| Matter of Scher |
| 2010 NY Slip Op 04798 [74 AD3d 827] |
| June 1, 2010 |
| Appellate Division, Second Department |
| In the Matter of Harold Scher, Deceased. Mark Scher et al.,Respondents; Marc Dennis Scholnick, Appellant. |
—[*1] Bierman & Palitz, LLP, New York, N.Y. (Mark H. Bierman of counsel), forrespondents.
In a contested probate proceeding, the objectant, Marc Dennis Scholnick, ancillary executorof the estate of Leah Ruth Scher, appeals, as limited by his brief, from so much of an order of theSurrogate's Court, Kings County (Johnson, S.), dated September 9, 2008, as granted the crossmotion of the petitioners, Mark Scher and David Scher, for summary judgment dismissing theobjections to probate of a will, based on lack of testamentary capacity and undue influence, andadmitted the subject will to probate.
Ordered that the order is affirmed insofar as appealed from, with costs.
The decedent died on February 11, 2006, at the age of 89, survived by his spouse, Leah RuthScher (hereinafter Leah), and his two sons from a prior marriage (hereinafter the petitioners),who are the nominated co-executors appointed to administer the decedent's estate under a willdated July 12, 2005, which the petitioners propounded for probate. The subject will bequeathedto Leah an amount equal to her statutory elective share as the decedent's surviving spouse, andequally divided the residuary estate, along with the decedent's personal property, between histwo sons. Leah subsequently died, and the objectant, Marc Dennis Scholnick, was appointed theancillary executor of her estate.
The objectant filed objections to probate based on the decedent's alleged lack of testamentarycapacity and the allegation that the will was the product of the petitioners' exercise of fraud andundue influence or that of other persons acting in concert with them.
The petitioners established that the decedent had testamentary capacity at the time heexecuted the propounded will by demonstrating that he understood the nature and consequencesof making the will, the nature and extent of his property, and the natural objects of his bounty(see Matter of Kumstar, 66 NY2d 691, 692 [1985]; Matter of Malan, 56 AD3d 479 [2008]; Matter of Tuccio, 38 AD3d 791[2007]; Matter of Rosen, 291 AD2d 562 [2002]). In opposition to the petitioners' primafacie showing, the objectant failed to raise a triable issue of fact (see Matter of Kumstar,66 NY2d at 692; Matter of Malan, 56 [*2]AD3d 479[2008]; Matter of Tuccio, 38 AD3d791 [2007]; Matter of Rosen, 291 AD2d 562 [2002]).
In response to the petitioners' prima facie showing that the will was not the product of undueinfluence, the objectant failed to raise a triable issue of fact (see Matter of Eastman, 63 AD3d 738 [2009]; Matter of Klingman, 60 AD3d949 [2009]). We note that, even assuming that the petitioners had a confidential relationshipwith the decedent because they cared for him during the last six months of his life, suchrelationship is counterbalanced by the close family relationship which existed between thedecedent and the petitioners (see Matterof Zirinsky, 43 AD3d 946, 948 [2007]; Matter of Swain, 125 AD2d 574, 575[1986]). Prudenti, P.J., Angiolillo, Balkin and Chambers, JJ., concur.