| Matter of Turner |
| 2008 NY Slip Op 08385 [56 AD3d 863] |
| November 6, 2008 |
| Appellate Division, Third Department |
| In the Matter of the Estate of Mary C. Turner, Deceased. Mary KayTurner, as Executor of Mary C. Turner, Decedent, Respondent; Kerry A. Corrigan, Appellant,and Fallon Francazio, Respondent, et al., Respondent. |
—[*1] DerOhannesian & DerOhannesian, Albany (Jennifer C. Zegarelli of counsel), for Mary KayTurner, respondent. Cooper, Erving & Savage, L.L.P., Albany (Susan Carroll Picotte of counsel), for FallonFrancazio, respondent.
Spain, J.P. Appeal from an order of the Surrogate's Court of Albany County (Doyle, S.),entered November 9, 2007, which granted petitioner's motion for summary judgment dismissingrespondent Kerry A. Corrigan's objections to decedent's will.
At issue in this probate proceeding is the validity of decedent's last will and testament,executed in December 1999. In previous wills, decedent bequeathed her estate in equal shares toher daughters— petitioner and respondent Kerry A. Corrigan (hereinafterrespondent)—and her only son, John Turner. In the most recent will, decedent distributedher assets to her son, petitioner, petitioner's daughter, and petitioner's granddaughter, making noprovision for respondent or respondent's issue. After decedent's death in 2002, petitioner soughtto admit the will to probate and respondent objected. Petitioner moved for, and obtained,summary judgment. Respondent now appeals.
We affirm. Respondent does not challenge decedent's capacity, in general, to make a will, butasserts that the will was the product of an insane delusion or petitioner's undue influence. To setforth a prima facie case to invalidate the will based on insane delusion, it was incumbent uponrespondent to establish that decedent exhibited a "persistent[ ] [belief in] supposed facts, whichhave no real existence coupled with conduct taken upon the assumption of their existence" (Matter of Pilon, 9 AD3d 771, 773[2004] [internal quotation marks omitted]; see Matter of Honigman, 8 NY2d 244, 250[1960]). Notably, the belief " 'may be illogical or absurd, but it is not an insane delusion if therewas the slightest basis for the testator's belief' " (Matter of Pilon, 9 AD3d at 773, quotingPJI 7:49 [2003]).
Here, the basis of respondent's insane delusion claim is that decedent believed thatrespondent was stealing from her. When decedent's husband died in 1998, his will created acredit shelter trust of which decedent was the sole beneficiary and respondent was trustee. Astrustee, respondent was instructed to pay decedent "so much of the net income as [respondent]shall deem advisable," as well as discretionary payments from principal in order to maintaindecedent's standard of living. Prior to her execution of the new will, decedent received all theincome from the trust, but respondent declined to invade the principal as she believed her motherhad sufficient other resources. Decedent apparently did not fully appreciate the benefits ofcreating the trust and frequently expressed dissatisfaction with the loss of control over her latehusband's assets and with respondent's administration of the trust. Although respondent testifiedthat she endeavored to explain the trust to decedent, decedent persistently demanded greateraccess to the money and, as a result, the relationship between respondent and decedentdeteriorated.
In January 1999, decedent called a family meeting at her home with her children, ostensiblyto address the trust and her difficulties with respondent. According to respondent, decedentdemanded to know where her money was and how much there was. When respondent answeredthat the money was in trust and decedent would get it as she needed it, decedent accused her oflying and lunged at her across the room. When petitioner then said that respondent was stealingpetitioner's money, respondent left. Following this meeting, decedent no [*2]longer allowed respondent into her home or took telephone callsfrom her. However, she continued to have lunch with respondent once a week at the hospitalwhere respondent worked and decedent volunteered, where mother and daughter interactedsocially in a positive manner, but did not discuss finances.
