IN RE: Dolores Ormandy NEUMANN (2022)

Order, Surrogate's Court, New York County (Rita Mella, S.), entered March 30, 2022, which, insofar appealed from as limited by the briefs, granted petitioner's motion for summary judgment dismissing the objections based on lack of testamentary capacity and due execution but denied the motion as to undue influence, confidential relationship, and constructive fraud, unanimously affirmed, without costs.

The affidavits of the witnesses to the will, attesting to decedent's sound mind, memory, and understanding, “created a presumption of testamentary capacity and prima facie evidence of the facts attested to” (Matter of Giaquinto, 164 A.D.3d 1527, 1528, 83 N.Y.S.3d 728 [3d Dept. 2018] [internal quotation marks omitted], affd 32 N.Y.3d 1180, 94 N.Y.S.3d 244, 118 N.E.3d 906 [2019]).  In opposition, objectants failed to raise a triable issue of fact (see e.g. Matter of Katz, 103 A.D.3d 484, 485, 959 N.Y.S.2d 481 [1st Dept. 2013] [“a medical opinion ․ by a doctor who had never examined decedent and based her opinion solely on medical records” was insufficient to defeat a motion for summary judgment dismissing objections];  see also Matter of Coddington's, 281 App.Div. 143, 145, 118 N.Y.S.2d 525 [3d Dept. 1952], affd 307 N.Y. 181, 120 N.E.2d 777 [1954]).

Given decedent's presumptive testamentary capacity and therefore the lack of triable issues of fact concerning capacity, objectants' contention that although the requirements set forth in EPTL 3–2.1(a) were satisfied, summary judgment is premature is without merit.  Objectants' reliance upon (Matter of Elkan, 22 Misc.3d 1125[A], 2009 N.Y. Slip Op. 50280[U], 2009 WL 424801 [Sur. Ct., Bronx County], affd 84 A.D.3d 603, 923 N.Y.S.2d 495 [1st Dept. 2011], lv denied 17 N.Y.3d 709, 2011 WL 4089779 [2011]) is misplaced.

Objectants' contention that “something more” than formal execution was required due to decedent's infirmities is also without merit.  The record is silent as to any infirmities by decedent which would affect execution (Rollwagen v. Rollwagen, 63 N.Y. 504, 517 [1876];  see Matter of Creekmore's, 1 N.Y.2d 284, 152 N.Y.S.2d 449, 135 N.E.2d 193 [1956];  Matter of Dralle, 192 A.D.3d 1239, 1242, 143 N.Y.S.3d 699 [3d Dept. 2021]).

As stated by the court, “objectants ․ submitted sufficient evidence to raise a question as to whether [petitioner] could have and did assume such control of decedent's affairs during decedent's hospitalization and rehabilitation that she could be considered to be in a confidential relationship with her mother at the time the propounded instrument was executed.”  “A confidential relationship exists between two parties where they ․ deal on unequal terms due to one party's weakness, dependence or trust justifiably reposed upon the other[,] and unfair advantage is rendered probable” (Giaquinto, 164 A.D.3d at 1531, 83 N.Y.S.3d 728 [internal quotation marks and brackets omitted]).  “The existence of such a relationship will ordinarily be a question of fact” (Matter of Nealon, 104 A.D.3d 1088, 1089, 962 N.Y.S.2d 481 [3d Dept. 2013], affd 22 N.Y.3d 1045, 981 N.Y.S.2d 353, 4 N.E.3d 363 [2014];  see also e.g. Doheny v. Lacy, 168 N.Y. 213, 223, 61 N.E. 255 [1901]).