| Matter of Walker |
| 2011 NY Slip Op 00082 [80 AD3d 865] |
| January 6, 2011 |
| Appellate Division, Third Department |
| In the Matter of the Estate of Susie M. Walker, Also Known asSusie Mae Walker, Deceased. Delanor A. Perry-Davis, Formerly Known as Delanor A. Perry, asExecutor of Susie M. Walker, Deceased, Appellant; Tommy B. Walker,Respondent. |
—[*1] James E. Konstanty, Oneonta, for respondent. Rosemarie Richards, Gilbertsville, guardian ad litem.
Peters, J. Appeal from an order of the Surrogate's Court of Delaware County (Lambert, S.),entered July 7, 2010, which denied petitioner's motion for summary judgment dismissingrespondent's objections to decedent's will.
Decedent died in June 2009 survived by her son, respondent, and her great-grandson,Anthony D. Walker. In an August 2007 will, decedent bequeathed her entire estate to hergrandson, who is the child of petitioner and respondent. Following her grandson's sudden death,decedent executed a new will, dated October 26, 2007, which named Walker as the solebeneficiary of her estate and specifically disinherited respondent. Petitioner, as executor ofdecedent's estate, offered the will for probate and respondent filed objections, alleging that the[*2]will was not properly executed, decedent lacked testamentarycapacity and the will was the product of undue influence and fraud. Following discovery,petitioner moved for summary judgment dismissing the objections. Surrogate's Court denied themotion and this appeal by petitioner ensued.
Surrogate's Court erred in failing to dismiss respondent's objection to the execution of thewill. The execution was supervised by the attorney who drafted the will, and the will wasaccompanied by a self-executing affidavit signed by the attesting witnesses. With this creating apresumption of due execution (seeMatter of Scaccia, 66 AD3d 1247, 1250-1251 [2009]; Matter of Pilon, 9 AD3d 771, 772[2004]), respondent's failure to challenge that showing warranted a dismissal of this objection.
Next addressing respondent's challenge to decedent's testamentary capacity, " 'the appropriateinquiry is whether the decedent was lucid and rational at the time the will was made' " (Matter of Williams, 13 AD3d 954,957 [2004], lv denied 5 NY3d 705 [2005], quoting Matter of Buchanan, 245AD2d 642, 644 [1997], lv dismissed 91 NY2d 957 [1998]; accord Matter of Paigo, 53 AD3d836, 838 [2008]). The burden of proving capacity rests with the proponent of the will, whomust demonstrate that decedent "understood the consequences of executing the will, knew thenature and extent of the property being disposed of and knew the persons who were the naturalobjects of her bounty, and her relationship to them" (Matter of Ruparshek, 36 AD3d 998, 999 [2007]; see Matter ofKumstar, 66 NY2d 691, 692 [1985]; Matter of Castiglione, 40 AD3d 1227, 1228 [2007], lvdenied 9 NY3d 806 [2007]).
Here, petitioner presented the affidavit of the attesting witnesses stating that decedent was ofsound mind and memory and was competent to make a will. This created a presumption oftestamentary capacity and prima facie evidence of the facts attested to (see Matter ofPaigo, 53 AD3d at 839; Matter ofFriedman, 26 AD3d 723, 724-725 [2006], lv denied 7 NY3d 711 [2006]).Petitioner also proffered the affirmation of June Johnston, the drafter of the will, who stated thatdecedent was alert and rational at the time she executed the will. Johnston further averred thatdecedent made it abundantly clear that she did not want to leave any of her property torespondent, instead wishing to leave her entire estate to Walker, and unequivocally confirmedthat the contents of the instrument reflected her express wishes. In this regard, record evidenceconfirms that decedent regularly expressed her dissatisfaction with respondent anddisappointment in the manner in which he treated her and, for that reason, did not want him toinherit anything. In addition, petitioner proffered the affidavit of a personal home aide who caredfor decedent from June 2008 until the time of her death. She stated that decedent, whilephysically infirm, was at all times mentally acute, engaged in various daily activities andmanaged her own financial affairs, including paying the bills and expenses for the property sheowned in Brooklyn.
In an attempt to demonstrate a lack of testamentary capacity, respondent points to Johnston'stestimony that, on the day decedent executed the will, she did not discuss decedent's assets withher or ascertain the exact amount of the property comprising her estate. Johnston explained,however, both in her testimony and affidavit, that she discussed decedent's assets with her onprior occasions, including during the preparation of a power of attorney approximately sixmonths earlier, at which time she was made aware that decedent's principal asset consisted of anapartment that she owned in Brooklyn and that decedent had limited funds in bank accounts.Contrary to respondent's contention, a decedent need only have a general, rather than a precise,[*3]knowledge of the assets in his or her estate (see Matter ofFish, 134 AD2d 44, 46 [1987]). Moreover, the fact that decedent handled her own financialaffairs during the year preceding her death supports an inference that she apprehended the size ofher estate (see Matter of Bush, 85 AD2d 887, 888 [1981]; compare Matter ofSlade, 106 AD2d 914, 915 [1984]). On this record, we find that no genuine question of factexists as to decedent's competence to execute the will.
Nor did respondent proffer sufficient evidence to raise an issue of fact on the issue of undueinfluence. "To prove undue influence, a respondent must demonstrate that the decedent 'wasactually constrained to act against [his (or her)] own free will and desire by identifying themotive, opportunity and acts allegedly constituting the influence, as well as when and where suchacts occurred' " (Matter of Colverd,52 AD3d 971, 973 [2008], quoting Matter of Murray, 49 AD3d 1003, 1005-1006 [2008]; see Matter of Malone, 46 AD3d975, 977 [2007]). Mere speculation and conclusory allegations, without specificity as toprecisely where and when the influence was actually exerted, are insufficient to raise an issue offact (see Matter of Colverd, 52 AD3d at 973; Matter of Young, 289 AD2d 725,726-727 [2001]).
Here, the crux of respondent's contention is that petitioner, who is respondent's ex-wife andresided with decedent at the time the will was drafted and executed, accompanied decedent to theattorney's office and was present when the will was signed.[FN*]However, there is no direct evidence that petitioner did anything to actually influence decedent'sdistribution of her assets, and respondent's speculative assertions are insufficient to raise an issueof fact (see Matter of Ruparshek, 36 AD3d at 1000; Matter of Fairbairn, 9 AD3d 579, 581 [2004], lv denied 3NY3d 612 [2004]). Moreover, where, as here, the circumstantial evidence supports conflictinginferences, a conclusion of undue influence may not be drawn (see Matter of Turner, 56 AD3d863, 866 [2008]; Matter ofNofal, 35 AD3d 1132, 1135-1136 [2006]).
Finally, inasmuch as respondent has neither alleged nor presented any evidence of aknowingly false statement made by petitioner, his fraud objection should also have beendismissed (see Matter of Paigo, 53 AD3d at 838; Matter of Colverd, 52 AD3d at973-974).
Mercure, J.P., Rose, Malone Jr. and Garry, JJ., concur. Ordered that the order is reversed, onthe law, with costs, motion granted and summary judgment awarded to petitioner dismissingrespondent's objections and admitting decedent's will to probate.
Footnote *: To the extent that respondentappears to argue that the undue influence was procured by Walker, this issue is not preserved forour review since respondent's verified objections to probate alleged only that the undue influencewas wielded by petitioner (see Matter of Murray, 49 AD3d at 1006). In any event,respondent has submitted no evidence to support any such claim.