X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.

Respondent, Lisa Marie Logan (Lisa), the adopted daughter of the decedent, moves pursuant to CPLR 3212, for summary judgment on the branch of the petition seeking to admit an instrument dated July 11, 2002 to probate. Petitioner, the Public Administrator of Queens County (Public Administrator) has filed an affirmation in support of the motion. Objectant, John Michael Logan (John), the adopted son of the decedent, has filed opposition to the motion. The facts of the matter are as follows: Decedent died on March 2, 2017, survived by her adopted children, Lisa and John. John filed an administration proceeding in this estate and objections were filed by Lisa (File No. 2017-3437). Lisa thereafter filed an instrument dated July 11, 2002 purported to be the last will and testament of the decedent (File No. 2017-3437/A) and subsequently filed a petition to probate this instrument (File No. 2017-3437/B). Since neither Lisa nor John would consent to the other serving as fiduciary and neither were able to a post bond, this Court appointed the Public Administrator as temporary administrator File 2017-3437/C). The major asset of the estate consisted of real property located in Astoria, New York and was sold at auction by the Public Administrator. By decisions and orders dated November 19, 2019 and February 3, 2020, this court judicially settled the account of the Public Administrator, letters of administration c.t.a which had issued to the public Administrator without opposition were revoked, leaving therefore only the issue of the validity of the purported will to be resolved. In this current petition to settle her account as temporary administrator, the Public Administrator seeks the probate of the subject instrument which nominates Lisa as executor and trustee and Ralph Aromanda (Decedent’s brother) as successor executor and succesor trustee. The ten page type-written and stapled instrument was executed under the supervision of an attorney. John’s objections allege that the propounded instrument is not decedent’s will, that it was not duly executed, and that it was the product of undue influence and fraud. Lisa, as the movant seeking summary judgment in a contested probate proceeding, must establish prima facie entitlement to judgment as a matter of law in the first instance (see e.g. Matter of Mele, 113 AD3d 858, 860 [2d Dept 2011]; Matter of Engelhardt, 88 AD3d 997 [2nd Dept. 2011]; Matter of Mooney, 74 AD3d 1073 [2d Dept 2010]). A party opposing a motion for summary judgment must lay bare its proof and present evidentiary facts sufficient to raise a triable issue of fact (see Zuckerman v. City of New York; 49 NY2d 557 [1980]; Morgan v. New York Tel., 220 AD2d 728 [2d Dept 1995]), and mere conclusions, conjecture or surmise are insufficient (see Zuckerman, supra at 562; Figueroa v. Gallager, 20 AD3d 385 [2d Dept 2005]). In particular, the petitioner must demonstrate that the instrument offered for probate was duly executed in accordance with the requisites of EPTL 3-2.1 (see Matter of Moskowitz, 116 AD3d 958 [2d Dept 2014]; Matter of Mele, supra at 858; Matter of Collins, 60 NY2d 466 [2d Dept 183]; Matter of Rosen, 291 AD2d 562 [2d Dept 2002]) and that the decedent possessed testamentary capacity at the time the instrument was executed (see Matter of Kumstar, 66 NY2d 691 [2d Dept 1985]; Matter of Mooney, 74 AD3d at 1073 [2d Dept 2010]; see also Matter of DiChiaro, 39 AD3d 751 [2d Dept 2007]). Once the requisite proof has been proffered by the movant, the objectant must produce evidentiary proof in admissible form to rebut the prima facie showing so as to establish the existence of a triable issue of fact (see Alvarez v. Prospect Hosp., 68 NY2d 320 at 324 [1986]; Gesuale v. Campanelli & Assoc. P.C., 126 AD3d 936 [2d Dept 2015]; Singer v Neri, 31 AD3d 738 [2d Dept 2006]). General conclusory and unsupported allegations are insufficient to defeat a motion for summary judgment (see William Iselin & Co. v. Landau, 71 NY2d 420, 425-426[1988]; see e.g. Matter of Neuman, 14 AD3d 567 [2d Dept 2005]). Summary judgment may be granted only where it is clear that no triable issue of material fact exists (see Alvarez v. Prospect Hosp., supra at 320; Phillips v. Joseph Kantor & Co., 31 NY2d 307 [1972]). Turning first to the branch of the motion seeking summary judgment and dismissing the objection of due execution, Lisa submits, inter alia, the instrument offered for probate together with a copy of the pleadings and the transcripts of the SCPA 1404 examinations of the drafting attorney and one of the attesting witnesses, and the SCPA 1406 self proving affidavits. The uncontradicted