Petitioner Frank G. Pavelock, Jr. moves for summary judgment dismissing the objections to probate filed by Margaret McKeon and Peter Pavelock and for judgment admitting to probate an instrument purporting to be the decedent's last will and testament dated March 11, 2006. Objectants cross-move for summary judgment dismissing the probate petition.

Both of the witnesses to the propounded will were deposed pursuant to SCPA §1404. In addition, the following individuals were deposed: Frank Pavelock, Jr., the proponent and a [*2]beneficiary under the propounded instrument; Elaine Hannon, a notary who witnessed the signing of the instrument; Jacqueline Khan, proponent's sister-in-law; Roger Pavelock, a beneficiary under the propounded instrument; Margaret McKeon, objectant; and, Peter R. Pavelock, objectant.

The proponent has offered a single page instrument which reads, in its entirety:

"State of New York

County of Dutchess

Town of Poughkeepsie

I, Frank G. Pavelock, Sr., being of sound mind, memory and having considered the uncertainties of life, do hereby declare that this is my last will and testament.

I hereby revoke all prior last will and testaments and codicils made by me. I direct that upon my death, my body is to be released to The Libby Funeral Home, Inc., and that all funeral expenses are paid by my estate. I also request a military funeral.

I hereby give, devise and bequeath my real property located at 20 Wilson Street, Beacon, New York together with all contents to my son, Frank G. Pavelock Jr. and my son, Roger Pavelock to be theirs absolutely and forever. I give, devise and bequeath the remainder of my estate to my son, Frank G. Pavelock, Jr. to be his absolutely and forever."

The instrument is dated March 11, 2006 and is witnessed by John Peters, Jr. and Kevin Gemmell. The notary, Elaine Hannon, indicates that the document was "subscribed and sworn before (her)" on March 11, 2006. The probate petition reflects that the decedent died four days later on March 15, 2006. Subsequently, on April 24, 2006, the witnesses signed an affidavit attesting to the execution of the decedent's will. Peter Pavelock and Margaret McKeon, children of the decedent and beneficiaries under a prior will dated July 28, 1994, filed objections to the probate of the March 11, 2006 instrument. The objectants contend that the instrument offered for probate was not duly executed; that the decedent was not competent to make a will; and, that the decedent was subject to undue influence at the time of execution.It is well settled that in order "to obtain summary judgment, it is necessary that the movant establish his or her cause of action or defense sufficiently to warrant the court as a matter of law in directing judgment' in his or her favor (CPLR 3212[b]), and he or she must do so by tender of evidentiary proof in admissible form." (Friends of Animals, Inc. v. Associated Fur Mfrs., Inc., 46 NY2d 1065, 1067 [1979].) Parties opposing a motion for summary judgment are obliged to lay bare their evidentiary proof in admissible form in order to show that their allegations are capable of being established at a trial. (Albouyeh v. County of Suffolk, 96 AD2d 543 [2d Dept. 1983] aff'd 62 NY2d 681 [1984].) Bare conclusory allegations, expressions of hope or unsubstantiated assertions are insufficient. (Zuckerman v. City of New York, 49 NY2d 557, 562 [1980].)

SCPA §1408 requires the surrogate to determine that a propounded instrument "was duly executed and that the testator at the time of executing it was in all respects competent to make a will and not under restraint."

The proponent has submitted proof, in the form of the

witnesses' deposition testimony, to establish, on a prima facie basis, that the decedent understood [*3]the contents of the instrument he was signing. (see Matter of Kumstar, 66 NY2d 691, 692 [1985] reargument denied 67 NY2d 647 [1986]; Matter of Weltz, 16 AD3d 428 [2d Dept. 2005].) There is no evidence presented that the testator knew those who would be considered the natural objects of his bounty. (Kumstar, supra.) In opposition to proponent's motion for summary judgment, the objectants have submitted, inter alia, the affidavit of Raymond Tyrell.

Mr. Tyrell avers that he knew the testator for fifteen years. Mr. Tyrell, a member of American Legion Post 203, was asked to attend a ceremony on March 11, 2006 in the testator's hospital room at which the testator was awarded a bronze star for his military service during World War II. Mr. Tyrell, along with other Post members, had to wait outside the testator's room because the propounded instrument signing was taking place. Mr. Tyrell and the others entered the decedent's room immediately after the witnesses departed. Mr. Tyrell avers:

"I was glad that we were able to get the ceremony organized so quickly upon seeing Frank in his deteriorated condition that day. He was lying in his hospital bed hooked to an IV in an obvious weakened condition. I went to shake his hand and he could bearly (sic) muster enough energy to do so. It was obvious that he was on medication by the glassy look in his eyes and appeared to be out of it. Attached hereto as Exhibit B' is a photograph taken of me shaking Frank's hand during the medal ceremony. As you can see, Frank bearly (sic) raised his arm and was unable to really shake hands but only weakly opened his hand allowing me to grasp his fingers.

