Opinion
2015-259
07-19-2017
In the MATTER OF THE PROBATE PROCEEDING FOR THE ESTATE OF Theodore STRAUSS, Deceased. Louis-Jack Pozner, Petitioner, v. Andrew O'Toole, Respondent-Objectant, Jeffrey Bernstein et al., Respondents-Objectants, Office of the Attorney General Charities Bureau, Respondent, United Jewish Federation, Respondent.
Lucas G. Mihuta, Esq., attorney for petitioner, Mack & Associates, PLLC, 270 Mount Hope Drive, Albany, New York 12202 William A. Toomey, Jr., Esq., attorney for respondent Andrew O'Toole, 121 State Street, Albany, New York 12207 Brian M. Quinn, Esq., attorney for respondents Jeffrey Bernstein et al., Tabner, Ryan & Keniry, LLP, 18 Corporate Woods Blvd., Ste. 8, Albany, New York 12211 Donna Cole Paul, Esq., Assistant Attorney General, New York State Attorney General's Office, Charities Bureau, The Capitol, Albany, New York 12224-0341 David Siegfeld, Esq., attorney for respondent United Jewish Federation, Ganz, Wolkenbreit & Siegfeld, LLP, 1 Columbia Circle, Albany, New York 12203
Lucas G. Mihuta, Esq., attorney for petitioner, Mack & Associates, PLLC, 270 Mount Hope Drive, Albany, New York 12202
William A. Toomey, Jr., Esq., attorney for respondent Andrew O'Toole, 121 State Street, Albany, New York 12207
Brian M. Quinn, Esq., attorney for respondents Jeffrey Bernstein et al., Tabner, Ryan & Keniry, LLP, 18 Corporate Woods Blvd., Ste. 8, Albany, New York 12211 Donna Cole Paul, Esq., Assistant Attorney General, New York State Attorney General's Office, Charities Bureau, The Capitol, Albany, New York 12224-0341
David Siegfeld, Esq., attorney for respondent United Jewish Federation, Ganz, Wolkenbreit & Siegfeld, LLP, 1 Columbia Circle, Albany, New York 12203
Stacy L. Pettit, S.
Presently before the Court in this contested probate proceeding is a motion by petitioner for summary judgment dismissing the objections of respondents Jeffrey Bernstein, Stephanie Muller, Joshua Solis, Benjamin Solis, Sandra Moses and Alan Moses (hereinafter respondents) and respondent Andrew O'Toole (hereinafter O'Toole). Respondents, but not O'Toole, have opposed the motion, petitioner has replied, respondents have sur-replied, and the matter is now submitted for decision.
As O'Toole has failed to respond to petitioner's motion, he has provided the Court no basis to deny petitioner's motion so long as petitioner establishes a prima facie entitlement to judgment as a matter of law (see CPLR 3212 ).
By way of background, decedent died testate a resident of Albany County on January 31, 2015. His purported last will and testament, dated May 26, 2014, was offered for probate by petitioner, the nominated executor and attorney-draftsperson, in March 2015. The will leaves decedent's entire multimillion dollar estate equally to three charitable organizations associated with the Jewish faith, Congregation Beth Abraham Jacob, Temple Israel of Albany, and the Jewish Federation of Northeastern New York. The will directs that the funds should be used to fund or create "services for the Jewish elderly of the Greater Jewish Community of the Capital District." Distributees and beneficiaries of an earlier will of decedent's have appeared in this proceeding and objected to probate of the 2014 will. The Attorney General's Charities Bureau and one of the charities have also formally appeared in this proceeding. The parties have conducted examinations pursuant to SCPA 1404, engaged in extensive discovery and participated, unsuccessfully, in settlement negotiations.
Petitioner now moves for summary judgment dismissing the objections. In support of his motion, petitioner has submitted his own affidavit, and affidavits by his counsel, Andrew Kugler, Deborah Goldstein and Miriam Adler, along with a memorandum of law and various exhibits, including deposition testimony by all respondents. In opposition, respondents have submitted an attorney affirmation with exhibits, an affirmation of an attorney retained by respondents as an expert with exhibits, and a memorandum of law.
A motion for summary judgment "shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party" ( CPLR 3212 [b] ). "Summary judgment in a contested probate case is proper only where the proponent establishes a prima facie case for probate and the objectant fails to raise a material issue of fact" ( Matter of Cameron , 126 AD3d 1167, 1167 [3d Dept 2015] ; see Matter of Vosilla , 121 AD3d 1489, 1490 [3d Dept 2014] ; Matter of Scaccia , 66 AD3d 1247, 1250 [2009] ). "It is not the function of a court deciding a summary judgment motion to make credibility determinations or findings of fact, but rather to identify material triable issues of fact (or point to the lack thereof)" ( Vega v. Restani Constr. Corp. , 18 NY3d 499, 505 [2012] ; accord Hall v. Queensbury Union Free Sch. Dist. , 147 AD3d 1249, 1250 [3d Dept 2017] ; see Ferrante v. American Lung Assn. , 90 NY2d 623, 631 [1997] ; S. J. Capelin Assoc. v. Globe Mfg. Corp. , 34 NY2d 338, 341 [1974] ; Glick & Dolleck v. Tri-Pac Export Corp. , 22 NY2d 439, 441 [1968] ).
