Opinion
2006-32517A.
Decided November 12, 2008.
CHRIS T. BRUNEA, ESQ. Buffalo, New York, For Ruth Hunt.
ERICH WEYAND, ESQ., Gowanda, New York.
FRANK DELLA POSTA, ESQ., Gowanda, New York.
On January 25, 2002, Lucy M. Hunt executed a last will and testament at her home in Gowanda. The will was drawn by Erich Weyand, Esq., and was witnessed by Mr. Weyand and Gloria Tomaszewski, a long time legal secretary at the Weyand firm. Ms. Hunt died on December 19, 2006, and her executors offered the will for probate on January 12, 2007.
A SCPA § 1404 examination of Mr. Weyand and Ms. Tomaszewski was held on April 4, 2007, after which objections were directed to be filed by May 21, 2007. A set of unsigned objections was faxed to the court on May 21, 2007. The objections were returned because no filing fee had been paid and the 2002 will was admitted to probate.
On July 26, 2007, the objectant moved to vacate the letters issued to Merle Allen and Bertha Studley, the executors under the 2002 will, and allow the late filing of objections. The court granted the motion to file late objections and objections were filed on October 22, 2007.
The objections alleged only that Lucy Hunt was unaware of "the nature and bounty of her estate."
Discovery has proceeded and the objectant has moved to amend her objections to include allegations of fraud and undue influence. In support of this application, objectant alleges that in 1999 the executors conspired to influence Frank Della Posta, the attorney who drafted decedent's 1988 will, to draw a new will for Lucy Hunt. Mr. Della Posta would not draw a new will without Mrs. Hunt asking him to do so, and Mr. Della Posta believed she may have lacked testamentary capacity. However, the instant will was not executed until January 25, 2002, and the objectant makes no claim that Lucy lacked the testamentary capacity to execute the will.
The objectant also contends that the executors were present in the home at the time Lucy executed her will. However, the 1404 hearing revealed that Lucy executed the will in the presence of Mr. Weyand and Ms. Tomaszewski while Ms. Studley and Mr. Allen were in another room in the home. That is the extent of the proof of undue influence.
To invalidate a will on the grounds of undue influence, the objectant must show "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" ( Matter of Walther, 6 NY2d 49, 53, 188 NYS2d 168, quoting from Children's Aid Soc. v. Loveridge, 70 NY 387, 394-5; Estate of Kumstar, 66 NY2d 691, 496 NYS2d 414; In re Zirinsky, 43 AD3d 946, 841 NYS2d 637 [2d Dept 2007], lv denied 9 NY3d 815, 849 NYS2d 31; In re Will of Ryan, 34 AD3d 212, 824 NYS2d 20 [1st Dept 2006], lv denied 8 NY3d 804, 830 NYS2d 700).
"A mere showing of opportunity and even a motive to exercise undue influence does not justify submission of that issue to the jury, unless there is in addition evidence that such influence was actually utilized" ( Walther, 6 NY2d 55, 188 NYS2d 168; see also Matter of Will of Coniglio, 242 AD2d 901, 663 NYS2d 456 [4th Dept 1997]; Matter of Tabaczynski, 217 AD2d 965, 629 NYS2d 904 [4th Dept 1995]). This requires more than conclusory allegations or speculation ( In re Young, 289 AD2d 725, 738 NYS2d 100 [3d Dept 2001]; In re Estate of Dietrich, 271 AD2d 894, 706 NYS2d 763 [3d Dept 2000]; Coniglio, 242 AD2d 901, 663 NYS2d 456 [4th Dept 1997]; In re Estate of Colverd, 52 AD3d 971, 860 NYS2d 254 [3d Dept 2008]). Here, there is nothing but speculation that Ms. Studley and Mr. Allen may have exerted any influence on decedent.
Further, while claims of undue influence are not routinely subject to summary judgment, summary judgment should not be withheld when the proponent of the will makes out a prima facie case for probate and the objectant fails to raise any material factual issues ( In re Will of Richardson, 43 AD3d 1352, 842 NYS2d 628 [4th Dept 2007]; Coniglio, 242 AD2d 901, 663 NYS2d 456 [4th Dept 1997]; In re Estate of Seelig, 302 AD2d 721, 756 NYS2d 305 [3d Dept 2003]). Mere hope that further discovery might lead to evidence that would prove a claim is insufficient to deny summary judgment ( In re Estate of Dietrich, 271 AD2d 894, 706 NYS2d 763 [3d Dept 2000]; In re Estate of Minervini, 297 AD2d 423, 745 NYS2d 625 [3d Dept 2002]; In re Young, 289 AD2d 725, 738 NYS2d 100 [3d Dept 2001]; In re Estate of Seelig, 13 AD3d 776, 786 NYS2d 210 [3d Dept 2004], lv denied 4 NY3d 707, 795 NYS2d 517).
Without any proof of undue influence, the objectant points to events that occurred around the time the testator died, almost five years after the will was executed, claiming that the executors and others "raided" Lucy's bank accounts. The estate contends that the executor, who also had decedent's power of attorney, made appropriate changes to Lucy's finances and all of the alleged "missing" money was properly transferred after her death. The objectants' claim is that Ms. Studley stole the money in late 2006 or early 2007, after Lucy died, so Ms. Studley must have exercised undue influence in 2002 when Lucy signed her will. The court cannot make that leap of logic. Even if the claims against Ms. Studley have validity to them, those claims can be raised when the account is filed.
That leaves the question of whether the amendment of the objections should be allowed, notwithstanding the lack of merit of the proposed amendments. While the SCPA is silent, under the CPLR, an application to amend a pleading to assert a meritless claim can be denied ( Betters v. Knabel, 288 AD2d 872, 732 NYS2d 509 [4th Dept 2001], lv dismissed and denied 98 NY2d 659, 746 NYS2d 275 [2d Dept 2002]; Smith v. City of New York, 288 AD2d 293, 733 NYS2d 446 [2d Dept 2001]; Gaspard v. North Shore University Hospital, 299 AD2d 520, 751 NYS2d 277 [2d Dept 2002]; Ferran v. Williams, 281 AD2d 819, 722 NYS2d 307 [3d Dept 2001], lv dismissed 97 NY2d 653, 737 NYS2d 53). Because the court sees no merit to the proposed amendment, it should not be permitted.
Accordingly, the motion to amend the objections is denied. Submit order on notice.