IN RE: the Probate Proceeding for Gary E. Stone (2026)

Procedural History

The Court issued a conditional Decision and Order dated December 19, 2025  ¹ on Petitioner's motion for summary judgment, which in relevant part, granted a SCPA § 1404 examination of Todd Cafarelli, the attorney draftsperson, and thereafter allowed for each party "to submit an additional brief addressing any newly learned information" from said examination (emphasis added). On February 24, 2026, Petitioner submitted a supplemental brief with exhibit, and on February 25, 2026, Objectant filed a supplemental affirmation with exhibits. On March 4, 2026, Objectant additionally filed a supplemental brief.²

The Supplemental Submissions on the Summary Judgment Motion

As an initial matter, the Court must address Objectant's supplemental affirmation, the contents of which are entirely outside the limited scope of the supplemental brief allowed to each party. Objectant's affirmation fails to cite any newly learned information gleaned from Attorney Cafarelli's examination; rather it referenced and incorporates for the first time, numerous documents from 2009.³ The scope of the parties' supplemental briefs were specifically limited by the December 19, 2025 Order, and as with new arguments raised in reply for the first time, the Court disregards Objectant's supplemental affirmation (Jones v. Castlerick, LLC, 128 AD3d 1153 [3rd Dept. 2015] ["reply papers are intended to address contentions raised in opposition to the motion and not to introduce new arguments in support of the motion"] [internal citation omitted]). Similarly, Objectant's March 4, 2026 supplemental brief must be disregarded, as it relies entirely upon the Objectant's supplemental affirmation and the exhibits attached thereto. These purported 2009 estate planning documents have presumably been in the possession of Objectant since 2009 and are utterly inappropriate to introduce for the first time as the sole basis of Objectant's supplemental submission. As will be addressed infra, the Court does not condone Objectant's repeated piecemeal disclosure of "new" information - especially in light of her complete failure to engage in discovery.

It should be noted that sur-reply filings are not permitted under the CPLR or this Court's Local Rules, nor are they necessary for the limited and narrow issue remaining after the issuance of this Court's prior December 19, 2025 and February 2, 2026 Decisions and Orders, the determinations of which are incorporated herein. Therefore, the Court has not considered and rejects the dueling March 5, 2026 correspondence sent by counsel for both parties.

Notwithstanding the determination that the contents of the Objectant's submissions are beyond the scope permitted by the prior Order, the Court finds these submissions entirely unavailing. Most significantly, is that Objectant admits that she prepared the 2009 "simple short-form wills" that she wishes the Court to consider. This admission raises numerous potential questions regarding self-dealing and/or fiduciary relationship between Objectant and Decedent. Objectant also concedes that said 2009 wills were only "to remain in place until more formal estate planning documents could be drafted by counsel." This sworn statement is directly contrary to the assertion in Objectant's brief that Decedent had "carefully designed and consistently implemented [his] 2009 estate plan" as well as the two (2) proposals contained within her affirmation, as discussed below.⁴ Moreover, Objectant is not only the draftsperson of the purported 2009 will  ⁵ , but also the proposed executor, and the sole recipient of the Decedent's entire estate. This in and of itself raises an inference of undue influence (see, In re Putman's Will, 257 NY 140 [1931] and its progeny). The Putnam standard need not only apply when the will at issue is prepared by an attorney-draftsperson who is also a beneficiary (In re Will of Elmore, 42 AD2d 240 [3rd Dept. 1973] ["Where a will has been prepared by an attorney associated with a beneficiary, an explanation is called for."]). An inference of undue influence also "arises when a beneficiary under a will was in a confidential or fiduciary relationship with the testator and was involved in the drafting of the will" (Matter of Neenan, 35 AD3d 475 [2nd Dept. 2006] [citing Matter of Putnam, supra and Matter of Collins, 124 AD2d 48 [4th Dept. 1987]). In the instant matter, there is no dispute that, aside from being family, Objectant and Decedent shared a longstanding business relationship that arguably falls under such confidential or fiduciary relationship and would give rise to such an inference of undue influence.

The April 28, 2009 estate planning letter to the Decedent from attorney Marc R. Berman, of the law firm Cole Schotz, also raises several serious concerns — in addition to being unsigned. First, on its face, the letter indicates that Attorney Berman was not admitted to practice law in New York, yet was actively giving legal estate and tax planning advice related to matters wholly in New York.⁶ Secondly, while this letter advised Decedent to "immediately draft" documents since he did not have any will in place at the time, the letter also specifically explained the reasoning: "even if Bonnie was alive, because under New York intestate law a significant portion of your assets would pass to your children at your death which would give rise to [estate tax]." The purported 2009 wills drafted by Objectant effectively do the opposite of the planning advice purportedly solicited by the Decedent- by leaving the entirety of Decedent's estate to Objectant, it would actually maximize the exposure of the assets in excess of the cap to the estate tax to the detriment of the corpus of the estate.

This letter also discussed the possibility of bequeathing more to Objectant, or to all three (3) children equally with Objectant having voting control of the assets "after [Decedent] and [Petitioner] had passed away." This is evidence that Decedent had not made up his mind regarding his estate plan at that time. There is also no evidence in the record before the Court of any formal steps taken by Decedent to implement the plan outlined by Attorney Berman.

