| Matter of Colverd |
| 2008 NY Slip Op 05407 [52 AD3d 971] |
| June 12, 2008 |
| Appellate Division, Third Department |
| In the Matter of the Estate of Roy Reginald Colverd, Deceased. SharonM. Michael, as Executor of Roy Reginald Colverd, Deceased, Respondent; Jo-Anne Colverd et al.,Appellants, et al., Respondent. |
—[*1] Lorman Law Firm, P.C., Amsterdam (William Lorman of counsel), for respondent.
Spain, J. Appeal from an order of the Surrogate's Court of Fulton County (Giardino, S.), enteredNovember 18, 2005, which granted petitioner's motion for summary judgment dismissing the objectionsto decedent's will and admitted the will to probate.
Decedent died in 2000. Thereafter, petitioner—decedent's unmarried companion of nearly30 years—commenced this proceeding in Surrogate's Court, as named executor, seekingprobate of decedent's will. Three of decedent's four children submitted objections to probate claimingundue influence and fraud by petitioner; one of his daughters, respondent Donna C. Egnoto, initiallyfiled one set of objections and, thereafter, a second set of objections was filed by another daughter,respondent Jo-Anne L. Colverd, and decedent's son, respondent Andrew Colverd. After a substantialamount of discovery, petitioner successfully moved for summary judgment dismissing the objections andadmitting decedent's will to probate. Only Jo-Anne Colverd and Andrew Colverd (hereinaftercollectively referred to as respondents) have now appealed.[*2]
Rejecting respondents' contentions that there are materialissues of fact as to whether decedent lacked testamentary capacity, was unduly influenced by petitioner,and/or was defrauded by petitioner, we affirm. Whether to dismiss objections and admit a will toprobate is within the sound discretion of Surrogate's Court, and the court's decision will be upheldabsent a showing of an abuse of discretion (see Matter of Malone, 46 AD3d 975, 978 [2007];Matter of Young, 289 AD2d 725, 726 [2001]). Notably, summary judgment in a contestedprobate proceeding, while rare, is proper when the petitioner sufficiently establishes a prima facie casefor probate and the respondent fails to raise any genuine issues of fact (see Matter ofCastiglione, 40 AD3d 1227, 1229 [2007], lv denied 9 NY3d 806 [2007]; Matter ofFairbairn, 9 AD3d 579, 580 [2004], lv denied 3 NY3d 612 [2004]; Matter ofYoung, 289 AD2d at 726).
Initially, respondents' claim that decedent lacked testamentary capacity is not sufficiently raised intheir objections and, therefore, is unpreserved for appeal; their objections suggest claims of undueinfluence and fraud, not testamentary capacity (see Matter of Rockefeller, 44 AD3d 1170,1172 n [2007]). In any event, the record amply reflects that petitioner established—primarilythrough the uncontroverted deposition testimony of the attorney who drew and witnessed thewill—a prima facie case that at the time he executed his will, decedent was of sound mind andmemory, he was aware of the nature and extent of his property and he knew the persons who were thenatural objects of his bounty (see Matter of Castiglione, 40 AD3d at 1228; Matter ofFriedman, 26 AD3d 723, 724-725 [2006], lv denied 7 NY3d 711 [2006]). Inopposition, respondents provided only bare assertions of decedent's illiteracy and that he was heavilymedicated on the day the will was executed. These wholly conclusory allegations failed to sufficientlyraise a triable issue of material fact on the record before us (see Matter of Friedman, 26 AD3dat 725; Matter of Clapper, 279 AD2d 730, 731-732 [2001]).
Next, we turn to respondents' claim of undue influence, which, like fraud—and in contrast totestamentary capacity—is respondents' ultimate burden to prove (see Matter ofClapper, 279 AD2d at 732). To prove undue influence, a respondent must demonstrate that thedecedent "was actually constrained to act against [his] own free will and desire by identifying themotive, opportunity and acts allegedly constituting the influence, as well as when and where such actsoccurred" (Matter of Murray, 49 AD3d 1003, 1005-1006 [2008]; see Matter ofCastiglione, 40 AD3d at 1229). Absent specificity as to times, dates and places, "[c]onclusoryallegations and speculation" are insufficient to raise an issue of fact as to acts of undue influence or fraud(Matter of Young, 289 AD2d at 727; see Matter of Malone, 46 AD3d at 977-978).
While the record reflects that petitioner may have had the opportunity to exert undue influence ondecedent, respondents have not alleged sufficient facts which, even if credited, could prove that anyundue influence was exerted. First, petitioner demonstrated that she lacked motive to influencedecedent's testamentary decisions. Petitioner owned almost everything in her own name, including thereal property, a truck, an automobile, a recreational vehicle, horses and the dog kennel/breedingbusiness. Most of petitioner's property had been acquired through an inheritance from her father'sestate in 1997. In contrast, the extent of decedent's estate was relatively small, the main asset being hisco-ownership of a number of the dogs. Further, petitioner did not participate in the drafting ofdecedent's will and, given her long and loving relationship with decedent and the admitted lack ofrelationship between decedent and two of his children, the disposition of his estate—as directedin his will—is entirely rational. In response, respondents failed to allege facts which woulddemonstrate that decedent's actions and decisions were not voluntary. Indeed, there is no evidence inthe record of any specific instance showing that petitioner exerted any undue influence over decedent.Thus, Surrogate's Court properly [*3]determined that respondentsfailed—in response to petitioner's motion—to allege facts which could establish thatpetitioner unduly influenced decedent (see Matter of Greenwald, 47 AD3d 1036, 1037-1038[2008]; Matter of Castiglione, 40 AD3d at 1229).
"To establish fraud, it must be shown that the 'proponent knowingly made a false statement thatcaused decedent to execute a will that disposed of his property in a manner different from thedisposition he would have made in the absence of that statement' " (Matter of Clapper, 279AD2d at 732, quoting Matter of Coniglio, 242 AD2d 901, 902 [1997] [citation omitted];accord Matter of Young, 289 AD2d at 727). Here, it is alleged that petitioner falsely induceddecedent to leave his estate to her by promising him that she would execute her will such that she wouldleave the bulk of her estate to the two children who would inherit under decedent's will, if petitioner hadpredeceased decedent. However, in her will, executed on the same date as decedent's,petitioner—in fact—leaves her estate as she promised (see Matter of Young, 289AD2d at 727; Matter of Clapper, 279 AD2d at 732). Thus, because respondents also failed tomeet their burden to assert facts sufficient to establish fraud, Surrogate's Court did not abuse itsdiscretion in granting petitioner's motion for summary judgment dismissing the objections (seeMatter of Castiglione, 40 AD3d at 1229).
We have considered respondents' remaining contentions and find them to be without merit.
Mercure, J.P., Lahtinen, Kane and Malone Jr., JJ., concur. Ordered that the order is affirmed, withcosts.