Opinion
March 4, 1996
Appeal from the Surrogate's Court, Suffolk County (Snellenberg, S.).
Ordered that the cross appeal is dismissed, without costs or disbursements, as the objectant is not aggrieved by the decree denying probate ( see, Parochial Bus Sys. v Board of Educ., 60 N.Y.2d 539); and it is further,
Ordered that the decree is affirmed insofar as appealed from, without costs or disbursements.
This appeal concerns a will contest between a brother and sister over their father's last will and testament which disinherited the sister. Contrary to the contention of brother, the proponent of the will, the evidence raised sufficient issues of fact to warrant submitting the issue of undue influence to the jury ( see, Matter of Walther, 6 N.Y.2d 49; Matter of Burke, 82 A.D.2d 260).
One week after the 94-year-old decedent's admission to a nursing home, the proponent, without notifying the objectant and against the advice of the decedent's physician, drove the decedent to a lawyer's office where the decedent executed a will naming the proponent as his sole beneficiary. This and other evidence permitted the inference that the proponent had convinced the decedent, in his weakened physical and mental state, that the objectant had misappropriated money from the decedent's accounts and, therefore, should not benefit from an inheritance ( see, Matter of Kaufman, 20 A.D.2d 464, 483, affd 15 N.Y.2d 825). The will, which disinherited a natural object of the decedent's bounty ( see, Matter of Elmore, 42 A.D.2d 240), constitutes an "unexplained departure from a previously expressed intention of the decedent" ( Matter of Walther, supra, at 55). That the proponent was the sole beneficiary ( see, Matter of Raskas, 213 A.D.2d 718; Matter of Bach, 133 A.D.2d 455) and procured the will in secrecy ( see, Matter of Collins, 124 A.D.2d 48) raised further questions of fact requiring resolution by a jury.
The proponent's remaining contentions are unpreserved for appellate review ( see, CPLR 5501 [a] [3]). O'Brien, J.P., Copertino, Santucci and Krausman, JJ., concur.