Gilbert R. Rella, et al., Petitioners-Appellants, v. Elizabeth Schiano, Objectant-Respondent. (2000)

Order, Surrogate's Court, Bronx County (Lee Holzman, S.), entered on or about February 1, 2000, which, insofar as appealed from, denied petitioners' motion for summary judgment dismissing respondent's objections to the subject will codicil claiming lack of testamentary capacity and undue influence, unanimously affirmed, without costs.

An issue of fact as to the decedent's testamentary capacity is raised by the sworn statements of one of the decedent's children, who is a doctor, and similar statements by the objectant, that when the decedent executed the codicil some five months before she died at the age of 89 (84 according to the proponents), she was in deteriorated physical, emotional and mental states, suffering from arteriosclerosis, often crying, depressed and forgetful, and was taking medications that have mind-altering side effects, including Valium, Darvon and Librax (see, Matter of Delmar, 243 N.Y. 7, 10-11, 152 N.E. 448).   An issue of fact as to whether the decedent was unduly influenced to execute the subject codicil disinheriting the objectant is raised by the objectant's sworn statements that some nine months before she had a vituperative argument with one of the proponents, a sister of hers, in the decedent's presence, that resulted in her banishment from the decedent's house, that the proponent thereafter blocked all efforts by the objectant to have any kind of relationship with the decedent, and that the decedent had no reason to disinherit the objectant except for this argument and the undue influence that the proponent thereafter exerted (see, Matter of Anna, 248 N.Y. 421, 424, 162 N.E. 473).

MEMORANDUM DECISION.