IN RE: Otto SPANGENBERG (1998)

In a contested probate proceeding, the objectants appeal from so much of an order of the Surrogate's Court, Dutchess County (Bernhard, S.), dated March 17, 1997, as granted that branch of the proponent's motion which was for summary judgment dismissing the objection to probate which alleged fraud and undue influence by the proponent, and the proponent cross-appeals from so much of the same order as denied that branch of her motion which was for summary judgment dismissing the objection to probate which alleged lack of testamentary capacity.

ORDERED that the order is affirmed insofar as appealed and cross-appealed from, without costs or disbursements.

 The Surrogate's Court properly granted summary judgment dismissing the objection to probate which alleged fraud and undue influence by the proponent.   The objectants failed to submit any evidence, beyond conclusory allegations and speculation, that undue influence was actually exercised over the decedent, or that the proponent made false statements which caused the decedent to dispose of his property in a manner different than he otherwise would have (see, Matter of Coniglio, 242 A.D.2d 901, 663 N.Y.S.2d 456;  Matter of Richtman, 221 A.D.2d 640, 641, 634 N.Y.S.2d 197).

 There is, however, an issue of fact concerning the decedent's testamentary capacity.   Around the time the will was executed, the decedent's medical records revealed a diagnosis of delirium, with symptoms of confusion, disorientation, and significant mental impairment.   Moreover, the will purportedly devised property which had already been transferred at the time the will was executed.   Under these circumstances, the court properly denied summary judgment dismissing the objection which alleged lack of testamentary capacity (see, Matter of Alberts, 87 A.D.2d 671, 448 N.Y.S.2d 829).

The proponent's remaining contention is without merit.

MEMORANDUM BY THE COURT.