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Court Looks at Material Issues of Fact in Case



In this contested probate proceeding, the proponent, MP, moves for an order granting summary judgment pursuant to CPLR 3212, dismissing the objections filed by the objectant, RP, and admitting the propounded instrument to probate. RP opposes the motion on the ground that material issues of fact exist.

RP cross-moves for an order: (1) pursuant to SCPA 205, dismissing the probate proceeding on the ground that the decedent was not a domiciliary of Nassau County at the time of his death; (2) pursuant to Article 45 of the CPLR, prohibiting MP from introducing into evidence certain DVDs that MP alleges to be recordings of the decedent; and (3) pursuant to CPLR 4519, prohibiting MP and EP, who is the decedent’s ex-wife and the mother of MP and RP, from testifying at trial as to any statements allegedly made by the decedent. MP opposes the relief requested by RP.

The decedent, SP, died on June 27, 2005, survived by his wife, BP, and two sons from a former marriage, RP and MP.

SP and BP lived together in Florida from 1980 until July 16, 2003. There is evidence in the record that SP left BP, although there is no evidence of a legal separation or divorce decree.

On June 21, 2003, prior to his departure from Florida, SP executed a will prepared by his attorney in Florida. The will names RP as the executor and primary beneficiary and specifically makes no provision for MP. After leaving Florida, SP was placed by RP in The Mews, an assisted living facility in Greenwich, Connecticut. RP went on a family vacation two days later, on August 19, 2003.

On August 21, 2003, SP executed a Power of Attorney granting power of attorney to MP. On August 29, 2003, when he was ninety-one years old, SP executed the propounded will,1 prepared by an attorney MP obtained for SP. MP also moved SP out of The Mews and into the Nautilus Hotel which is in Nassau County, where he lived until his death in 2005. This later will names MP as the executor and primary beneficiary and specifically makes no provision for RP. RP objects to the probate of the August 29, 2003 will on the grounds that SP lacked testamentary capacity and that the will is the result of fraud and undue influence by MP and others acting in concert with him.

RP’s contention that SP was not a domiciliary of Nassau County at the time of his death is advanced for the first time in RP’s cross-motion made more than a year after RP filed objections to the probate of the propounded instrument. The court notes that RP’s own petition for the probate of the June 21, 2003 instrument that favors him identifies the decedent as a domiciliary of Nassau County. That petition was verified by RP on July 18, 2005; it has not been corrected or withdrawn.

Nevertheless, RP advances a number of arguments in support of his contention that SP never effectuated a change of domicile from Florida, where he had lived for thirty-seven years with his second wife, BP, until he left her and went first to Connecticut and then to New York. RP alleges the following: (1) BP continued to reside in Florida in the residence where she and SP has resided together; (2) SP’s treating physician told RP that, a few months after SP arrived at The Nautilus Hotel, he said he wanted to return to BP; (3) the propounded instrument, executed on August 29, 2003, states that SP is of the County of Miami-Dade, State of Florida, temporarily residing at The Mews, ½ Bolling Place, Greenwich, Connecticut; (4) the attorney-draftsman of that instrument testified at his deposition that he drafted it that way because he was told that [SP] was domiciled in Florida; (5) SP did not file tax returns in New York; and (6) SP lacked the mental capacity to effectuate a change in domicile.

In order to effectuate a change in domicile, there must be a union of residence in fact and an absolute and fixed intention to abandon the former and make the new locality a fixed and permanent home. A change in residence is insufficient. The party alleging a change in domicile has the burden to prove the change by clear and convincing evidence. In order to meet this burden, MP must show the decedent’s intention to effect a change of domicile from his acts, statements and conduct.

The record does not contain the usual evidence of an intent to change domicile. Since SP was in his nineties and legally blind by the time he left Florida in 2003, it is not surprising that he did not attempt to obtain a New York driver’s license. However, there is no evidence that SP changed his voter registration to New York or that he filed New York State tax returns. SP did establish a joint bank account with MP at a bank in Harrison, New York, and he commenced an action against RP in New York State, Supreme Court, wherein SP alleges his residence to be Nassau County.

There is no evidence in the record to support MP’s contention that SP was not mentally capable in September 2003 of changing his domicile to New York. However, MP has not met his burden of proving, by clear and convincing evidence, that SP intended to change his domicile to Nassau County, State of New York. A hearing will be held on the issue of SP’s domicile on November 5, 2007, at 9:30 a.m., prior to the commencement of the probate trial.

RP asks the court for a determination that MP and EP are disqualified under CPLR 4519 from offering evidence in support of MP’s motion for summary judgment and from testifying at trial with respect to transactions with SP. RP asserts that EP is barred because she does not consider herself to be divorced from SP because, although they were divorced in accordance with New York State law, they never obtained a divorce under Jewish law and because she and MP have assets in joint name.

