| Matter of Alibrandi |
| 2013 NY Slip Op 01662 [104 AD3d 1175] |
| March 15, 2013 |
| Appellate Division, Fourth Department |
| In the Matter of the Estate of John G. Alibrandi, Deceased.Mary Beth Alibrandi, Respondent; Susette Wise, Appellant. |
—[*1] Thurston Law Office, P.C., Auburn (Earle E. Thurston of counsel), forpetitioner-respondent.
Appeal from a decree of the Surrogate's Court, Cayuga County (Mark H. Fandrich,S.), entered January 19, 2012. The decree, among other things, admitted decedent's willto probate.
It is hereby ordered that the decree so appealed from is unanimously affirmedwithout costs.
Memorandum: Preliminary letters testamentary were issued to petitioner, thedaughter of decedent, upon her petition seeking to probate decedent's will. Objectant,decedent's granddaughter, filed objections to the probate of the will, alleging, inter alia,that decedent lacked testamentary capacity and that the will was procured by undueinfluence on the part of petitioner. Surrogate's Court granted petitioner's motion forsummary judgment seeking dismissal of the objections and, inter alia, admitteddecedent's will to probate. We affirm.
"It is the indisputable rule in a will contest that '[t]he proponent has the burden ofproving that the testator possessed testamentary capacity and the [Surrogate] must look tothe following factors: (1) whether [ ]he understood the nature and consequences ofexecuting a will; (2) whether [ ]he knew the nature and extent of the property [ ]he wasdisposing of; and (3) whether [ ]he knew those who would be considered the naturalobjects of h[is] bounty and h[is] relations with them' " (Matter of Kumstar, 66NY2d 691, 692 [1985], rearg denied 67 NY2d 647 [1986]; see Matter of Castiglione, 40AD3d 1227, 1228 [2007], lv denied 9 NY3d 806 [2007]; Matter ofMcCloskey, 307 AD2d 737, 738 [2003], lv denied 100 NY2d 516 [2003]). "'Mere proof that the decedent suffered from old age, physical infirmity and. . . dementia when the will was executed is not necessarily inconsistentwith testamentary capacity and does not alone preclude a finding thereof, as theappropriate inquiry is whether the decedent was lucid and rational at the time the willwas made' " (Matter ofWilliams, 13 AD3d 954, 957 [2004], lv denied 5 NY3d 705 [2005]; see Matter of Makitra, 101AD3d 1579, 1580 [2012]; Matter of Murray, 49 AD3d 1003, 1004 [2008]). "Wherethere is direct evidence that the decedent possessed the understanding to make atestamentary disposition, even 'medical opinion evidence assumes a relatively minorimportance' " (Makitra, 101 AD3d at 1580).
Here, we conclude that, contrary to the contention of objectant, petitioner met herinitial burden of establishing decedent's testamentary capacity through the submission of,inter alia, the [*2]self-executing affidavits and the SCPA1404 hearing testimony of the two witnesses to the will's execution, decedent's longtimeattorney and a paralegal with the attorney's law firm; the report from a contemporaneousneurological examination of decedent; and the results of decedent's September 2006Mini-Mental State Examination (MMSE) (see Murray, 49 AD3d at 1004-1005;Castiglione, 40 AD3d at 1228; Williams, 13 AD3d at 956; seegenerally Matter of Frank, 249 AD2d 893, 894 [1998], lv denied 92 NY2d807 [1998]). The evidence offered by petitioner established that decedent's will was theculmination of several months of discussions among decedent, his financial advisors, andhis longtime attorney. The attorney stated in an affidavit that, throughout thosediscussions, decedent "appeared to be of sound mind [and] memory, fully aware of thevalue of his estate and the natural objects of his bounty, focused on and in completeunderstanding of what he was doing and that it was his intent to do so[, and]. . . in all respects fully competent to make a will." According to theattorney, decedent showed no signs of lack of cognitive ability or memory loss duringthat time period. The paralegal, who also had known decedent for a number of years,similarly stated in an affidavit that it appeared that decedent was of sound mind andcompetent when he executed the will, and that decedent understood what he was signing(see Williams, 13 AD3d at 956; see also Kumstar, 66 NY2d at 692;Castiglione, 40 AD3d at 1228).