Petitioner first argues that he is entitled to summary judgment dismissing the objections to probate based on lack of due execution. "To be duly executed, a will must be subscribed by the testator in the presence of at least two attesting witnesses, or the testator must acknowledge his or her signature to the witnesses[ and the] testator must also declare to each witness that the document is the testator's will" ( Matter of Yen , 127 AD3d 1466, 1466 [3d Dept 2015] ; see EPTL 3—2.1 [a] ). Wills that are executed under an attorney's supervision are presumed to be properly executed (see Matter of Cameron , 126 AD3d at 1168 ; Matter of Buchting , 111 AD3d 1114, 1115 [2013] ). "Further, the submission of the self-executing affidavits from both attesting witnesses also ‘creates a presumption of due execution and constitutes prima facie evidence of the facts therein attested to by the witnesses’ " ( Matter of Cameron , 126 AD3d at 1168, quoting Matter of Scaccia , 66 AD3d at 1251 ; see Matter of Clapper , 279 AD2d 730, 731 [2001] ). Petitioner bears the burden of establishing that the will was duly executed by a preponderance of the evidence (see Matter of Pirozzi , 238 AD2d 833, 834 [1997] ).
Here, petitioner, an attorney, drafted the 2014 will and conducted the execution ceremony. Both he and the other witness to the will, petitioner's spouse Rona Pozner, testified that decedent declared the will to be his last will and testament before the witnesses, signed his name to the end of the will in their presence and requested that they sign as witnesses, which they did, thus satisfying the statutory requirements. In addition, petitioner and Pozner executed affidavits of attesting witnesses after the execution ceremony which recite that the requirements of EPTL 3-2.1 were met. In fact, petitioner and respondents stipulated during discovery that respondents lacked evidence or direct knowledge that would support an allegation that decedent did not sign the purported 2014 will, that decedent did not receive a copy of the document before signing it, that decedent did not review a copy of the document before signing it, that there were not two witnesses present when the document was signed, that decedent did not declare the document to be his last will and testament, that decedent did not ask petitioner and Pozner to sign as witnesses, or that the witnesses signed as witnesses. The Court finds that petitioner has established prima facie entitlement to summary judgment dismissing the objections based on due execution (see Matter of Cameron , 126 AD3d at 1168 ; Matter of Buchting , 111 AD3d at 1116 ); therefore, the burden shifts to respondents to offer " ‘positive proof that the formal requirements of execution were not met’ " ( Matter of Buchting , 111 AD3d at 1116, quoting Matter of Pilon , 9 AD3d 771, 772 [3d Dept 2004] ).
In opposition, respondents argue that triable issues of fact exist regarding due execution with respect to an "interested witness issue." Specifically, respondents contend that petitioner and Pozner are not disinterested witnesses because of their affiliations with charities named in the will. Respondents argue that, because there are no other witnesses who can confirm that the formalities of due execution were complied with, the issue of due execution rests on credibility determinations and should therefore be determined at trial. Respondents fail to identify legal support for their argument that a motion for summary judgment dismissing an objection based on due execution can be defeated by the allegation that the will witnesses were interested.
In anticipation of respondents' argument that due execution is in question because the witnesses were allegedly not disinterested, petitioner submits that EPTL 3-3.2 does not actually require that the witnesses be disinterested; rather, that statutory provision voids bequests given in a will to persons who act as witnesses. EPTL 3-3.2 (a) specifically provides that "[a]n attesting witness to a will to whom a beneficial disposition or appointment of property is made is a competent witness and compellable to testify respecting the execution of such will as if no such disposition or appointment has been made." The statute further provides, however, that any bequest or appointment made to an attesting witness "is void unless there are, at the time of execution and attestation, at least two other attesting witnesses to the will who receive no beneficial disposition or appointment thereunder" ( EPTL 3-3.2 [a] [1] ).
The evidence established that petitioner and Pozner are affiliated with each of the three charitable beneficiaries of decedent's 2014 will. Petitioner and Pozner have been members of Temple Israel for over 40 years. Petitioner previously served as president, vice president and a board member, while Pozner has served as president. They have been affiliated with the Federation for over 40 years as well. Petitioner previously served as chairman of the Board and president. Pozner has also held various leadership positions for the Federation. They also have been associate members of the Congregation for a period of two years. Petitioner averred that neither he nor Pozner have received in the past, or expect to receive in the future, any compensation, remuneration or other financial benefit from Temple Israel, the Federation or the Congregation as a result of their affiliations or involvement with those organizations, including as a result of the testamentary dispositions contained in decedent's 2014 will.
It is noted that, as executor, petitioner shall receive payment in the form of statutory commissions; however, commission are compensation for services, not a beneficial disposition (see Matter of Marsloe , 88 AD3d 1003, 1004 [2d Dept 2011] ).
The Court does not consider petitioner and Pozner to be interested witnesses under these circumstances (see Matter of Edel , 182 Misc 2d 878, 886 [Sur Ct, Cattaraugus County 1999] ). Although they are associated with the beneficiaries through the practice of their faith, they are not employees of any of the organizations, nor do they otherwise receive any compensation from the organizations. Even assuming that petitioner and Pozner are interested witnesses, in that they benefit in some way from the charitable dispositions in decedent's will, such finding is insufficient to deny the will to probate on the ground of lack of due execution (see e.g. Matter of Altstedter , 53 Misc 3d 1202[A], 2012 NY Slip Op. 52520[U] [Sur Ct, Suffolk County 2012] ; Matter of Maset , 23 Misc 3d 1229[A], 2009 NY Slip Op. 52335[U] [Sur Ct, Dutchess County, 2009] ; Matter of Fracht , 94 Misc 2d 664, 666 [Sur Ct, Bronx County 1978] ). EPTL 3-3.2 plainly states that a witness who receives a beneficial disposition in a will is, nonetheless, "a competent witness." In fact, this statutory rule was enacted to remedy the hardships endured under the prior common law rule, which invalidated wills under which the witnesses received dispositions (see generally Matter of Dwyer , 192 AD 72, 76 [4th Dept 1920] ; see also Margaret Valentine Turano, Practice Commentaries, McKinney's Cons Laws of NY, Book 17B, EPTL 3-3.2 ). Respondents challenge the credibility of petitioner's testimony, but they have not offered any evidence contradicting petitioner's testimony regarding the will's execution and, therefore, have failed to rebut petitioner's prima facie case of due execution. Accordingly, the objections alleging lack of due execution are dismissed (see Matter of Buchting , 111 AD3d at 1116 ).