The June 5, 2009 estate planning letter from Attorney Kathryn von Matthiessen primarily focuses on reviewing Decedent's mother's trust, but does appear to contemplate Decedent leaving more assets to Objectant. Both estate planning letters also contemplated various trusts as part of the estate plan. Again, there is no evidence in the record that Decedent undertook any steps to implement the contemplated estate planning outlined in either letter.

In any event, the only facts demonstrated from the Objectant's supplemental affirmation and brief are that Decedent, for whatever reason, apparently chose not to implement any of the complex estate planning suggested by counsel therein. Importantly, there is nothing before this Court that indicates any of the discussed "long term" estate planning from either firm was undertaken by Decedent. More importantly, the only estate planning document before this Court, as a Petition, is the 2023 will, which is the subject of the instant proceeding.

Furthermore, although a court may consider a testator's deviation from a prior estate plan in a will contest, this does not constitute an independent objection. Without more, evidence of a deviation standing alone is insufficient to deny a later will from being admitted to probate as a testator has an absolute right to change his or her testamentary intent. As noted supra and as this Court has noted multiple times on the record and in prior decisions, the 2009 instrument has not been submitted for probate, thus the validity of the 2009 instrument has not been established. This proceeding is not the forum for litigating its status as a legal instrument or even as a prior testamentary plan  ⁷ . Thus, even when considered on the merits, Objectant's supplemental submissions fail to raise any issue of fact to defeat the instant motion.

Petitioner's Request for Sanctions and Legal Fees

This Court determined in its December 19, 2025 Decision and Order that there was not one scintilla of actual evidence offered by the Objectant to support her claims of undue influence and that the then current record was entirely devoid of triable issues of fact. As noted in the same prior decision, the Court did not reach a determination regarding bad faith concerning any party's conduct. Petitioner essentially considers the Objectant's pursuit of her objection to be frivolous in nature and requests an award of sanctions and fees. Even though after the prior extensions of discovery and the permitted additional § 1404 examination of the attorney draftsperson, not one item of evidence related to undue influence has been brought before the Court, the Court did permit the final § 1404 examination and allow the filing of a supplemental brief from both parties. As discussed supra, despite the content of Objectant's submissions being outside the scope of what was allowed, the Count cannot sanction that which was expressly permitted (the filing of supplemental briefs)..

Petitioner's supplemental brief renews her request for an award of costs and legal fees against Objectant as a sanction for her conduct. As already passed on, the Court declines to make such a finding or award attorney's fees in favor of the Petitioner now. However, as previously noted, the allegations surrounding Objectant's conduct with regard to discovery have not gone unnoticed by the Court, and bad faith conduct, including but not limited to, failure to comply with properly issued demands for discovery in the pending turnover proceeding (or future proceedings under this matter) may result in the imposition of sanctions, including, but not limited to preclusion at trial and an award of attorney's fees that encompasses any course of bad faith conduct since the inception of this estate matter.

For the reasons set forth in the Court's December 19, 2025 Decision and Order, and the reasons set forth above, Petitioner's Motion for Summary Judgment is granted in its entirety and the Petition seeking to admit the February 8, 2023 Will to probate is granted.

It is therefore,

ORDERED, ADJUDGED, AND DECREED that this Court's December 19, 2025 and February 2, 2026 Decisions and Orders are incorporated herein in their entirety; and it is further

ORDERED, ADJUDGED, AND DECREED that the remaining Verified Objection of Undue Influence is dismissed in its entirety; and it is further

ORDERED, ADJUDGED, AND DECREED that Decedent's February 8, 2023 Last Will and Testament be admitted to probate; and it is further

ORDERED, ADJUDGED, AND DECREED that a Decree and Letters Testamentary be issued to the Petitioner, duly named as the Executrix in said Will.

DATED: March 6, 2026

HON. JONATHAN G. SCHOPF

SARATOGA COUNTY SURROGATE

ENTERED

FOOTNOTES

1.   Objectant's January 20, 2026 motion to re-argue was denied by Order dated February 2, 2026.

2.   The Court's January 9, 2026 Scheduling Order required the supplemental briefs to be filed within "20 days after notification of receipt of transcripts." Such notification occurred on February 12, 2026, making this submission timely; however, the Court's records reflect receipt of the automatic courtesy copy of the transcript by the Court eight (8) days earlier on February 4, 2026.

3.   Presumably, had Objectant appropriately engaged in the discovery process, such documents would have already been part of the pending motion, or at least properly before it.

4.   The Court again notes that, to date, despite Objectant's purported possession of the same, neither the original copy of Decedent's purported 2009 will nor a petition for its probate have been filed with this Court.

5.   There is no presumption of due execution given that Objectant is not an attorney-draftsperson.

6.   An attorney registration search confirms this.

7.   The Court's December 19, 2025 Decision and Order determined that the Will lacked sufficient probative value to raise an issue of material fact, yet Objectant continues to argue the point, again outside of the scope of the permitted supplemental briefings.

Jonathan G. Schopf, S.