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IN RE: the ESTATE OF William G. LINICH, Also Known as Willam G. Linich and Billy Name, Deceased. Dagon J. James, Individually and as Executor of the Estate of William G. Linich, Also Known as Willam G. Linich and Billy Name, Deceased, Respondent; v. Susan Linich, Appellant.
OPINION AND ORDER
Appeal from an order of the Surrogate's Court of Ulster County (Sara W. McGinty, S.), entered January 6, 2021, which, among other things, granted petitioner's motion for summary judgment dismissing the objections to decedent's will.
William G. Linich (hereinafter decedent) was a photographer, filmmaker and lighting designer who was known for his work with the artist Andy Warhol. In 2011, decedent executed a will nominating respondent (his niece) as the executor and sole beneficiary of his estate. In 2015, decedent executed a new will naming petitioner (his agent) as the executor and sole beneficiary of his estate. When decedent died in 2016, respondent offered the 2011 will for probate. After letters testamentary were issued to respondent, petitioner sought to admit decedent's 2015 will to probate. Respondent filed objections, alleging that decedent lacked testamentary capacity and that the will was the product of undue influence and fraud. Following discovery, petitioner moved for summary judgment dismissing the objections. Surrogate's Court granted the motion, and this appeal by respondent ensued.
“Whether to dismiss a party's objections and admit the challenged will to probate is a matter committed to the sound discretion of Surrogate's Court and, absent an abuse of that discretion, the court's decision will not be disturbed” (Matter of Dralle, 192 A.D.3d 1239, 1240, 143 N.Y.S.3d 699 [3d Dept. 2021] [internal quotation marks and citations omitted]; see Matter of Shapiro, 100 A.D.3d 1242, 1243, 954 N.Y.S.2d 656 [3d Dept. 2012]). “Summary judgment is rare in a contested probate proceeding” (Matter of Shapiro, 65 A.D.3d 790, 791, 883 N.Y.S.2d 817 [3d Dept. 2009] [internal quotation marks and citations omitted]; see Matter of Castiglione, 40 A.D.3d 1227, 1229, 837 N.Y.S.2d 360 [3d Dept. 2007], lv denied 9 N.Y.3d 806, 842 N.Y.S.2d 782, 874 N.E.2d 749 ; Matter of Leach, 3 A.D.3d 763, 764, 772 N.Y.S.2d 100 [3d Dept. 2004]) and where, as here, “there is conflicting evidence or the possibility of drawing conflicting inferences from undisputed evidence,” summary judgment is inappropriate (Matter of Kumstar, 66 N.Y.2d 691, 692, 496 N.Y.S.2d 414, 487 N.E.2d 271 ; see Matter of Paigo, 53 A.D.3d 836, 839, 863 N.Y.S.2d 508 [3d Dept. 2008]; Matter of Williams, 13 A.D.3d 954, 955, 787 N.Y.S.2d 444 [3d Dept. 2004], lv denied 5 N.Y.3d 705, 801 N.Y.S.2d 2, 834 N.E.2d 781 ). Upon reviewing the record before us, we find that respondent has raised issues of material fact and, as such, must set aside Surrogate's Court's award of summary judgment to petitioner as to the objections based on testamentary capacity and undue influence.
First addressing the challenge to decedent's testamentary capacity, the burden rested with petitioner, as the moving party, to demonstrate that decedent “understood the consequences of executing the will, knew the nature and extent of the property being disposed of and knew the persons who were the natural objects of his bounty, and his relationship to them” (Matter of Prevratil, 121 A.D.3d 137, 140, 990 N.Y.S.2d 697 [3d Dept. 2014] [internal quotation marks, brackets and citation omitted]; see Matter of Giaquinto, 164 A.D.3d 1527, 1528, 83 N.Y.S.3d 728 [3d Dept. 2018], affd 32 N.Y.3d 1180, 94 N.Y.S.3d 244, 118 N.E.3d 906 ). Here, petitioner submitted, among other things, the 2015 will, along with the self-executing affidavits of the attesting witnesses, opining that decedent was of sound mind and memory and competent to make the will, creating “a presumption of testamentary capacity and prima facie evidence of the facts attested to” (Matter of Dralle, 192 A.D.3d at 1240, 143 N.Y.S.3d 699 [internal quotation marks and citation omitted]; see Matter of Prevratil, 121 A.D.3d at 140–141, 990 N.Y.S.2d 697). Petitioner also proffered the SCPA 1404 deposition transcripts of the attorney who drafted the will and supervised the will execution, and the subscribing witnesses. The attorney testified that based on her personal observations and interactions with decedent, he clearly, coherently and forcefully dictated the disposition of his assets, informed her who his family members were and advised her that he did not have any assets – specifically mentioning that his negatives were stolen and that the FBI was investigating the theft. The deposition testimony of the attesting witnesses affirmed that the normal policies for the will execution were followed, that decedent was well groomed and did not repeat himself, that there was nothing unusual about his behavior and that decedent was lucid and capable of signing the will. This proof satisfied petitioner's burden of establishing that decedent possessed testamentary capacity (see Matter of Dralle, 192 A.D.3d at 1240–1241, 143 N.Y.S.3d 699; Matter of Giaquinto, 164 A.D.3d at 1528–1529, 83 N.Y.S.3d 728; Matter of Prevratil, 121 A.D.3d at 141, 990 N.Y.S.2d 697).