"As to testamentary capacity, petitioner [bears] the initial burden of establishing that decedent understood the nature and consequences of making the will, the nature and extent of [his] property, and the natural objects of [his] bounty" ( Matter of Vosilla , 121 AD3d 1489, 1490-1491 [3d Dept 2014], supra ; see Matter of Kumstar , 66 NY2d 691, 692 [1985] ; Matter of Prevratil , 121 AD3d 137, 140-141 [3d Dept 2014] ; Matter of Walker , 80 AD3d 865, 866 [2011], lv denied 16 NY3d 711 [3d Dept 2011] ; Matter of Ruparshek , 36 AD3d 998, 999 [3d Dept 2007] ).
Petitioner's evidence establishes that he and Pozner had both interacted with decedent on various occasions over a period of many years prior to the date of the will execution. Petitioner had been retained by decedent for legal services, including decedent's earlier estate planning. Decedent contacted petitioner in April 2014 for an appointment, but did not disclose what he wished to discuss. When petitioner met with him, decedent explained that he wished to revise his estate plan in order to disinherit his relatives. According to petitioner, he suggested that decedent may want to consider leaving some bequests to individuals in his estate plan; however, decedent declined to do so, stating that he preferred to make only the charitable dispositions. Petitioner then drafted a new will in accordance with decedent's request.
Decedent's prior will, drafted by petitioner and executed in December 2013, left the residue and bulk of decedent's estate to the same charities as the May 2014 will, while also providing bequests for some of the individual respondents. Decedent's codicil to the December 2013 will, executed in February 2014, specified that the charitable residuary bequests be used for "services for the Jewish elderly of the Greater Jewish Community of the Capital District," with specific types of services suggested by decedent as complying with this direction, and using the same language as the May 2014 will.
According to their testimony at the SCPA 1404 examinations, petitioner and Pozner went to decedent's residence to execute the will on May 26, 2014. They conversed for several minutes prior to commencing the will execution ceremony. They each testified that decedent was lucid during the will execution and was able to understand the nature and consequences of his will, including that he was disinheriting family members and friends who he had provided for in a previous will. He did not appear to be suffering from any medical ailments or disabilities which interfered with his capacity to execute a will. In addition, they testified that he was aware of who his family members were and the approximate amount of his assets. Their testimony further indicated that decedent felt his family did not visit him and did not care for him and he would prefer his assets be used to provide services to widowers who found themselves similarly situated at an elderly age. Moreover, both petitioner and Pozner executed affidavits of attesting witnesses which stated that decedent was of sound mind and memory and was competent to make a will on May 26, 2014. This evidence "constituted prima facie evidence of the facts attested to and created a presumption of testamentary capacity" ( Matter of Prevratil , 121 AD3d at 141 ; accord Matter of Vosilla , 121 AD3d at 1491 ; see Matter of Walker , 80 AD3d at 866 ).
The Court finds that petitioner's evidence establishes prima facie entitlement to judgment as a matter of law on the issue of testamentary capacity (see Matter of Castiglione , 40 AD3d 1227, 1228 [3d Dept 2007] ; Matter of Ruparshek , 36 AD3d at 999 ). The burden therefore shifts to respondents to raise a genuine issue of material fact regarding decedent's testamentary capacity at the time he executed the 2014 will in order to avoid summary judgment dismissing their objection (see Matter of Vosilla , 121 AD3d at 1492 ).
In opposition, respondents argue that the issue of capacity rests on credibility determinations and should therefore be submitted to a jury. Specifically, again relying on the argument that petitioner and Pozner are interested witnesses and, therefore, the veracity of their testimony should be called into question, respondents contend that the issue of testamentary capacity should be one for the factfinder. They argue that a rational juror could conclude that decedent did not understand the nature and consequences of executing a will, or the nature or extent of the property or the natural objects of his bounty. They also point to certain statements contained within decedent's medical records submitted with their motion papers which they contend calls decedent's capacity into question.
Respondents point to notes contained in decedent's medical records from June 2014 that indicate decedent had two living sisters at a time when all of his siblings were deceased. This brief notation, contained in a medical report which also indicates that decedent was oriented to time, place and person, and that "cognitive functioning was normal," is insufficient to raise a material question as to " ‘whether the decedent was lucid and rational’ at the time the will was signed’ " (Matter of Prevratil , 121 AD3d 137, 141 [3d Dept 2014]., quoting Matter of Paigo , 53 AD3d 836, 838 [3d Dept 2008] ; accord Matter of Vosilla , 121 AD3d 1489, 1492 [3d Dept 2014] ).
Even viewing the evidence in the light most favorable to respondents, the nonmoving party, as this Court must on a motion for summary judgment (see Hall v. Queensbury Union Free Sch. Dist. , 147 AD3d 1249, 1250 [3d Dept 2017], supra ), the Court finds that respondents have failed to raise a material issue of fact regarding decedent's testamentary capacity. It must be noted that several of the respondents — Sandra Moses, Andrew O'Toole and Williams Solis — testified to having more frequent interactions with decedent than his other family members, and they each stated that he continued to have normal cognitive function in the year prior to his death. The other respondents largely testified that decedent's functioning and capacity were unimpaired during their interactions with him over the years; however, they lacked knowledge or direct evidence of decedent's cognitive abilities and medical condition on May 26, 2014. Respondents offer no evidence that conflicts with the testimony of petitioner and Pozner establishing that decedent had capacity to execute a will on May 26, 2014. Rather, respondents want this Court to find that the testimony of petitioner and Pozner must be subjected to a credibility determination by the factfinder due to their affiliations with the charitable beneficiaries. There is no evidence in the record that decedent lacked testamentary capacity at the time he executed the will, or even at any other time during 2014. Accordingly, the Court finds that petitioner has met his burden of establishing prima facie entitlement to judgment as a matter of law and respondents have failed to raise a material question of fact sufficient to defeat summary judgment. Therefore, the objections based of lack of testamentary capacity are dismissed (see Matter of Vosilla , 121 AD3d at 1492 ; Matter of Prevratil , 121 AD3d at 141 ; Matter of Walker , 80 AD3d at 867 ).
