Surrogate Margarita Lopez Torres
In a contested probate proceeding, Andersen sought probate of a written instrument dated July 1, 2007, which purported to be the last will and testament of the decedent. Verified objections to probate were filed by the objectant, who asserted that the propounded instrument was not duly executed, that the decedent lacked testamentary capacity, and that the propounded instrument is the product of fraud, duress and undue influence exercised by Andersen. Andersen moved to dismiss the objections interposed by the objectant. The court found triable issues of material fact with respect to the decedent's testamentary capacity and the alleged exercise of undue influence by Andersen. The court noted evidence proffered by the objectant which indicated that the decedent's capacity was a source of concern as early as 2008, and certainly at a time contemporaneous with the execution of the propounded instrument. The court added that correspondence at that time between counsel and the attorney-drafter, purportedly acting on the decedent's behalf, revealed that the objected expressed concern about the decedent's capacity and attempted to have her counsel meet with the decedent for an assessment.
