Surrogate Nora Anderson
In this contested probate action, decedent's second wife, Maria, moved for summary judgment dismissing objections filed by decedent's two children from his first marriage and an alleged non-marital son, to a will and codicil. Objectants argued questions of fact regarding decedent's testamentary capacity, and undue influence, among other things, existed. The codicil revoked the portion of the will dividing decedent's businesses between Maria and his children, serving to disinherit the children, and making Maria the sole beneficiary of the entire estate. The court found Maria submitted affidavits from decedent's physician and children of his second marriage attesting to his capacity, and being mentally competent. Yet, objectants submitted evidence controverting such submissions, and the attorney-draftsman's own testimony raised serious questions. The court noted the attorney testified he never spoke to decedent out of Maria's presence, raising concerns of whether the instrument was a result of decedent's or Maria's wishes, and finding the codicil was drafted after decedent suffered a stroke. Thus, it ruled such allegations and submissions gave rise to an inference of undue influence. It denied dismissal of the objections alleging undue influence and testamentary capacity.