" ‘To establish undue influence, the burden is on the objectant to show that the influencing party's actions are so pervasive that the will is actually that of the influencer, not that of the decedent’ " (Matter of Prevratil , 121 AD3d at 141-142, quoting Matter of Malone , 46 AD3d 975, 977 [2007] ; see Matter of Greenwald , 47 AD3d 1036, 1037 [3d Dept 2008] ). "Facts must be sufficiently set forth to show that the influencing party had a motive to influence, the opportunity to influence, and that such influence was actually exercised" ( Matter of Malone , 46 AD3d at 977 ; see Matter of Fellows , 16 AD3d 995, 996 [3d Dept 2005] ). "Mere speculation and conclusory allegations, without specificity as to precisely where and when the influence was actually exerted, are insufficient to raise an issue of fact" ( Matter of Walker , 80 AD3d at 867 ; see Matter of Stafford , 111 AD3d 1216, 1217 [3d Dept 2013], lv denied 23 NY3d 904 [2014] ).
With respect to undue influence, it is the respondents who generally bear the burden of establishing that the will was procured as a result of undue influence exercised over decedent (see Matter of Stafford , 111 AD3d at 1217 ). Respondents assert, however, that decedent was in a confidential relationship with petitioner and with his religious groups, and the Court should conclude that " ‘[a]n inference of undue influence’ arises which requires the beneficiary to come forward with an explanation of the circumstances of the transaction" ( Matter of DelGatto , 98 AD3d 975, 978 [2d Dept 2012], quoting Matter of Neenan , 35 AD3d 475, 476 [2d Dept 2016] ; see Matter of Stafford , 111 AD3d at 1217 n 2 ).
Petitioner, although not a beneficiary of decedent's will, has provided ample evidence explaining the circumstances of his relationship with decedent. The evidence established that he first met decedent in the early 1980s at Temple Israel, where they both attended religious services. Shortly thereafter, decedent approached petitioner for advice regarding a legal issue on behalf of his mother. Over the ensuing decades, decedent retained petitioner for his own legal matters on several occasions, including landlord tenant issues, a tax issue, and to administer the estate of decedent's spouse in the mid-2000s.
In August 2013, decedent approached petitioner to discuss his own estate plan. Decedent informed petitioner that he wished to do something for other single, elderly persons who, like himself, would benefit from some assistance with home-related chores and activities, and would enjoy a visit from someone in the community. Petitioner continued to work with decedent to refine his testamentary plan in order to achieve the result he desired, and suggested that the Federation may be a type of organization that could carry out decedent's plan. Petitioner also inquired of decedent whether he might leave some bequests to family members with whom he continued to maintain relationships. Although petitioner discussed with decedent the option of making some gifts during his lifetime through a lifetime trust, and even drafted a trust in line with this proposition, decedent unequivocally rejected this proposal, determining that he did not want to make such a gift during his lifetime. Thereafter, decedent decided to make bequests to certain family members and leave the residue of his estate to the three charities. A will to this effect was drafted by petitioner, and executed by decedent on December 24, 2013. Shortly thereafter, decedent contacted petitioner because he wanted to amend his testamentary plan in order to direct that his charitable estate funds be used for services benefitting the elderly Jewish community. Petitioner prepared a codicil to this effect, which was executed in February 2014.
Respondents also testified that decedent lacked domestic skills and would request assistance from family members with respect to household chores and activities. Jeffrey Bernstein testified that, after the death of decedent's spouse, decedent requested his help in this respect. Benjamin Solis testified that decedent reached out to his mother for help after decedent's wife passed away.
In April 2014, when decedent informed petitioner that he did not want to leave any part of his estate to his relatives, petitioner discussed this with decedent. Petitioner pointed out that part of decedent's estate was inherited from his spouse's estate, and that she might have wanted some of those assets to be distributed to her relatives. Petitioner also noted that decedent had some family members with whom he maintained relationships; however, decedent stated that he wanted to express his charitable intent and directed petitioner to draft a new will leaving his estate only to charities. Thereafter, petitioner drafted the 2014 will in accordance with decedent's direction and provided it to decedent for review prior to the execution ceremony.
Petitioner testified that decedent chose not to leave any portion of his estate to family members because "they don't really care about me, they don't come around, don't have much to do with me." Testimony elicited from respondents indicated that several of them had minimal contact with decedent. Benjamin Solis testified that he saw decedent once or twice a year at most from 2010 to decedent's death in 2015, and did not communicate with him by phone, email or other manner. Jeffrey Bernstein testified that he last saw decedent at a funeral in 2008, and spoke with him, by telephone, only one time after that. Joshua Solis testified that he last saw decedent at a funeral in 2008, and could not recall having any interaction with him from 2008 through 2015. Stephanie Muller also testified that she may not have interacted with decedent at all from the years 2008 through 2015. Other respondents did maintain a more regular relationship with decedent. William Solis, the surviving spouse of decedent's predeceased niece Marsha, testified that he saw decedent approximately twice a month. Williams Solis would do household chores for decedent, or they would have lunch or coffee together. Andrew O'Toole, the nephew of decedent's predeceased spouse, also regularly visited decedent to help him around the house. Decedent's cousin, Sandra Moses, spoke with decedent by telephone regularly, and would occasionally visit decedent if she was in the area.