Decedent lived independently and made his own legal and financial decisions fromthe time that the will was executed in November 2006 until March 2008, when he movedin with petitioner because of his declining eyesight. The patient history from decedent'sNovember 2006 neurological examination, which took place just weeks before the willwas executed, states that decedent took care of his own hygiene and, with assistance dueto his vision loss, his finances. In the will, decedent divided his estate equally among hisfour then-living children. According to the attorney, decedent did not include objectant, achild of decedent's predeceased daughter, in the will because he "had already made giftsto her." Indeed, objectant confirmed that she had "borrowed" money from decedent in thepast. Further, objectant testified that there was a breakdown in her relationship withdecedent approximately one year before he executed the will. Thus, the record reflectsthat decedent " 'knew those who would be considered the natural objects of h[is] bountyand h[is] relations with them' " (Kumstar, 66 NY2d at 692; seeCastiglione, 40 AD3d at 1228).
In opposition to the motion, objectant relied primarily upon decedent's Alzheimer'sdiagnosis, the November 2006 neurological examination, and his MMSE results, none ofwhich raises an issue of fact as to testamentary capacity (see Murray, 49 AD3d at1005; Castiglione, 40 AD3d at 1228; Williams, 13 AD3d at 956-957). Asnoted above, a mere diagnosis of Alzheimer's, dementia, or age-related memory deficitsis not necessarily inconsistent with testamentary capacity because the relevant inquiry iswhether the decedent was competent at the time the will was executed (seeMakitra, 101 AD3d at 1580; Murray, 49 AD3d at 1005; Williams, 13AD3d at 957). Although the report from the neurological exam indicates that the89-year-old decedent had been diagnosed with Alzheimer's and that his short-termmemory had reportedly declined over the last several years, the report also states thatdecedent communicated normally, was alert and oriented, spoke articulately and fluently,clearly conveyed ideas, exhibited good eye contact, and interacted appropriately (seeMurray, 49 AD3d at 1005; Williams, 13 AD3d at 956-957). There is nothingin the report to indicate that decedent was not rational, lucid, or competent. As for theMMSE, decedent scored two points above the cutoff for "mild" cognitive impairment.Thus, "having failed to provide evidentiary support for [objectant's] allegation thatdecedent was incompetent in [November 2006], Surrogate's Court properly grantedsummary judgment [on that issue] in petitioner's favor" (Murray, 49 AD3d at1005; see Castiglione, 40 AD3d at 1228).
We likewise conclude that the Surrogate properly granted that part of petitioner'smotion [*3]for summary judgment dismissing the undueinfluence objection. "A will contestant seeking to prove undue influence must show theexercise of a moral coercion, which restrained independent action and destroyed freeagency, or which, by importunity which could not be resisted, constrained the [decedent]to do that which was against [his] free will" (Makitra, 101 AD3d at 1581,quoting Kumstar, 66 NY2d at 693 [internal quotation marks omitted]). "Undueinfluence must be proved by evidence of a substantial nature . . . , e.g., byevidence identifying the motive, opportunity and acts allegedly constituting theinfluence, as well as when and where such acts occurred" (Makitra, 101 AD3d at1581 [internal quotation marks omitted]). "Mere speculation and conclusory allegations,without specificity as to precisely where and when the influence was actually exerted, areinsufficient to raise an issue of fact" (Matter of Walker, 80 AD3d 865, 867 [2011], lvdenied 16 NY3d 711 [2011]; see Matter of Capuano, 93 AD3d 666, 668 [2012]; see generally Matter ofGreenwald, 47 AD3d 1036, 1037-1038 [2008]). Here, even assuming,arguendo, that objectant identified a motive and opportunity for petitioner to exertinfluence upon decedent, we conclude that "there is no direct evidence that petitioner didanything to actually influence decedent's distribution of [his] assets" (Walker, 80AD3d at 868). The attorney testified that he never discussed decedent's will or estatematters with any family members during decedent's lifetime. Petitioner averred that she"had absolutely nothing to do with [decedent]'s legal and financial matters in particularas they pertain to his preparation, direction, and the execution of his [will]," and that shedid not discuss the will with decedent or the attorney prior to its execution. Petitionerwas not present when decedent executed the will, and both the attorney and the paralegalstated in their respective affidavits that he did not appear to be under any restraint orduress at the time. Finally, objectant last saw or spoke to decedent more than a yearbefore he executed the will, and she admitted at her deposition that she had no evidenceof undue influence, "just a feeling." Present—Smith, J.P., Peradotto, Lindley,Whalen and Martoche, JJ.