| Matter of Murray |
| 2008 NY Slip Op 02068 [49 AD3d 1003] |
| March 13, 2008 |
| Appellate Division, Third Department |
| In the Matter of the Estate of Antoinette M. Murray, Deceased.Deborah A. Slezak, as Executor of Antoinette M. Murray, Deceased, Respondent; RichardFolmsbee et al., Appellants. |
—[*1] Tabner, Ryan & Keniry, L.L.P., Albany (William J. Keniry of counsel), forrespondent.
Peters, J. Appeal from an order of the Surrogate's Court of Saratoga County (Seibert, Jr., S.),entered April 6, 2007, which granted petitioner's motion for summary judgment dismissingrespondents' objections to decedent's will and admitted the will to probate.
Antoinette M. Murray (hereinafter decedent) died in October 2005 leaving a will dated April2002 which bequeathed $1,000 each to two churches, and the remainder of her estate to the ESFCollege Foundation, Inc. to create a scholarship fund named for herself and her predeceasedhusband. When petitioner, the attorney who drafted the will and presided over its execution,offered the will for probate, respondents, who are decedent's grandnieces and grandnephews,filed objections contending, among other things, that decedent lacked testamentary capacity andthat the will was procured by undue influence. Following discovery, petitioner moved forsummary judgment dismissing respondents' objections and admitting decedent's will to probate.Surrogate's Court granted petitioner's motion and respondents now appeal.[*2]
Respondents first contend that Surrogate's Court erred ingranting petitioner's motion for summary judgment because a question of fact exists as towhether decedent possessed the requisite testamentary capacity when she executed the will. Theinitial burden of proving competency to execute the will rested with petitioner, who had todemonstrate that decedent "understood the consequences of executing the will, knew the natureand extent of the property being disposed of and knew the persons who were the natural objectsof her bounty, and her relationship to them" (Matter of Ruparshek, 36 AD3d 998, 999 [2007]; see Matter of Castiglione, 40 AD3d1227, 1228 [2007], lv denied 9 NY3d 806 [2007]). Respondents concede thatSurrogate's Court properly found that petitioner met her initial evidentiary burden of proving thatdecedent possessed the requisite testamentary capacity. Such evidence included petitioner's ownaffirmation, in which she described in detail the events surrounding the drafting and signing ofdecedent's will, during which time she adjudged decedent to be competent, as well as theconcurrent work that petitioner performed in assisting decedent in decedent's capacity as theexecutor of her sister's estate, which included multiple financial transactions that were executedthrough June 2003. Petitioner also proffered the affidavits of subscribing witnesses Darcy Lewisand Bonnie Yetter, both of whom also testified that decedent was of sound mind and fullycompetent when she signed the subject will. Additionally, petitioner submitted the affidavit ofWilliam Busino, decedent's physician from 1983 until her death, who stated that there were nofacts in decedent's medical records from 2002 which suggested incompetence and that, upon hispersonal recollection, throughout the entirety of 2002, decedent was competent to execute awill.[FN*]The burden thus shifted to respondents to raise a genuine issue of fact (see Zuckerman v Cityof New York, 49 NY2d 557, 562 [1980]; Matter of Seelig, 13 AD3d 776, 777 [2004], lv denied 4NY3d 707 [2005]).
To meet their burden, respondents proffered medical records of decedent, as well asnumerous depositions from both party and nonparty witnesses. The medical records wereunavailing inasmuch as the earliest report from a neurologist, dated October 2003, suggested thatdecedent's dementia was first diagnosed around April 2003, a full year after the will wasexecuted. Similarly, the bulk of the deposition testimony suggested that decedent's dementia,while causing occasional episodes of confusion and forgetfulness prior to April 2002, acceleratedmarkedly from late 2002 onward. Proof that decedent suffered from old age and chronic,progressive senile dementia when the will was executed is not inconsistent with testamentarycapacity (see Matter of Williams, 13AD3d 954, 957 [2004], lv denied 5 NY3d 705 [2005]; Matter of Buchanan,245 AD2d 642, 644 [1997], lv dismissed 91 NY2d 957 [1998]). With respondents havingfailed to provide evidentiary support for their allegation that decedent was incompetent in April2002, Surrogate's Court properly granted summary judgment in petitioner's favor (see Matterof Castiglione, 40 AD3d at 1228; Matter of Seelig, 13 AD3d at 777).
Respondents further contend that Surrogate's Court erred in granting summary judgment onthe issue of whether decedent's will was the product of undue influence on the part of herhusband. To establish undue influence, respondents were required to demonstrate that decedentwas actually constrained to act against her own free will and desire by identifying the motive,opportunity and acts allegedly constituting the influence, as well as when and where such acts[*3]occurred (see Matter of Castiglione, 40 AD3d at1229; Matter of Ruparshek, 36 AD3d at 1000). Inasmuch as respondents' verifiedobjections to probate alleged that decedent was unduly influenced by petitioner and heremployees, while they argue now that such influence was wielded instead by her husband, thisissue is not properly preserved for our review (see Matter of Gates, 120 AD2d 890, 892[1986]; see also Matter of Grawe,32 AD3d 1309, 1310 [2006]). In any event, respondents' evidence is insufficient to supporttheir claim.
Mercure, J.P., Spain, Lahtinen and Malone Jr., JJ., concur. Ordered that the order is affirmed,without costs.
Footnote *: In fact, Busino stated that it wasnot until October 2004 that he ultimately determined that decedent was no longer competent toexecute legal documents, which he did in response to an inquiry by petitioner.