In support of his motion for summary judgment, petitioner argues that respondents lack direct evidence of undue influence being exercised upon decedent. In their deposition testimony, respondents individually conceded that they lacked direct evidence of petitioner actually influencing decedent; although William Solis testified that decedent told him "on occasion" that his attorney — whose name was not identified — "was pressuring him to leave his estate to the synagogue." Respondents' deposition testimony revealed that they suspected petitioner influenced decedent based almost exclusively on petitioner's affiliation with the charities, although they admittedly lacked direct knowledge of the exercise of any such influence.
Petitioner asserts that this statement is barred by the Dead Man's statute (see CPLR 4519 ). It is noted that "evidence excludable at trial under the Dead Man's Statute may nevertheless be used to defeat a motion for summary judgment" (Wasson v. Bond , 134 AD3d 1224, 1225 [3d Dept 2015] ).
Respondents also indicated that it would be out of character for decedent to leave his entire estate to charities. During their depositions, many respondents presumed that decedent did not make any charitable donations during his lifetime, as he had a reputation for being remarkably frugal. Notably, respondents indicated that decedent was never monetarily generous towards them during his lifetime, with the exception of some holiday or celebratory gifts. For example, William Solis and Stephanie Muller both testified that decedent would regularly pick up a few groceries for Thelma Strauss, his disabled, indigent sister (who was Stephanie Muller's mother and William Solis's mother-in-law), and always required immediate reimbursement. William Solis also recalled that, if decedent took him out to lunch, he would use coupons to lower the bill. He opined that decedent maybe donated $10 or $15 to an animal-related charity during his life, but nothing more than that. In addition, Stephanie Muller testified that she had heard from her mother that decedent gave some money to help pay her college tuition, but later required that it be repaid. Sandra Moses, who testified that she spoke with decedent regularly by phone, said she did not know decedent to be a charitable person and she considered him frugal. Jeffrey Bernstein testified that decedent "wasn't a giving person." Petitioner, however, has provided testimonial and documentary evidence establishing that decedent did make regular contributions, albeit in small amounts, to all three of the named charities for many years prior to both the 2013 and the 2014 will.
With respect to the elements of undue influence, respondents contend that petitioner's knowledge of decedent's sizeable estate, approximately $3.7 million, constitutes sufficient motive for petitioner to attempt to influence decedent's estate planning. As for opportunity, respondents argue that the evidence supports a finding that petitioner had opportunity to influence decedent, who was elderly, lived alone, and depended on services offered by the charitable beneficiaries. Respondents further argue that a rational juror could conclude that undue influence was exercised upon decedent. They assert that petitioner has relied upon self-serving statements that are uncorroborated by any disinterested witnesses or documentary evidence. Specifically, respondents contend that petitioner's testimony regarding the planning, drafting and execution of the 2014 will "is entirely fabricated, or at least a jury could so determine." Respondents, however, offer no evidence that contradicts petitioner's version of these events or otherwise establishes that actual undue influence was exercised over decedent.
Respondents assert that a material question of fact as to undue influence exists because petitioner was associated with the beneficiaries (see Matter of Moles , 90 AD3d 473, 474 [1st Dept 2011] ; Matter of Elmore , 42 AD2d 240, 241 [3d Dept 1973] ; Matter of Burke , 82 AD2d 260, 274 [2d Dept 1987] ; Matter of Edel , 182 Misc 2d 878, 884 [Sur Ct, Cattaraugus County 1999], supra ). The evidence here establishes that this proceeding is distinguishable from the cases holding that a genuine issue of material fact exists where the attorney who drafted the will is associated with a beneficiary. Unlike the cases so holding, here petitioner and decedent formed a relationship with each other decades prior to the drafting of the 2014 will. The facts here show that it was decedent and petitioner's mutual affiliation with the named beneficiaries that brought them together, as both men were active members of Albany's Jewish community and attended services at Albany temples.
Respondents assert there is circumstantial evidence tending to show that petitioner exercised undue influence over decedent, in that there is no evidence of a change in their relationships with decedent from December 2013 to May 2014 which would explain the changes made to decedent's testamentary plan during that time, thus casting doubt on petitioner's testimony. Respondents' own testimony, however, primarily demonstrates that many of them had intermittent to no contact with decedent for many years before his death, and that decedent had never been generous with monetary gifts to respondents. Similarly, respondents also allege that the May 2014 will was a radical departure from the December 2013 will and the February 2014 codicil. The December 2013 will left decedent's residence, valued at $195,000, to Sandra and Alan Moses, and a total of $90,000 in cash bequests to Andrew O'Toole, Jack O'Toole, Michael O'Toole, Benjamin Solis, and William Solis, and the residue to the Congregation, the Temple and the Federation. Accordingly, as petitioner points out, the 2013 will left less than 10% of decedent's estate to friends and family, while the bulk of it went to the same three charities who are beneficiaries of the May 2014 will. Moreover, a departure from a prior testamentary scheme will not invalidate a will where the revisions are explained by the decedent and consistent with a decedent's interests (see Matter of Stafford , 111 AD3d 1216, 1218 n 5, supra ; Matter of Makitra , 101 AD3d 1579, 1581 [4th Dept 2012] ). Here, "decedent's changes to his will do not constitute an ‘unexplained departure from a previously expressed intention of decedent’ " ( Matter of Lee , 107 AD3d 1382, 1384 [4th Dept 2013] ; Matter of Walther , 6 NY2d 49, 55 [1959] ).
