| Matter of Moles |
| 2011 NY Slip Op 08966 [90 AD3d 473] |
| Dcmbr 13, 2011 |
| Appellate Division, First Department |
| In the Matter of the Estate of Robin Moles, Deceased. ElsieMcCarthy et al., Respondents, v Christopher R. Ljungkull,Appellant. |
—[*1] Turret & Associates, P.C., Melville (Ira A. Turret of counsel), for respondents.
Decree, Surrogate's Court, New York County (Nora S. Anderson, S.), entered on or aboutMay 16, 2011, admitting the document dated December 27, 2007 to probate as the last will andtestament of Robin Moles, also known as Robin A. Moles, and bringing up for review an order,same court and Surrogate, entered on or about April 6, 2011, that granted proponents' motion forsummary judgment dismissing the objection to probate based, inter alia, on undue influence andlack of testamentary capacity, unanimously reversed, on the law, without costs, the decreevacated, and the motion denied.
This proceeding relates to the validity of a will the deceased, Robin A. Moles, executed onDecember 27, 2007, in which the deceased disinherited all of the beneficiaries of herlongstanding earlier will, including her nephew, objectant Christopher Ljungkull, and left herentire estate, worth in excess of $8 million, to her long-time companion and caregiver, petitionerElsie McCarthy. Ljungkull filed objections on the grounds that, inter alia, the deceased lackedtestamentary capacity and executed the will under undue influence.
Because there are issues of fact as to whether the decedent understood the consequences ofexecuting the 2007 will and whether she was under undue influence at the time she executed it,we reverse. Circumstantial evidence may demonstrate undue influence, provided that theevidence is substantial (Matter of Walther, 6 NY2d 49, 54 [1959]). Here, there isconsiderable circumstantial evidence. The facts and circumstances surrounding the will signing,the nature of the will, decedent's family relations, the condition of her health and mind, herdependency upon and subjection to the control of petitioner, the opportunity and disposition ofpetitioner to wield her influence over the decedent, and the acts and declarations of petitioner allraise questions as to whether or not there was undue influence over the decedent when sheexecuted the will (see Matter ofRyan, 34 AD3d 212, 213 [2006], lv denied 8 NY3d 804 [2007]). In particular, areport Adult Protective Services issued several months prior to the execution of the 2007 willfound that the decedent's judgment was impaired and recommended implementation of an article81 [*2]Guardianship to "safeguard" her. The attesting witnessesto the execution ceremony on December 27, 2007 were petitioner's friend, Neils Lauersen, andone of his former employees. Although the attorney who prepared the will was not present at theexecution, it is significant that Lauersen referred the attorney to the decedent whereas a differentattorney had prepared the decedent's prior will. "Where a will has been prepared by an attorneyassociated with a beneficiary, an explanation is called for, and it is a question of fact for the juryas to whether the proffered explanation is adequate" (Matter of Elmore, 42 AD2d 240,241 [1973] [internal citation omitted]).
Further, there is evidence that the decedent, both before and after the 2007 will signing,expressed her intent to maintain Ljungkull as the beneficiary of the bulk of her estate. In July2008, she confirmed her 1974 will in a discussion with her prior attorney at the same time thatshe signed a durable general power of attorney in favor of her financial advisor, as a matter oflaw replacing any former powers of attorney. Concur—Gonzalez, P.J., Friedman,Moskowitz, Acosta and Richter, JJ.