CPLR 4519 provides, in pertinent part, that upon the trial of an action or the hearing upon the merits of a special proceeding, a party or a person interested in the event shall not be examined as a witness in his own behalf or interest against the executor, administrator or survivor of a deceased person concerning a personal transaction or communication between the witness and the deceased person except where the executor, administrator, [or] survivor is examined in his own behalf, or the testimony of the deceased person is given in evidence, concerning the same transaction or communication.

The Court of Appeals has held, emphatically, evidence excludable under the Dead Man’s Statute (CPLR 4519) should not be used to support summary judgment. While evidence excludable by CPLR 4519 may be used in opposition to a motion for summary judgment, it may not be used to support such a motion. MP is interested in the outcome of the probate proceeding. His sworn statements concerning transactions or communications with SP offered in support of the motion for summary judgment will not be considered. Any objections to MP’s testimony at trial will be considered upon proper objection made during the trial.

EP is not interested in the event. The test of the interest of a witness is whether the witness will gain or lose by the direct legal operation and effect of the judgment or that the record will be legal evidence for or against the witness in some other action.

Despite her protestations, the only evidence supports the fact that EP and SP were divorced for approximately thirty years prior to his death, and EP does not appear to have a direct interest in the outcome of the proceeding. EP’s sworn statements submitted in support of the motion for summary judgment are not barred under CPLR 4519. Whether she is competent to testify at trial will be considered by the court at that time upon a proper objection.

In support of his motion, MP has submitted EP’s affidavit, annexed to which as exhibits are three DVDs alleged to be audio-visual recordings of SP made at various times in and around 2003. MP claims that the statements allegedly made by SP in these recordings support the arguments MP advances in his motion for summary judgment. According to EP, the recordings were copied by a third-party from videotape to DVD. EP swears that the recordings are exactly what occurred during the periods of time taped and that the elderly man appearing on the tapes was SP. EP also swears to the approximate dates the recordings was made.

RP requests that the court not consider the material contained on the DVDs in connection with the motion for summary judgment and seeks an order prohibiting MP from introducing the DVDs at trial. RP argues that there are gaps in the DVDs that raise questions about their accuracy and timing, that MP will not be able to authenticate them at trial since he was the person who was the videographer, and that the communications contained on the DVDs among SP, MP, and EP should be barred under CPLR 4519.

The court has not viewed the DVDs. With respect to the motion for summary judgment, despite EP’s sworn statements, the court is not satisfied at this time as to the DVDs’ authenticity since EP did not have custody of them and was not involved in the transfer from cassette tapes to DVDs. MP also swears that nothing was been deleted from the videotapes, but does not offer any evidence from the company that converted the tapes to DVD format. The court will not consider the DVDs in connection with the motion for summary judgment. Whether the DVDs can be authenticated at trial and by whom is an issue to be determined at that time.

Summary judgment may be granted only when it is clear that no triable issue of fact exists. The court’s function on a motion for summary judgment is issue finding rather than issue determination, because issues of fact require a hearing for determination. Consequently, it is incumbent upon the moving party to make a prima facie showing that he is entitled to summary judgment as a matter of law. The papers submitted in connection with a motion for summary judgment are always viewed in the light most favorable to the non-moving party. If there is any doubt as to the existence of a triable issue, the motion must be denied.

If the moving party meets his burden, the party opposing the motion must produce evidentiary proof in admissible form sufficient to establish the existence of a material issue of fact that would require a trial. In doing so, the party opposing the motion must lay bare his proof. Mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient” to overcome a motion for summary judgment.

The proponent bears the burden of proving that the testator possessed testamentary capacity. The court looks at these factors: (1) whether she understood the nature and consequences of executing a will; (2) whether she knew the nature and extent of the property she was disposing of; and (3) whether she knew those who would be considered the natural object of her bounty and her relations with them. Moreover, sanity and testamentary capacity are presumed unless there is evidence to the contrary, the presumption being that a mind once sound continues to be so.

In support of the motion for summary judgment dismissing the objections, MP offers the deposition testimony of the attorney-draftsman, TA, who was then the head of the estate department at HD, and two of the three witnesses to the execution of the instrument. Mr. TA testified as to the decedent’s mental competence. He stated, There was no question in my mind the guy was totally competent. He knew exactly what he wanted and requested additional changes, then he was satisfied that this was the will he wanted, then we had him sign it. Another witness, TC, who then was a partner at the firm, testified that, prior to the execution ceremony, he observed Mr. TA read the entire will to SP because of his poor eyesight. When questioned about whether there was any problem with SP’s competence at the time he executed the will, Mr. TC responded, Absolutely not. Mr. TC states, in his affidavit, sworn to on July 9, 2007, that, it was clear to me that SP was rational, competent and had the capacity to completely understand and execute his Last Will and Testament on August 29, 2003.