evidence submitted establishes that the attorney draftsperson also supervised the execution of the will. Accordingly, there is a presumption of regularity that the will was properly executed in all respects (see Matter of Moskowitz, 116 AD3d 958, 959 [2d Dept 2014]; Matter of Tuccio, 38 AD3d 791 [2d Dept 2007]; Matter of Weltz, 16 AD3d 428, 429 [2d Dept 2005]). The presumption of due execution and compliance with EPTL 3-2.1 also arises here since the propounded will contains an executed attestation clause and a self-proving affidavit (see Matter of Greene, 89 AD3d 941 [2d Dep 2011; Matter of Farrell, 84 AD3d 1374 [2d Dept 2011]; Matter of Mooney, supra at 1074). Upon the testimony and the documents submitted, Lisa has established prima facie entitlement to judgment as a matter of law dismissing the objection based upon lack of due execution by demonstrating that the subject will was duly executed pursuant to EPTL 3-2.1 (see Matter of Mele, supra; Matter of Engelhardt, supra; Matter of Mooney, supra). In opposition, objectant submits an answer and affidavit, wherein he merely speculates that decedent did not duly execute the instrument because both the drafter and one of the witnesses testified that “they did not have a memory of the will signing” and no one was able to identify who placed initials on the instrument. The failure of the attesting witnesses, however, to specifically recall all the details of an execution ceremony, standing alone, is insufficient to rebut the presumption of regularity in the execution of a will (Matter of Collins, supra; Matter of Greene, supra; Matter of Finocchio, 270 AD2d 418 [2d Dept 2000]). Despite EPTL 2-2.1 requiring only a signature on a will, objectant attempts to support his objection that the will was not duly executed on the basis that none of the witnesses could identify the initials placed on the bottom right-hand corner of the pages of the instrument. Additionally, objectant contends that since none of the witnesses had any recollection as to the initials on the instrument, then “someone else” other than the decedent executed the will. However, in direct contradiction to objectant’s allegation of undue influence, he attaches to his opposition an unsworn Letter of Opinion dated June 18, 2020 from Robert Baier, a handwriting expert wherein Mr. Baier states that there is a “strong probability” that the signature on the instrument is the signature of the decedent based upon his examination of various documents spanning decades. Initially, the Court notes the unsworn Letter of Opinion of Robert Baier does not constitute admissible evidence. On the other hand, this submission serves to confirm the lack of any independent proof, apart from objectant’s unsupported self-serving conclusory opinions, that the signature on the propounded instrument is not that of the decedent’s. Such unsupported allegations are insufficient to create a material issue of fact (Matter of Mooney, 74 AD3d 1073 [2d Dept 2010]; Matter of James, 17 AD3d 366 [2d Dept 2005]; Matter of Herman, 289 AD2d 239 [2d Dept 2001]). Accordingly, the Court finds that the objectant has failed to raise a triable issue of fact that the decedent did not duly execute her will in conformity with the requirements of EPTL 3-2.1 and that the branch of the motion for summary judgment dismissing the objection alleging the lack of due execution of the will is granted. Turning to the objection that the will was the product of undue influence, Lisa has made a prima facie showing of entitlement to summary judgment as a matter of law by submitting the SCPA 1404 testimony of the attorney and the witnesses together with their self-proving affidavit, which demonstrate that the decedent understood the terms of the will when it was executed and was free of restraint, and that the will was not the product of undue influence or fraud. For the will to be denied probate based upon undue influence, it must be shown 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 [or her] free will and desire, but which he [or she] was unable to refuse or too weak to resist” (Matter of Walther, 6 NY2d 49, 53 [1959]); see also Matter of Cianci, 165 AD3d 655 [2d Dept 2018]; Matter of Eastman, 63 AD3d 738, 740 [2009]; Matter of Zirinsky, 43 AD3d 946, 947-948 [2007]). The attorney further testified that the will was executed at his office under his supervision and direction. Attached to the instrument is the SCPA 1406 self-proving affidavit of the two attesting witnesses dated the same date. The attorney testified that he had a “long relationship” with decedent since his firm represented the decedent in an Article 81 proceeding concerning decedent’s mother