| Matter of Greenwald |
| 2008 NY Slip Op 00140 [47 AD3d 1036] |
| January 10, 2008 |
| Appellate Division, Third Department |
| In the Matter of the Estate of Dorothy Greenwald, Deceased. CarolLaura Bender, as Executor of Dorothy Greenwald, Deceased, Respondent; Paul L. Greenwald,Appellant. |
—[*1] Marvin Newberg, Monticello, for respondent.
Peters, J. Appeal from an order of the Surrogate's Court of Sullivan County (Ledina, S.),entered February 15, 2007, which granted petitioner's motion for summary judgment dismissingrespondent's objections to decedent's will and codicil and admitted the will and codicil toprobate.
Dorothy Greenwald (hereinafter decedent) died December 31, 2004, predeceased by herhusband. She was survived by petitioner, who is her daughter, and her two sons, RichardGreenwald and respondent. It appears that decedent's 1999 will named all three children alternatecoexecutors and provided that the estate, valued at the time of decedent's death at over $1million, was to be equally divided among the three children if decedent's husband predeceasedher. A new will was made by decedent on December 16, 2000, solely naming petitioner as thealternative executor. A codicil to that will, dated January 4, 2001, added a no contest clause, aswell as a provision giving "all of the furniture, furnishings, and articles of personal use" locatedin decedent's home to petitioner. In no other way was the distribution scheme of the 1999 willaltered. Yet, when petitioner presented the will and codicil for probate, respondent filed [*2]objections alleging that they were procured by fraud and undueinfluence.[FN1]Following extensive discovery, which included depositions of Lyle Berlin and Allen Nimetz,witnesses to the will, William Rosen, the attorney who prepared the will and codicil, and JoanSumma, the receptionist who witnessed the execution of the codicil, petitioner moved forsummary judgment. Surrogate's Court granted that motion, prompting this appeal.[FN2]
Summary judgment may be awarded in a contested probate proceeding if a prima facie casefor probate is established and the objectant fails to raise a triable issue of fact (see Matter of Seelig, 13 AD3d776, 777 [2004], lv denied 4 NY3d 707 [2005]; Matter of Fairbairn, 9 AD3d 579, 580 [2004], lv denied 3NY3d 612 [2004]; Matter of Minervini, 297 AD2d 423, 424 [2002]).
Solely addressing the contention of undue influence, an objectant has to show that "the actsof the influencing party are . . . effectively mak[ing] it his [or her] will and not thewill of the decedent" (Matter of Klitgaard, 83 AD2d 651, 651 [1981]). Hence, " 'theinfluence exercised [must] amount[ ] to a moral coercion, which restrained independent actionand destroyed free agency, or which, by importunity which could not be resisted, constrained thetestator to do that which was against his [or her] free will and desire, but which he [or she] wasunable to refuse or too weak to resist' " (Matter of Fellows, 16 AD3d 995, 996 [2005], quotingChildren's Aid Socy. of City of N.Y. v Loveridge, 70 NY 387, 394 [1877]). To besuccessful, motive, opportunity and the actual exercise of undue influence must be established(see Matter of Fellows, 16 AD3d at 996).
Petitioner sustained her prima facie burden to establish her entitlement to an award ofsummary judgment. Her proffer consisted of the attestations and testimony from the witnesses tothe will and codicil, as well as the family attorney who drafted both documents, confirming thatdecedent was competent to make a will and not acting under any restraint. As the consistency ofthis testimony established that decedent appeared to be acting voluntarily, free of any duress orforce exerted upon her by anyone, the burden shifted to respondent to raise a triable issue of fact(see Matter of Seelig, 13 AD3d at 777; Matter of Fairbairn, 9 AD3d at 580;Matter of Minervini, 297 AD2d at 424).
The crux of respondent's contention is that decedent and her husband resided with petitionerfrom September 2000 to April 2001, the time frame in which the challenged documents weredrafted and executed. Respondent contends that petitioner must be found to have exercised undueinfluence over decedent because petitioner was the one who contacted the family's attorney toprepare both documents. Petitioner's testimony, as well as her substantial proffer, confirmed thatshe was merely the conduit to effectuate decedent's desires. Respondent proffered not a scintillaof evidence to establish any of the elements necessary to raise a triable issue of fact to support hisclaim of undue influence, especially considering the minor changes [*3]made to the distribution scheme in the prior will (see Matter ofWalther, 6 NY2d 49, 54 [1959]).
Mercure, J.P., Spain, Carpinello and Lahtinen, JJ., concur. Ordered that the order is affirmed,with costs.
Footnote 1: The objections never claimedthat either the will or the codicil was not properly executed or that decedent was not competent tomake them.
Footnote 2: Respondent abandoned theallegation that decedent's will and codicil were procured by fraud (see Costa v Callahan, 41 AD3d1111, 1117 [2007]).