There is additional evidence in the record supporting MP’s assertion that SP was competent in and around the time the will was executed. Messrs. TC and TA testified that SP was aware of his family members, and Mr. TC has attested to his conversation with SP involving some of his assets, which he claimed were taken by RP. AF, who is SP’s ex-brother-in-law, has submitted an affidavit in support of MP’s motion in which he states that he spoke by telephone to SP during that time period and at no time did he sound irrational or incompetent. The court finds that MP has made a prima facie case that SP had testamentary capacity at the time he executed the propounded instrument.

RP asserts that SP lacked testamentary capacity on August 29, 2003. He states that, in July and August 2003, he observed SP sitting on RP’s porch talking to himself. On one of those occasions, SP is alleged to have asked MP if he could see the angels with whom SP was speaking and whom he had named. RP also states that he once found his father sleeping on the bathroom floor and that he sometimes called RP “MP.” He states that he observed SP hallucinating “most days”, flicking the bridge of his nose until it bled and sleeping under a toilet when SP was at The Mews. RP has not submitted any medical records from that time period.

Thereafter, when SP resided at The Nautilus Hotel after the will was executed, RP found SP to be confused and agitated. RP has annexed to his opposition papers a note from the assistant director of The Nautilus Hotel to SP’s doctor advising him that SP is hallucinating & much more confused. He thinks the devil is telling him things. He was found also in the garage 2 nights ago. This note is dated January 15, 2004, more than four months after SP executed the will. RP also asserts that SP’s incompetence is demonstrated by his misapprehension that RP took his assets.

RP also relies on certain of SP’s medical records. While SP was a resident at The Nautilus Hotel, his treating physician was BK, M.D. Dr. BK’s notes from an examination of decedent on September 4 or 9, 2003 [the date is not clear], state, in part, that Dad depressed thinks has a chemical imbalance. Depression poor vision, glaucoma, legally blind. These notes appear to be from the first time Dr. BK examined SP, several days to more than a week after the will was executed. RP also offers Dr. BK’s records from July 6, 2004, which state that SP was “very agitated in dining room” and from October 20, of presumably 2004 since they are in sequence for that year, that note “dementia” for what appears to be the first time. There are notations in the records offered that SP was alert and oriented “x 3.”

Notably, there are no records for August 29, 2003. Notably, too, RP was away on vacation from August 19, 2003 and did not see SP for at least ten days prior to the date SP signed the propounded instrument.

A testator needs only a lucid interval of capacity to execute a valid will. This can occur even contemporaneously with an ongoing diagnosis of dementia, Matter of Friedman, 26 AD3d 723 (2006), or even incompetency, In re Walther. There is no medical evidence that SP was suffering from dementia or was incompetent on the date he executed the will. Even assuming that RP witnessed SP hallucinating at times prior to and after the date he signed the will, there is no evidence in the record that SP lacked testamentary capacity on August 29, 2003, the date of the will’s execution. Accordingly, MP’s motion for summary judgment is granted on the issue of capacity, and RP’s objection alleging that SP lacked testamentary capacity is dismissed.

The objectant has the burden of proof on the issue of undue influence. The three elements of undue influence have been described as motive, opportunity, and the actual exercise of undue influence. This classic formulation about what constitutes undue influence still resonates in the case law: it must be shown that the influence exercised amounted to a moral coercion, which restrained independent action and destroyed free agency. It must not be the promptings of affection; the desire of gratifying the wishes of another; the ties of attachment arising from consanguinity, or the memory of kind acts and friendly offices, but a coercion produced by importunity, or by a silent, resistless power which the strong will often exercises over the weak and infirm, and which could not be resisted, so that the motive was tantamount to force or fear.

Undue influence is rarely proven by direct evidence; rather, it is usually proven by circumstantial evidence. Among the factors that are considered are: (1) the testator’s physical and mental condition; (2) whether the attorney who drafted the will was the testator’s attorney; (3) whether the propounded instrument deviates from the testator’s prior testamentary pattern; (4) whether the person who allegedly wielded undue influence was in a position of trust and (5) whether the testator was isolated from the natural objects of his affection. With this in mind, it is also important to remember that in order to defeat a motion for summary judgment, the objectant must demonstrate that there is a genuine triable issue by allegations that are specific and detailed and substantiated by admissible evidence in the record. Mere conclusory assertions will not suffice.

A confidential relationship may be inferred if one party has disparate power over the other, such as an attorney-in-fact, guardian, clergyman or doctor, where a confidential relationship is said to exist as a matter of law. However, the law recognizes that a close family relationship counterbalances any contrary legal presumption. MP was the attorney-in-fact for SP at the time he executed the propounded instrument. However, the record does not support a finding that, as a matter of law, a confidential relationship existed between MP and SP.