Even crediting respondent's version of events as true—as we must in consideringpetitioner's motion for summary judgment (see Finch v County of Saratoga, 305 AD2d771, 771 [2003])—we agree with Surrogate's Court that respondent has alleged insufficientevidence to make a prima facie case of incapacity by insane delusion. The only evidenceproffered that decedent ever—much less persistently—accused respondent ofstealing is the deposition testimony of her former attorney who stated that decedent was confusedby the trust and "believed that [respondent] had taken her money." Respondent testified only thatpetitioner accused her of stealing in front of decedent, but not that decedent ever expressed thatbelief. Although this evidence could establish that decedent had developed an unfounded distrustin respondent and that she did not understand the nature of a trust, misunderstandings and unjustopinions—standing alone—are insufficient to establish insane delusion. Indeed, "ifthere are facts, however insufficient they may in reality be, from which a prejudiced, or a narrow,or a bigoted mind might derive a particular idea, or belief, it cannot be said that the mind isdiseased in that respect. The belief may be illogical, or preposterous, but it is not, therefore,evidence of insanity in the person" (Moritz v Moritz, 153 App Div 147, 150 [1912],affd 211 NY 580 [1914] [citations and internal quotation marks omitted]). Here, theapparently unfounded perception by decedent that respondent was mishandling—or evenmisappropriating—her money, even though persistent and contrary to the record evidencethat respondent was not guilty of any misconduct, could readily have stemmed from decedent'sfrustration over the loss of control of the assets, rather than some form of insanity. Indeed, wecannot say that decedent's failing opinion of respondent, even if illogical and unfair, is so devoidof reason to establish a basis upon which a finding could be made that decedent suffered from aninsane delusion (see Matter of Pilon, 9 AD3d at 773; cf. Matter of Honigman, 8NY2d at 250-251; Zielinski v Moczulski, 208 AD2d 275, 277-278 [1995], lvdismissed 86 NY2d 861 [1995], op vacated on rearg 87 NY2d 944 [1996]; Matterof Etoll, 30 AD2d 224, 228-229 [1968]).
Likewise, we agree that respondent did not proffer sufficient evidence which could establishthat decedent's will was the product of petitioner's undue influence. "To prove undue influence, arespondent must demonstrate that the decedent 'was actually constrained to act against [his orher] own free will and desire by identifying the motive, opportunity and acts allegedlyconstituting the influence, as well as when and where such acts occurred' " (Matter of Colverd, 52 AD3d 971,973 [2008], quoting Matter ofMurray, 49 AD3d 1003, 1005-1006 [2008]; see Matter of Malone, 46 AD3d 975, 977 [2007]). "Absentspecificity as to times, dates and places, '[c]onclusory allegations and speculation' are insufficientto raise an issue of fact as to acts of undue influence or fraud" (Matter of Colverd, 52AD3d at 973, quoting Matter of Young, 289 AD2d 725, 727 [2001]; see Matter of Fellows, 16 AD3d995, 996 [2005]).[*3]
Here, respondent's allegations, if credited, could establishthat petitioner had motive and opportunity to influence decedent's testamentary decisions, butthese allegations fail to demonstrate that any undue influence was actually asserted. By allaccounts, decedent was exceptionally independent up to and until the time she made her last will.She lived alone, drove her own automobile, was involved in her church, and continued to dovolunteer work. She directly addressed her wishes to her new attorney with respect to her will.Although decedent suffered a stroke in October 2000 at which point she went to live withpetitioner and, allegedly at times thereafter, petitioner excluded other family members fromseeing decedent, this occurred nearly a year after the will was executed. The only allegations ofundue influence by petitioner during the relevant time period are that petitioner accusedrespondent of stealing at the January 1999 family meeting, and that she recommended a newattorney for decedent, accompanied decedent to the attorney's office, and was present when thewill was executed. In our view, this circumstantial evidence supports conflicting inferences "suchthat a conclusion of undue influence may not be drawn" (Matter of Nofal, 35 AD3d 1132, 1135-1136 [2006]; see Matter of Greenwald, 47 AD3d1036, 1037-1038 [2008]; Matter ofFriedman, 26 AD3d 723, 725-726 [2006], lv denied 7 NY3d 711 [2006];Matter of Fellows, 16 AD3d at 997).
Lahtinen, Kane, Malone Jr. and Stein, JJ., concur. Ordered that the order is affirmed, withone bill of costs.