Finally, respondents have submitted an expert witness affidavit by Christine Cioffi, an attorney who regular practices in the areas of estate planning and administration. Cioffi opines that the procedures and practices employed by petitioner in connection with the estate planning services he performed for decedent were a deviation from standard procedures and practices. Specifically, Cioffi faults petitioner for failing to obtain an asset list and family tree, and for not maintaining adequate notes and records. She further questions petitioner's failure to inquire as to decedent's prior estate plan, to provide independent legal advice, to charge a fee, to advise decedent in writing of any conflicts and obtain his consent, and to properly document decedent's intent and reasons for disinheritance.
Petitioner counters that respondents' expert disclosure is untimely and should be precluded. Pursuant to a recent amendment of CPLR 3212, however, "[w]here an expert affidavit is submitted in support of, or opposition to, a motion for summary judgment, the court shall not decline to consider the affidavit because an expert exchange pursuant to [CPLR 3101 (d) (1) (i) ] was not furnished prior to the submission of the affidavit."
Cioffi's affidavit does not consider the long period of time decedent knew petitioner or the knowledge petitioner already had regarding decedent's assets and family tree from handling decedent's wife's estate or his other legal matters, and it does not discuss decedent's own independent relationship with the Jewish community.
Respondents assert that the existence of conflicts of interest and alleged ethical violations, as outlined by their expert witness, attorney Christine Cioffi, also preclude an award of summary judgment to petitioner. Specifically, they assert that petitioner violated Rules 1.7, 1.8 and 2.1 of the Rules of Professional Conduct because he failed to exercise independent professional judgment or render candid advice, he was conflicted and unable to explain any alternative charities to decedent, his interest in soliciting funds for the charities differed from decedent's interests in his estate plan, and because he solicited a gift for an organization with which he maintained a close, family relationship. Respondents cite to several ethics opinions issued in other states, but not any from New York. Inasmuch as the expert opinion fails to offer any evidence — circumstantial or direct — of such alleged violations or actual influence being exerted upon decedent by petitioner, it is insufficient to raise a material question of fact on this issue. Accordingly, the objections based on undue influence are dismissed (see Matter of Cameron , 126 AD3d 1167, 1169 [3d Dept 2015], supra ; Matter of Vosilla , 121 AD3d 1489, 1494 [3d Dept 2014], supra ; Matter of Prevratil , 121 AD3d 137, 144-145 [3d Dept 2014], supra ).
Respondents also objected to letters testamentary being issued to petitioner on two grounds, first, that the 2014 will is invalid, and second, that petitioner does not possess the qualifications required of a fiduciary by reason of dishonesty, improvidence, want of understanding, or being otherwise unfit for the execution of the office (see SCPA 707 [1 ] [e] ). Respondents bear the burden of proving that petitioner is unfit to act as executor (see Matter of Palma , 40 AD3d 1157, 1158 [3d Dept 2007] ).
Petitioner asserts that respondents lack standing to make such an argument because, if the will is admitted to probate, respondents will no longer have an interest in decedent's estate, thus they would not be adversely affected by the appointment of petitioner as executor (see SCPA 1410 ; Matter of Wang , 5 AD3d 785 [2d Dept 2004] ; Matter of O'Brien , 24 AD2d 779, 779 [3d Dept 1965] ). In response, respondents assert that petitioner's argument is premature as the will has not yet been admitted to probate. They further contend that they have standing to make this objection as persons interested under SCPA 103 (39). Finally, they assert that even if they lose standing to object to the appointment of petitioner as executor due to the will being admitted to probate, the Court could still authorize their objections based on public policy or other equitable grounds.
While respondents certainly have standing to object to probate of the will, the question of who will act as fiduciary is a different matter. If the 2014 will is not admitted to probate, it necessarily follows that petitioner will not be appointed as executor. If the 2014 will is admitted to probate, none of the respondents will be "person[s] entitled to share as beneficiar[ies] in the estate" ( SCPA 103 [39 ] ) and, therefore, the appointment of petitioner could not adversely affect their interests (see SCPA 1410 ). Accordingly, the Court agrees with petitioner that respondents lack standing to challenge the qualifications of the named fiduciary (cf. Matter of Reape , 110 AD3d 1082, 1083 [2d Dept 2013] ; compare Matter of Brumer , 69 AD2d 438, 439-440 [3d Dept 1979] ). Moreover, respondents have failed to meet their burden on this motion of establishing that petitioner is not qualified to act as executor (see Matter of Brown , 138 AD3d 1191, 1193 [3d Dept 2016] ).
With respect to the objection based on duress, petitioner points out that the Pattern Jury Instructions do not recognize duress as an independent basis by which to challenge the probate of a will (see PJI 2d 7:45 et seq.); rather, duress is often a component of an undue influence objection (see Matter of Rosasco , 31 Misc 3d 1214[A], 2011 NY Slip Op. 50673[U] [Sur Ct, NY County 2011] ; see also Matter of Young , 2017 NY Slip Op. 30938[U], *2 n 1 [Sur Ct, NY County 2017] ); see e.g. Matter of Greenwald , 47 AD3d 1036, 1037 [3d Dept 2008], supra ). In fact, duress is the "gross, obvious and palpable type of undue influence which does not destroy the intent or will of the testator but prevents it from being exercised by force and threats of harm to the testator or those close to him" ( Matter of Rosasco , 2011 NY Slip Op. 50673[U], at *9). According to the Restatement of Property, "[a] donative transfer is procured by duress if the wrongdoer threatened to perform or did perform a wrongful act that coerced the donor into making a donative transfer that the donor would not otherwise have made" ( Restatement [Third] of Property [Wills & Don. Trans.] § 8.3 [c] [2003]; see Matter of Rosasco , 2011 NY Slip Op. 50673[U], at *11). "An act is wrongful if it is criminal or one that the wrongdoer had no right to do" ( Restatement [Third] of Property [Wills & Don. Trans.] § 8.3 [c] [comment] [2003] ).