With the burden shifted to respondent, she contends that decedent did not know the natural objects of his bounty as he was close to his family and did not name them in his will, that decedent did not know the extent of his property since he did not refer to his copyright and that there are issues of fact with regard to decedent's mental state at the time he made his 2015 will. In support of her contentions, respondent submitted the affidavits of her sister, her brother and two friends of decedent, as well as decedent's medical records. These witnesses stated that decedent was very close to his nieces and nephew, especially respondent. Decedent's closest friend affirmed that decedent never advised him that he was going to or that he had changed his will that named respondent as sole beneficiary. Moreover, decedent did not disclose to the attorney drafting the will what his assets were.
Most importantly, the witnesses affirmed that beginning in late 2014, decedent's personal hygiene declined, he acted unusual, was confused and forgetful. The medical records, spanning from the fall of 2014, including a contemporaneous record four days subsequent to the execution of the 2015 will, are replete with observations that decedent refused to care for himself resulting in numerous hospitalizations for hyperglycemia, hypoglycemia and urinary tract infections. The records contain multiple entries that decedent suffered from an altered mental state, confusion and was incoherent. This evidence is sufficient to raise an issue of fact regarding decedent's testamentary capacity (see Matter of Paigo, 53 A.D.3d at 839, 863 N.Y.S.2d 508; Matter of Ruparshek, 36 A.D.3d 998, 999–1000, 828 N.Y.S.2d 623 [3d Dept. 2007]; Matter of Brower, 4 A.D.3d 586, 589, 772 N.Y.S.2d 112 [3d Dept. 2004]).
Respondent also proffered sufficient evidence to raise an issue of fact as to undue influence. “To establish undue influence, the burden is on the objectant to show that the influencing party's actions are so pervasive that the will is actually that of the influencer, not that of the decedent” (Matter of Prevratil, 121 A.D.3d at 141–142, 990 N.Y.S.2d 697 [internal quotation marks and citations omitted]). “The elements of undue influence are motive, opportunity, and the actual exercise of that undue influence” (Matter of Nofal, 35 A.D.3d 1132, 1134, 826 N.Y.S.2d 828 [3d Dept. 2006] [internal quotation marks and citations omitted]; see Matter of Greenwald, 47 A.D.3d 1036, 1037, 849 N.Y.S.2d 346 [3d Dept. 2008]). “Where there is a confidential relationship between parties to a transaction, the burden shifts to the stronger party in such a relationship to prove by clear and convincing evidence that a transaction from which he or she benefitted was not occasioned by undue influence” (Matter of Mary, 202 A.D.3d 1418, 1420, 163 N.Y.S.3d 691 [3d Dept. 2022] [internal quotation marks, ellipsis and citations omitted]).
Here, a confidential relationship existed between decedent and petitioner. Petitioner was decedent's agent for a number of years and decedent was dependent upon petitioner to license and sell his artwork. Petitioner provided payments to decedent, resulting in decedent being financially dependent upon petitioner. Further, decedent placed trust in petitioner as evidenced by his disclosure to petitioner of his bank account information and computer password.
Much of the evidence submitted by respondent on the issue of testamentary capacity is also relevant to the issue of undue influence (see Matter of Nofal, 35 A.D.3d at 1135, 826 N.Y.S.2d 828). Respondent's witnesses all affirm that while residing at the assisted living facility, decedent was lethargic, frequently complained of being ill, slept a good deal, was unresponsive and was in a weakened state. Decedent's closest friend described him as being easily manipulated, and stated that he was especially vulnerable to petitioner, with whom he was infatuated. In presenting evidence demonstrating decedent's physical decline, coupled with his increasing confusion and personality changes, respondent has raised an issue as to whether decedent was unduly influenced by petitioner (see Matter of Nealon, 57 A.D.3d 1325, 1328, 870 N.Y.S.2d 578 [3d Dept. 2008]; Matter of Paigo, 53 A.D.3d at 839–840, 863 N.Y.S.2d 508; Matter of Johnson, 6 A.D.3d 859, 861, 775 N.Y.S.2d 107 [3d Dept. 2004]).
“To establish fraud, it must be shown that the proponent knowingly made a false statement that caused decedent to execute a will that disposed of his property in a manner different from the disposition he would have made in the absence of that statement” (Matter of Colverd, 52 A.D.3d 971, 973–974, 860 N.Y.S.2d 254 [3d Dept. 2008] [internal quotation marks and citations omitted]). Inasmuch as respondent has failed to specify the times, dates and places where fraud occurred, the conclusory and speculative allegations are insufficient to create any viable factual issues as to fraud. Accordingly, Surrogate's Court properly granted summary judgment as to respondent's fraud claim (see Matter of Walker, 80 A.D.3d 865, 868, 914 N.Y.S.2d 379 [3d Dept. 2011], lv denied 16 N.Y.3d 711, 2011 WL 1584878 ; Matter of Doody, 79 A.D.3d 1380, 1381, 912 N.Y.S.2d 792 [3d Dept. 2010]; Matter of Turner, 56 A.D.3d 863, 865–866, 866 N.Y.S.2d 429 [3d Dept. 2008]).
ORDERED that the order is modified, on the law, without costs, by reversing so much thereof as granted petitioner's motion for summary judgment dismissing the objections based on testamentary capacity and undue influence; motion denied to that extent; and, as so modified, affirmed.
Reynolds Fitzgerald, J.
Garry, P.J., Lynch, Aarons and Ceresia, JJ., concur.
Response sent, thank you
Docket No: 532820
Decided: January 19, 2023
Court: Supreme Court, Appellate Division, Third Department, New York.
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