| Matter of Coviello |
| 2008 NY Slip Op 09789 [57 AD3d 662] |
| December 9, 2008 |
| Appellate Division, Second Department |
| mIn the Matter of Pasquale D. Coviello, Also Known as Pat D. Coviello,Deceased. Michele Okin, Appellant; Isabel Cristina Coviello et al.,Respondents. |
—[*1] Levinson, Reineke & Ornstein, P.C., Central Valley, N.Y. (David L. Levinson and Justin E.Kimple of counsel), for respondent Isabel Cristina Coviello. Norman Shapiro, Middletown, N.Y., for respondent Lisa Coviello Gonzalez. Bull, Morreale & Judelson, P.C., Middletown, N.Y. (Charles A. Judelson of counsel), forrespondent Danielle Coviello.
In a contested probate proceeding, the proponent Michele Okin appeals from a decree of theSurrogate's Court, Orange County (Slobod, S.), entered April 25, 2007, which, upon a decision of thesame court dated March 27, 2007, made after a nonjury trial, inter alia, denied admission of thedecedent's will to probate on the grounds of fraud and undue influence.
Ordered that the decree is affirmed, with one bill of costs payable by the appellant personally.
The decedent Pasquale D. Coviello, also known as Pat D. Coviello, died unexpectedly on May 4,2004, at the age of 62, survived by his third wife, the objectant Isabel Cristina Coviello, from whom hewas separated at the time of his death, and his three daughters, the objectants Lisa Coviello Gonzalezand Danielle Coviello, and the petitioner Angela E. Coviello.[*2]
The petitioner offered for admission to probate a will which herfather's fiancÉe, the proponent Michele Okin, drafted in August or September 2003. Okin metthe decedent and his wife in 1998 when she drafted a postnuptial agreement for them. Although Okincontinued to represent the Coviellos in various estate-planning matters, she became intimately involvedwith the decedent at the end of 2002, and they began living together in January 2003.
The propounded will appointed Okin as the executor of the decedent's estate and bequeathed toher the "residue and remainder" of the estate in a sentence placed at the end of a list of specificbequests to the decedent's children and other family members. While the proponent held herself out asa tax and estate expert prior to her disbarment in June 2004, she drafted article VIII of the will toimpose the entire burden of the estate tax on the specific bequests, contrary to the decedent's statedintention for the entire estate to bear the taxes "across the board." Moreover, given that an estate tax inthe sum of $2 million was imposed on the estate subsequent to the decedent's death, the tax allocationvirtually nullified the specific bequests despite the decedent's intention to provide for his family as wellas Okin.
After a nine-day bench trial, the Surrogate issued comprehensive findings of fact and deniedadmission of the will to probate on the ground that the propounded will was the product of Okin's fraudand undue influence.
The credibility determinations of the Surrogate, who presided at the trial and heard all of thetestimony, are entitled to great weight on appeal (see Matter of Neary, 44 AD3d 949, 950 [2007]; Matter of Pellegrino, 30 AD3d 522[2006]). The Surrogate properly found that the proponent intentionally misrepresented the terms of thepropounded will, which caused the decedent to dispose of his property in a manner different from thatwhich he intended (cf. Matter of Gross, 242 AD2d 333, 333-334 [1997]; Matter ofSalvan, 132 AD2d 662 [1987]).
In light of our determination that the Surrogate properly denied probate of the propounded willbased on a finding of fraud, we need not address whether the will was the product of the proponent'sundue influence (cf. Matter of Rosen, 296 AD2d 504, 507 [2002]). Miller, J.P., Dickerson,Leventhal and Belen, JJ., concur.