Petitioner argues that the record is devoid of any evidence that decedent executed the will while under duress imposed upon him by petitioner or another. He further points out that none of the respondents could identify any evidence of duress to support their claim. Respondents counter that they are not asserting a duress objection based on physical threats; rather, that objection was withdrawn and they are instead relying upon the kind of duress intertwined with undue influence. Accordingly, to the extent respondents' objections were based on duress as a component of undue influence, such objections have been addressed. To the extent the objections raise duress as an independent circumstance involving threats or harm, such objections are dismissed based on respondents' concession and the lack of any evidence of duress (see Matter of Engstrom , 47 Misc 3d 1212[A], 2014 NY Slip Op. 51936[U] [Sur Ct, Suffolk County 2014] ).
With respect to the objections sounding in fraud, mistake, misrepresentation, deceit and abuse of trust, petitioner initially contends that these objections should be dismissed pursuant to CPLR 3016 (b) for failure to plead in detail. Respondents counter that, even if their pleadings are defective, such defects may be cured by demonstrating the existence of a triable issue of fact.
CPLR 3016 (b) provides that, "[w]here a cause of action or defense is based upon misrepresentation, fraud, mistake, willful default, breach of trust or undue influence, the circumstances constituting the wrong shall be stated in detail." Surrogate's Court Rule 207.23 further provides that, "[i]n any probate proceeding in which objection is made upon the grounds that the execution of the propounded instrument was procured by fraud or undue influence and the proponent moves for a bill of particulars, the proponent shall be entitled as of course to the particular false statements, suppressions of fact, misrepresentations, or other fraudulent acts alleged to have been practiced upon the decedent, the place or places where these events are claimed to have occurred and the persons who perpetrated them."
Petitioner points out that respondents' objections merely state that the will was "executed through deceit, fraud or connivance practiced upon decedent by the Charity Beneficiaries who knowingly made a misrepresentation or false statement or accusation to decedent." As for mistake and abuse of trust, the objections state that these are among the grounds upon which the purported will "is invalid as a last will and is illegal and void of disposition." The factual basis for these objections, including the persons who committed the acts, are not included. Accordingly, the Court agrees with petitioner that respondents have failed to provide the requisite detail for these causes of action. Furthermore, as set forth below, the Court finds that respondents have failed to meet their burden on this motion to raise a genuine issue of material fact with respect to these objections.
Petitioner contends that the objections alleging fraud, misrepresentation and deceit should be dismissed as there are no material issues of fact regarding these objections. Petitioner further asserts that the evidence required to prove misrepresentation and deceit would be the same as the evidence supporting fraud, assuming without conceding that misrepresentation and deceit qualify as objections separate and distinct from fraud. Petitioner asserts there is no evidence in the record of misrepresentations or false statements made to decedent which caused him to dispose of his assets in manner he would not have otherwise chosen, and respondents were unable to identify any such evidence when questioned about these objections. In their discovery responses, respondents stated that they were not present during decedent's encounters with petitioner and the beneficiaries and, thus, lacked personal knowledge of the fraud, misrepresentations and deceit exercised upon him. O'Toole's response for more particularized information on these objections was "retracted."
With regard to fraud, respondents assert that they are not asserting an objection based on actual fraud; rather, they are alleging constructive fraud based upon the existence of a confidential relationship. They argue that decedent was in confidential relationships with petitioner and with the religious groups, thus shifting the burden to the stronger party to prove by clear and convincing evidence that the transaction was free from undue influence (see Matter of Dwyer v. Valachovic , 137 AD3d 1369, 1371 [3d Dept 2016] ). Petitioner replies that respondents did not plead constructive fraud, only fraud, and since the two objections are distinct, they should not now be permitted argue constructive fraud occurred.
"To establish fraud, it must be shown that the ‘proponent knowingly made a false statement that caused decedent to execute a will that disposed of [decedent's] property in a manner different from the disposition [decedent] would have made in the absence of that statement’ " ( Matter of Clapper , 279 AD2d 730, 732 [3d Dept 2001], supra , quoting Matter of Coniglio , 242 AD2d 901, 902 [4th Dept 1997] ; accord Matter of Young , 289 AD2d 725, 727 [3d Dept 2001] ; see Matter of Paigo , 53 AD3d 836, 838 [3d Dept 2008] ). Thus, "the objectant must offer evidence demonstrating that the acts of the influencing party effectively made the will [his or] her own and not that of the decedent" ( Matter of Young , 289 AD2d at 727 ; see Matter of Clapper , 279 AD2d at 732 ).
"The elements of a cause of action to recover for constructive fraud are the same as those to recover for actual fraud with the crucial exception that the element of scienter ... is dropped and is replaced by a requirement ... [to] prove the existence of a fiduciary or confidential relationship warranting the trusting party to repose his or her confidence in [a] defendant and therefore to relax the care and vigilance he or she would ordinarily exercise in the circumstances" ( MME. Pirie's, Inc. v. Keto Ventures, LLC , 2017 NY Slip Op. 04945, at *2 [3d Dept 2017], quoting Levin v. Kitsis , 82 AD3d 1051, 1054 [2d Dept 2011] [internal quotation marks, brackets, ellipsis and citations omitted]; see Sears v. First Pioneer Farm Credit, ACA , 46 AD3d 1282, 1286 [3d Dept 2007] ).