Turning to the propounded will, Mr. TC knew MP for some time prior to meeting with SP. Mr. TC testified that MP had consulted with him on several legal matters. In mid-August 2003, MP contacted Mr. TC and asked him to meet with SP. Mr. TC agreed and went to The Mews in Connecticut, where SP was living at the time. According to Mr. TC, MP was present for parts of the meeting, which last for approximately one hour. SP asked Mr. TC to assist him with a number of legal matters, including terminating a joint bank account he had with RP at a bank in Connecticut, revoking a power-of-attorney he had given to RP and preparing a power-of-attorney with MP as attorney-in-fact. During the meeting, SP told Mr. TC that RP had taken some securities that belong to SP. He also told Mr. TC that he might want to change his will.

Mr. TC prepared a letter for SP’s signature removing RP from the bank account, prepared a revocation of the power-of-attorney and prepared a new power-of-attorney naming MP as attorney-in-fact. Mr. TC met with SP on August 21, 2003 to have SP sign the documents. MP was present for part of the meeting, as well as during the car trip with SP and Mr. TC from Connecticut to Port Chester, New York, where Mr. TC, who has a New York State notary license, notarized SP’s signature on these documents.

After receiving a call from SP, Mr. TC met alone with him on or about August 24, 2003. SP told Mr. TC that he was unhappy at The Mews where RP had moved him and was thinking of cutting RP out of his will. On August 27, 2003, SP called Mr. TC and requested that he prepare a new will for him leaving his entire estate to MP and nothing to RP.

Mr. TC states in his affidavit that he consulted with Mr. TA on August 28, 2003. That same day, Mr. TA drafted a new will, along with a summary, and faxed it to SP for his review.

On August 29, 2003, MP brought SP to HD’s office in White Plains, New York. Messrs. TC and TA reviewed the will’s provisions with SP. According to Mr. TC, SP requested that several changes be made to the will, and insisted on including additional language to the provision that disinherited RP, specifically, that RP “took other substantial assets of mine without my consent and has refused to return same,” an accusation that RP denies. MP was in the room for part of the time that SP discussed the will’s provisions with the attorneys, although Mr. TC states that they received all directions from SP. After the will was revised, SP executed it. MP was present during the execution ceremony.

The earlier June 21, 2003 instrument, which favors RP, was prepared by Murray Weil, Esq., a Florida attorney. RP has submitted Mr. Weil’s affidavit, sworn to on August 1, 2007. In it, Mr. Weil states that he first met SP sixty-one years ago and that he was a client of Mr. Weil’s late partner, Harold Shapiro, Esq. Mr. Weil represented SP on various legal matters from 1999 and also that they were in touch every few months by telephone.

Mr. Weil states that SP contacted him in the late spring of 2003 about changing his will. An earlier will executed by SP on May 7, 1999 left MP $29,000 and left the residuary of the estate to MP and RP, equally. SP advised Mr. Weil that he had provided MP with money during his adult years that was not repaid. SP also told Mr. Weil that RP called and visited him in Florida, but MP called only when he needed money. According to Mr. Weil, SP asked him to prepare a will that left everything to RP and nothing to MP. Mr. Weil prepared the instrument, which SP executed on June 21, 2003.

Because the testamentary scheme set forth in the August 29, 2003 will is so dramatically different than that in the June 21, 2003 will, coupled with MP’s involvement in engaging Mr. TC to assist SP and MP’s presence at certain meetings and during the will execution, the court finds that a question of fact exists as to whether the August 29, 2003 instrument is a product of undue influence. Accordingly, MP’s motion for summary judgment on that issue is denied.

The objectant also bears the burden of proving fraud. It must be shown that the proponent knowingly made a false statement that caused decedent to execute a will that disposed of [her] property in a manner different from the disposition [she] would have made in the absence of that statement. Moreover, a finding of fraud must be supported by clear and convincing evidence. In order to defeat the motion for summary judgment on the issue of fraud, the objectant must come forward with more than mere conclusory allegations and speculation. To defeat a motion for summary judgment, the objectant must produce sufficient evidence to show that there is an issue of fact to the effect that the proponent made a false statement or statements to the decedent to induce him to make this will, that the decedent believed the statement, and that without such statement or statements, the propounded will would not have been executed. A showing of motive and opportunity to mislead is insufficient; evidence of actual misrepresentation is necessary. There is no evidence in the record that MP or anyone at his behest actually made a fraudulent statement to SP that caused SP to execute the propounded will. Accordingly, MP’s motion for summary judgment on the issue of fraud is granted, and RP’s objection alleging fraud in the making and execution of the propounded instrument is dismissed.

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