which involved a trial and months of trial preparation. Counsel further stated that the decedent advised him that she wanted to disinherit her son because he had been arrested and incarcerated for some time and she “had no relationship with him.”1 The drafting attorney also testified that prior to the execution of the instrument offered for probate, he had several conversations, at intake and during his representation of her, concerning the document. In opposition, John states Lisa had “motive and opportunity” because she was the sole beneficiary and “she lived either a few blocks away or in decedent’s house during the two years before July 11, 2002.” He also states that Lisa hindered the free will of the decedent because the decedent was “in fear” of her daughter and that it was “made clear to the extended family” that it was decedent’s intentions to leave her property to her brother, Ralph Aromanda, and if her brother did not survive her, then to both of her children in equal shares. At a minimum, the objectant must make a showing of actual acts of undue influence, including time and place of the occurrence (Will of Winston Pearson, NYLJ, July 5, 2015 at 39 [Sur Ct, Kings County]; Estate of Osias Bender, NYLJ, April 12, 2010 at 39, col 6 [Sur Ct, Kings County]; Matter of Feller, 26 Misc 3d 1205[A] [Sur Ct., Monroe County 2010]). Here, the record is completely barren of any factual evidence concerning the relationship between Lisa and the decedent in the years prior to the will’s execution in 2002, such as any incidents or examples of actions by Lisa against decedent which would explain why terms of the will do not reflect the independent wishes and desires of the testator. Objectant offers absolutely no evidence that Lisa exerted any undue influence. Without a showing that undue influence was actually exerted, the mere speculation of a motive and opportunity is insufficient (see Matter of Romero, 137 AD3d 922 [2d Dept 2016]); Matter of Chiurazzi, 296 AD2d 406 [2d Dept 2002]). Further, John’s conclusory statement regarding alleged undue influence due to “fear” are woefully inadequate to establish a factual issue in this regard. The record is totally bereft of any evidence regarding Lisa’s actions toward decedent, much less any behavior which could remotely be classified as undue influence besides pure speculation and conjecture. Accordingly, petitioner is granted summary judgment dismissing the objection to the instrument based upon the grounds that it was procured by undue influence. Turning next to the objection alleging fraud, CPLR 3016 (b) requires that the circumstances underlying a cause of action based on fraud be stated “in detail”; see Scott v. Fields, 92 AD3d 666, 668 [2d Dept 2012]. In addition, CPLR 3106(b) requires a cause of action to recover damages for fraud requires allegations of (1) a false representation of fact, (2) knowledge of the falsity, (3) intent to induce reliance, (4) justifiable reliance, and (5) damages (see, Pace v. Raisman & Assoc., Esqs., LLP, 95 AD3d 1185 [2d Dept 2012]; Selechnik v. Law Off. of Howard R. Birnbach, 82 AD3d 1077 [2d Dept 2011]; Eurycleia Partners, LP v. Seward & Kissel, LLP, 12 NY3d 553, 559, 910 NE2d 976, 883 NYS2d 147 [2009]). In order to state a claim for fraud, objectants must demonstrate that a person knowingly made a false statement to decedent to induce her to make a will disposing of her property in a manner contrary to that she would have made in the absence of that statement (see Matter of Rottkamp, 95 AD3d 1338, 1339-1340 [2d Dept 2012]; Matter of Marin, 82AD3d 982 92d Dept 2011]; Matter of Eastman, 63 AD3d 738, 740 [2d Dept 2009]. John has not identified any knowingly false representation intended to cause decedent to change her testamentary plan that was made by Lisa, or by anyone else, which induced decedent to make bequests disposing of her property in the propounded will in a manner any differently than she would have otherwise. The only contention by John in this regard is that the instrument was obtained by fraud because he “has never seen his mother print her initials” and that his mother “always signed her initials in the cursive script form”. He further states that Lisa “was the actual individual, posing as her mother, to sign” the purported instrument. Accordingly, objectant has failed to raise a triable issue of fact as to fraud and the objections based upon that ground are dismissed. The branch of the motion for summary judgment dismissing the objection based upon fraud is granted. All objections having been dismissed, the petition is granted and the will dated July 11, 2002 is admitted to probate. Settle Decree. Dated: July 26, 2021

