or even presumptively undue (Matter of Swain, 125 AD2d 574, 575 [1986]). In Swain, the Second Department wrote that "[the] sense of family duty is inexplicably intertwined in this relationship [mother-daughter] which, under the circumstances, counterbalances any contrary legal presumption" that might otherwise exist. Without a showing that undue influence was actually exerted upon the decedent, mere speculation that opportunity and motive existed is insufficient to defeat summary judgment. The mere allegation of a confidential relationship is likewise insufficient to preclude summary judgment (Matter of Bustanoby, NYLJ, Dec. 30, 1997, at 28, affd 262 AD2d 407 [1998]. As pointed out by this court in the Matter of Bustanoby (NYLJ, Dec. 30, 1997 at 28), the courts must consider the totality of the circumstances when considering these issues. The relationship between Robert and his mother as evidenced by the facts, and even when considered in the light most favorable to the objectants, does not rise to the level of creating a material issue of fact. Therefore, the proponent's motions for summary judgment as to undue influence are granted.

As to the allegations of fraud, the objectants claim that the petitioner misled their mother about his management of the family's real estate interests and that as a result Ruth decided to favor Robert in her Will.

Although frequently joined, the concepts of undue influence and fraud are distinct. To prove fraud, and the objectants bear the burden on this issue, it must be shown that "the proponent knowingly made a false statement that caused decedent to execute a will that disposed of his [or her] property in a manner different from the disposition he [or she] would have made in the absence of that statement" (Matter of Clopper, 279 AD2d 730, 732 [2001]). Moreover, a finding of fraud must be supported by clear and convincing evidence (Simcusky v Salli, 44 NY2d 442 [1978]; Matter of D'Agostino, 284 AD2d 857 [2001]. As with allegations of undue influence, in order to defeat the motion for summary judgment on the issue of fraud, the objectants must come forward with more than "mere conclusory allegations and speculation" (Matter of Seelig, 13 AD3d 776,777 [2004]). Indeed, to defeat a motion for summary judgment as to fraud the objectants must come forward with sufficient evidence to show that there is an issue of fact to the effect that Robert made a false statement or statements to Ruth to induce her to make this Will, that Ruth believed the statement, and that without such statement the propounded Will would not have been executed (NY PJI 7:60). As with undue influence, a showing of motive and opportunity to mislead are insufficient; actual misrepresentation is necessary (Matter of Gross, 242 AD2d 333 [1977]). [*13]

The objectants have failed to come forward with anything more than unsupported conjecture regarding compensation taken by Robert from the trusts over the years relevant to the Will's execution. Of course, Robert's conduct as co-trustee is being challenged in the contested accountings now before the court. None of the objectants' arguments rise to the level of creating a triable issue of material fact. The objectants link Robert's various alleged defalcations to the text of Ruth's post-mortem letter of explanation to her children where she stated that "[w]e have all benefitted from Robert's efforts." In other words, the objectants allege that Robert lied about the financial condition of the trusts and their income from it. The court notes that Ruth was a co-trustee of these trusts. It further notes that the accountings display a substantial increase in values of the properties held by those trusts. Therefore, whatever may be proved against Robert at the accountings does not minimize the fact that the family real estate holdings experienced significant growth during Robert's tenure, that Ruth was also a co-trustee with access to the relevant data, and that Ruth described her gratitude to Robert for taking over the real estate business and thereby prevented Ruth's forced sale of those interests when Ralph died in 1980. The objectants' allegations are merely unsupported conjecture.

Without even a minimal showing of fraudulent misrepresentation, the opposition to summary judgment on the issue of fraud must fail.

The guardian ad litem for the infant children of Linda Zirinsky Gilbert and Jill Zirinsky Hirsch raised a third basis to deny the Will's admission to probate. He alleged Ruth Zirinsky did not understand or appreciate the meaning and significance of the terms of her Will. However, this objection has been withdrawn.

Based upon the foregoing, the objections to the probate of Ruth Zirinksy's Will are dismissed. The objectants' cross-motion for additional discovery is denied as moot. As the court noted in the decision quoted at the beginning of this opinion, this litigation was put on an expedited discovery schedule with strict time limits, on the consent and at the request of the parties. The papers submitted on the motions themselves give testimony to the extent of discovery conducted by all the parties. Under the circumstances of this case, the mere hope by the objectants that they might be able to uncover some evidence during further discovery is insufficient to deny summary judgment to the proponent (Kershis v City of New York, 303 AD2d 643 [2003]).

The guardians ad litem shall submit their affidavits of service for review. Their fees shall be affixed at the foot of the decree and they shall be paid by the estate within thirty (30) days of the date of that decree.

Settle decree.



Dated: November 18, 2005

John B. Riordan

Judge of the

Surrogate's Court

The appearance of counsel is as follows: