| Matter of DelGatto |
| 2012 NY Slip Op 06140 [98 AD3d 975] |
| September 12, 2012 |
| Appellate Division, Second Department |
| In the Matter of the Estate of Pauline DelGatto, Deceased.Christopher Fasulo, Appellant; Nora Bradley, Respondent. |
—[*1] Nicolosi & Nicolosi, LLP, Manhasset, N.Y. (Vincent F. Nicolosi of counsel), forrespondent.
In a turnover proceeding pursuant to SCPA 2103 to recover certain real property on behalf ofa decedent's estate, the petitioner, as administrator c.t.a. of the decedent's estate, appeals from adecree of the Surrogate's Court, Kings County (Johnson, S.), dated June 21, 2011, which, upon ajury verdict, is in favor of Nora Bradley, inter alia, determining that title to the subject realproperty vested in Nora Bradley.
Ordered that the decree is affirmed, with costs.
The decedent, Pauline DelGatto, died on February 24, 2008, at the age of 92, leaving a dulyexecuted will dated May 14, 1985. At the time of the decedent's death, all legatees mentioned inthe will had predeceased her, and any right to her estate under the will had passed to twonephews who lived in Nevada, and five grandnieces and grandnephews.
Until December 2007 the decedent lived alone in her house in Bayside, Queens (hereinafterthe Bayside house). The respondent, Nora Bradley, lived in a nearby house on the same street.The parties stipulated that, as of 2007, Bradley had performed "many recurring household tasks"for the decedent, "including cooking, shopping, transportation, and bathing; and Nora Bradleyhad obtained and kept a key to Pauline DelGatto's house where she frequently slept overnight."Another neighbor also had a key and would also check in on the decedent once a day.
In December 2007 the decedent was hospitalized with a dislocated shoulder, and wasdischarged on January 4, 2008 to a rehabilitation facility. On or about January 9, 2008, while shewas at the rehabilitation facility, the decedent consulted with an attorney, who was asked byBradley to meet the decedent at the facility. The attorney had not previously dealt with either thedecedent or Bradley. According to the attorney, the decedent told him that she wanted to give herhouse to Bradley, and if Bradley predeceased her, to Bradley's daughter. The attorney informedthe decedent that there were three ways to accomplish that end: deeding the property to Bradley,changing her [*2]will, or setting up a trust. The decedent said thatshe preferred to set up a trust, because she would retain ownership of her house and, upon herdeath, Bradley would avoid probate costs. The attorney asked the decedent about family, and sheinformed him that her husband died in 1984, she had no children, and she had very little contactwith her family.
On January 16, 2008, the decedent was readmitted to the hospital with an infection. OnJanuary 17, 2008, she executed the trust document in dispute. Her signature was witnessed by theattorney and a social worker at the hospital. Pursuant to the trust instrument, Bradley wasappointed trustee and beneficiary in the event of the decedent's death. The decedent also executeda deed, conveying the Bayside house to the trust.
On April 2, 2008, following the decedent's death, the decedent's will was admitted toprobate, and Christopher Fasulo, a grandnephew of the decedent, was granted letters ofadministration c.t.a. Fasulo (hereinafter the petitioner) then petitioned pursuant to SCPA 2103 forthe turnover of the Bayside house, an asset of the decedent which had been transferred to thetrust. The petitioner alleged that the decedent executed the living trust while she was notmentally competent and was subjected to undue influence.
The petitioner moved for summary judgment on the petition, Bradley cross-moved forsummary judgment dismissing the petition, and the Surrogate's Court denied the respectivemotion and cross motion. The petitioner appealed from the denial of his motion, and this Courtaffirmed (see Matter of DelGatto,82 AD3d 1230 [2011]).
The matter proceeded to trial before a jury. At the conclusion of the trial, the jury wasinstructed that the petitioner bore the burden of proof both as to whether the decedent lackedmental capacity when she executed the trust and deed on January 17, 2008, and whether thedecedent's execution of the trust and deed was the result of Bradley's undue influence. The juryfound that the petitioner failed to sustain his burden of proof.