 
Reprints & Licensing
Mentioned in a Law.com story?

License our industry-leading legal content to extend your thought leadership and build your brand.

More From ALM

Premium Subscription

With this subscription you will receive unlimited access to high quality, online, on-demand premium content from well-respected faculty in the legal industry. This is perfect for attorneys licensed in multiple jurisdictions or for attorneys that have fulfilled their CLE requirement but need to access resourceful information for their practice areas.
View Now

Team Accounts

Our Team Account subscription service is for legal teams of four or more attorneys. Each attorney is granted unlimited access to high quality, on-demand premium content from well-respected faculty in the legal industry along with administrative access to easily manage CLE for the entire team.
View Now

Bundle Subscriptions

Gain access to some of the most knowledgeable and experienced attorneys with our 2 bundle options! Our Compliance bundles are curated by CLE Counselors and include current legal topics and challenges within the industry. Our second option allows you to build your bundle and strategically select the content that pertains to your needs. Both options are priced the same.
View Now

New York Legal Awards 2021

October 13, 2021
New York, NY

The New York Law Journal honors attorneys and judges who have made a remarkable difference in the legal profession in New York.


Register

General Counsel Conference East 2021

September 22, 2021 - September 23, 2021
New York, NY

GCC East addresses General Counsel trends in regulatory, data protection, tech management, legal operations, and leadership.


Register

New Jersey Legal Awards 2021

September 23, 2021
Virtual, NJ

New Jersey Law Journal honors lawyers leaving a mark on the legal community in New Jersey with their dedication to the profession.


Register

UNIVERSITY/ LIFE SCIENCES/TECHNOLOGY TRANSACTIONS

Boston, Massachusetts, United States

Premier research university seeks 7+ year attorney with strong background drafting and negotiating complex contracts to partner with busines...


Apply Now ›

Partner

Boston, Massachusetts, United States

Prominent Boston firm seeks partners with moderate billings for a variety of practice groups. Outstanding opportunity to join a collegial fi...


Apply Now ›

Commercial Real Estate Transactional Associate

Boston, Massachusetts, United States

Large firm with Boston office seeks associate with three to seven years experience to join its real estate practice group. Qualified candid...


Apply Now ›

JAVERBAUM WURGAFT HICKS

09/20/2021
NJLJ Web

JAVERBAUM WURGAFT HICKS mourn the passing of our Co-Founding Partner, collegue, and friend.


View Announcement ›

BARTON GILMAN LLP

09/14/2021
CLT Web

Barton Gilman Expands Into Connecticut


View Announcement ›

BARTON GILMAN LLP

09/14/2021
TLI Web

Barton Gilman LLP is excited to announce that its expansion into Philadelphia


View Announcement ›