While petitioner and decedent were in a confidential relationship as attorney and client (see Matter of Henderson , 80 NY2d 388, 392 [1992] ), respondents have not presented any evidence that petitioner had control or influence over decedent. Nor have they proffered evidence that decedent suffered from a physical or mental incapacity, or that he lacked the ability to manage his own affairs and exercise his own free will (compare Dwyer v. Valachovic , 137 AD3d at 1371 ; Matter of Cameron , 126 AD3d 1167, 1169 [3d Dept 2015], supra ). Although petitioner held a power of attorney for decedent, there is no evidence that he used it to make financial decisions for decedent, and the mere existence of the power of attorney is insufficient to establish a confidential relationship such as would shift the burden to petitioner (see Dwyer v. Valachovic , 137 AD3d at 1371 ). Moreover, the Court has found that petitioner has met his burden of establishing that the relationship was free from undue influence and respondents have not offered evidence to the contrary. In any event, as respondents failed to present, among other things, any evidence of a knowingly false statement made by petitioner or any other person involved in the drafting or execution of the will, the objections based on constructive fraud, misrepresentation and deceit are dismissed (see Matter of Paigo , 53 AD3d at 838 ; Matter of Colverd , 52 AD3d 971, 973-974 [3d Dept 2008] ; Matter of Clapper , 279 AD2d at 732 ).
As for respondents' objection based on overreaching, petitioner asserts that it is not a separate basis for objecting to probate; rather, it falls under the objection of undue influence. Petitioner further argues that no specific evidence of overreaching has been produced by respondents and, therefore, the objection should be dismissed.
Respondents assert that the same evidence that supports undue influence supports their allegation of overreaching by petitioner, stating that petitioner "overreached by committing undue influence and causing the decedent to disinherit all of his friends and family and to donate $3.6 million to charity, and by getting the decedent to donate to charities that did not specialize in the services allegedly desired by the decedent." Inasmuch as respondents are not asserting overreaching as an objection that is independent from their objection based on undue influence, this objection is dismissed.
Petitioner argues that the objection based on mistake should be dismissed because there are no genuine issues of material fact as to whether the 2014 will was the product of a mistake, and respondents have failed to identify any specific mistake in their objections or during discovery. Respondents argue that the existence of a confidential relationship and constructive fraud require petitioner to provide an explanation to disprove mistake, and therefore prevent the dismissal of the objection based on mistake. Respondents, however, have failed to identify any specific mistake that occurred; rather, they make speculative allegations that petitioner "may have very well imputed a mistaken impression upon the decedent, such as his legal ability to dispose of less than all of his assets, the ability of the beneficiaries to fulfill his plan and objectives, the availability of other beneficiaries, the tax implications of family gifting, and the effect of the conflict and undue influence on the decedent's estate plan, among other things."
As is relevant here, "[a] will is entitled to probate even if decedent was mistaken concerning extraneous facts which might otherwise have caused decedent to make a different disposition, unless the mistake of fact was the product of undue influence" ( Matter of Young , 289 AD2d at 727 ; see Matter of Dickinson , 273 AD2d 89, 90 [1st Dept 2000] ; Matter of Arnold , 200 Misc 909 [Sur Ct, NY County 1951], affd 282 App Div 670 [1st Dept 1953] ; Matter of Forbes , 14 NYS 460, affd 128 NY 640 [1891] ; Clapp v. Fullerton , 34 NY 190 [1866] ; Matter of Tousey , 34 Misc 363 [1901] ; see also 39 NY Jur 2d, Decedent's Estates, § 559, at 101). Inasmuch as the alleged mistake has not been identified, there are no material questions of fact regarding a mistake which should be put before a finder of fact. Accordingly, the objection based on mistake is dismissed.
Petitioner contends that the objections of "abuse of trust" and "conflict of interest" are not independent legal bases for objecting to probate; rather, they are encompassed by the objection based on undue influence (see Matter of Schure , 2012 NY Slip Op. 32986[U] [Sur Ct, Nassau County 2012] ; see also PJI 7:56 ). Therefore, petitioner concludes, these objections should be dismissed.
Respondents assert that the same evidence that supports undue influence also supports their claim of abuse of trust, stating that decedent "trusted [petitioner] to act as independent and in his best interests. Nevertheless, [petitioner] breached this trust by engaging in undue influence and other wrongs." As respondents do not provide any specific evidence of abuse of trust independent of their claim of undue influence, this objection is dismissed. Similarly, respondents' argument regarding a conflict of interest is encompassed by their objection based on undue influence; therefore, the objections based on conflict of interest are dismissed.
In conclusion, petitioner has established prima facie entitlement to judgment as a matter of law dismissing the objections and admitting the 2014 will to probate and respondents have failed to raise a material issue of fact regarding any of their objections. To the extent the parties' arguments were not specifically addressed, they were found to lack merit. It is hereby
ORDERED AND DECREED that petitioner's motion is granted, the objections are dismissed, the will dated May 26, 2014 is admitted to probate, and letters testamentary shall issue to petitioner.
Papers Considered:
1) Petitioner's Notice of Motion dated April 24, 2017; Affidavit of Andrew Kugler with Exhibits; Affidavit of Deborah Goldstein with Exhibits; Affidavit of Miriam Adler with Exhibits; Affidavit of Louis Jack Pozner with Exhibits; Attorney Affirmation of Lucas Mihuta with Exhibits; Memorandum of Law;
2) Respondents' Jeffrey Bernstein et al. Affirmation of Brian M. Quinn, Esq., in Opposition, dated May 16, 2017, with Exhibits; Affirmation of Cristine Cioffi, Esq., dated May 15, 2017, with Exhibits; Memorandum of Law;
3) Petitioner's Attorney Affirmation of Lucas G. Mihuta, Esq., with Exhibits, in Reply;
4) Correspondence by Brian M. Quinn, dated May 22, 2017, in Surreply.