The general rule is that the burden of proof in a proceeding to set aside a trust instrument isupon the objecting party as to all issues, including the issue of mental competency (see Matterof Aronoff, 171 Misc 2d 172, 177 n 5 [1996]; Matter of Roth, 2006 NY Misc LEXIS5652 [Sur Ct, Suffolk County 2006]). A trustee has no obligation to demonstrate that the grantorwas competent when the trust instrument was executed; the burden on that issue is borne by theobjecting party, in this case, the petitioner (see Carew & Friedman, Surrogate'sPractice and Proceedings, NYLJ, Apr. 18, 2007 at 3, col 1; Matter of Aronoff, 171Misc 2d at 177 n 5). This principle is consistent with case law holding that competence to engagein a transaction is presumed, and the objecting party must prove lack of competence (seeJones v Jones, 137 NY 610, 613 [1893]; Matter of Nealon, 57 AD3d 1325, 1327 [2008]; Matter ofLee, 294 AD2d 366, 367 [2002]; Schlage v Barrett, 259 AD2d 691, 692 [1999];Matter of Waldron, 240 AD2d 507, 508 [1997]; Feiden v Feiden, 151 AD2d 889[1989]).
Here, the petitioner failed to meet his burden of establishing the decedent's lack of mentalcompetence. There was no evidence that the decedent had a history of mental impairment. Sheauthorized the attorney to prepare the trust instrument on January 9, 2008, and was hospitalizedwith an infection on January 16, 2008. The testimony of the trial witnesses indicated that onJanuary 17, 2008, when the decedent executed the documents, she was lucid and coherent andunderstood the transactions in issue. In support of his claim that the decedent was not competent,the petitioner relied upon the testimony of experts who did not know the decedent and nevertreated her, and based their testimony upon an examination of the decedent's medical records.Such testimony is considered speculative and entitled to little, if any, weight (see Matter ofTracy, 221 AD2d 643, 644 [1995]; Matter of Chiurazzi, 296 AD2d 406, 407 [2002]).
With respect to undue influence, the burden of proof generally lies with the party assertingundue influence (see Matter of Walther, 6 NY2d 49, 53 [1959]; Matter of Caruso, 70 AD3d 937[2010]). However, where there is a confidential relationship between the beneficiary and thegrantor, "[a]n inference of undue influence" arises which requires the beneficiary to comeforward with an explanation of the circumstances of the transaction (Matter of Neenan, 35 AD3d 475,476 [2006]; see [*3]Matter of Bach, 133 AD2d 455[1987]; Matter of Collins, 124 AD2d 48, 54 [1987]; see also Matter ofHenderson, 80 NY2d 388, 391 [1992]). In the absence of an explanation, the beneficiary hasthe burden of proving by clear and convincing evidence that the transaction was fair and freefrom undue influence (see Matter of Gordon v Bialystoker Ctr. & Bikur Cholim, 45NY2d 692 [1978]; Hearst v Hearst,50 AD3d 959 [2008]; Sepulveda v Aviles, 308 AD2d 1, 11 [2003]; Matter ofConnelly, 193 AD2d 602, 603 [1993]).
Here, the circumstances of the transfer and the decedent's reasons therefor were explained.The trust instrument and the deed were executed under the supervision of an attorney, withformalities similar to the execution of a will (see EPTL 7-1.7; cf. Matter ofConnelly, 193 AD2d at 603). Further, the decedent's immediate relatives had predeceasedher, and she had little contact with the beneficiaries of her will, while she had frequent contactwith her friend and neighbor Bradley, upon whom she relied for care and support. Under thesecircumstances, the ultimate burden of proof as to undue influence did not shift to Bradley (seeMatter of Neenan, 35 AD3d at 476; Matter of Collins, 124 AD2d at 54; 2 Harris,New York Estates: Probate, Administration and Litigation § 24:271 [6th ed]). Contrary tothe petitioner's contention, he presented no evidence of undue influence or other wrongdoing onthe part of Bradley (see Matter of Kumstar, 66 NY2d 691 [1985]; Matter ofWalther, 6 NY2d 49 [1959]).
The petitioner contends that the testimony of the attorney who prepared and supervised theexecution of the trust instrument and related documents was inadmissible by virtue of theattorney-client privilege (see CPLR 4503). However, the petitioner, as the decedent'spersonal representative, impliedly waived the privilege when he challenged the validity of thetrust and related documents (see Clark vClark, 93 AD3d 812, 816 [2012]; Matter of Maikowski, 24 AD3d 258 [2005]). Further, the testimonyof a social worker who witnessed the decedent's execution of the trust instrument was properlyadmitted pursuant to CPLR 4508, since her testimony did not relate to confidentialcommunications with the decedent in her professional capacity as a social worker (see Doe vPoe, 92 NY2d 864, 867 [1998]).
The petitioner's remaining contentions are either unpreserved for appellate review or withoutmerit. Dillon, J.P., Belen, Austin and Sgroi, JJ., concur.