Although I have known Frank for at least the past fifteen years, I am not sure if he even recognized me that day. It was obvious that he was not capable of having a conversation and the only words I heard him utter during the entire time of the ceremony, which lasted approximately 15 to 20 minutes, was to hear him whisper, in an extremely low tone, thank you' to a couple of the other Post members.

Although it appeared that Frank understood that he was receiving the bronze star, I would certainly not describe him in a good mood or alert. If anything, he was somber and quiet and it appeared to me that Frank was not capable of having any conversation of any significance.

Based upon my observations of Frank at that time and based upon my knowing Frank for the past fifteen years, I would be unable to state that he was of sound mind, memory and understanding during the medal ceremony. In my opinion, he did not appear to have the capacity to make an important legal decision such as the making of a Will based upon what I observed on March 11, 2006."

It is well settled that the standard for testamentary capacity is lower than the criterion for contractual capacity. (Matter of Coddington, 281 AD 143 [3rd Dept. 1952]), aff'd 307 NY 181 [1954].) Nonetheless, there is sufficient evidence to establish, on a prima facie basis, that the testator lacked testamentary capacity at the time he executed the propounded instrument. When there is conflicting evidence regarding the testator's capacity, the issue is one for a jury. (Kumstar, supra at 692.)

I find that objectants have established that there are triable issues of fact regarding the decedent's testamentary capacity.

EPTL §3-2.1 provides the specific formal requirements for the execution and attestation of wills. It is well settled that where an attorney-draftsperson has supervised the propounded will's execution, there is a presumption of regularity that the will is properly executed in all respects. (Matter of James, 17 AD3d 366, 367 [2d Dept. 2005].) The proponent in the instant proceeding acknowledges that an attorney did not supervise the propounded instrument's execution so there can be no presumption that the will was properly executed in all respects and the proponent must establish each of the required elements.

EPTL §3-2.1(a)(1) requires that the instrument "shall be signed at the end thereof by the testator." In the pending proceeding, the testator's signature appears at the end of the propounded instrument.

EPTL §3-2.1(a)(2) requires "the signature of the testator shall be affixed to the will in the presence of each of the attesting witnesses." The proponent has presented the testimony of the attesting witnesses as well as the notary who prepared the jurat to the effect that both witnesses were present at the time that the testator executed the propounded instrument. The objectants have submitted no evidence to the contrary.

EPTL §3-2.1(a)(3) requires that:

"The testator shall, at some time during the ceremony or ceremonies of execution and attestation, declare to each of the attesting witnesses that the instrument to which his signature has been affixed is his will."

Neither of the attesting witnesses nor the notary who witnessed the execution of the propounded instrument averred at their SCPA §1404 examinations that the testator declared that the instrument he was signing was his will. One of the witnesses testified that the testator read parts of the document aloud but not the entire document. The other witness attested that the testator read the entire three paragraphs aloud. The notary testified that the testator did not read the instrument aloud. If the testator read the entire instrument aloud, he would have, perforce, declared it to be his last will and testament as evident from the opening paragraph. There was testimony at all three depositions to the effect that the testator was asked if he knew what he was signing and he acknowledged that he did know, although no one testified that the document was ever referred to as a "will." The court notes that the propounded instrument is not entitled "last will and testament," although the first sentence is a declaration that the document is such. The conflicting testimony of the attesting witnesses and the notary creates triable issues of fact as to whether the testator declared the propounded instrument to be his last will and testament.

EPTL §3-2.1(a)(4) provides:

"There shall be at least two attesting witnesses, who shall, within one thirty day period, both attest the testator's signature, as affixed or acknowledged in their presence, and at the request of the testator, sign their names and affix their residence addresses at the end of the will."

There is no evidence in the record that the testator requested that the witnesses sign their names and affix their residence at the end of the will. In fact, the testimony from both witnesses was that the proponent, testator's son, had previously requested that they witness the document's execution and had explained their responsibilities. The proponent has established, on a prima facie basis, that each witness executed the will contemporaneous with the testator's execution, although they did not sign an attestation until more than a month after the death of the testator. [*5]

I find that there are triable issues of fact as to whether the specific requirements for due execution set for in EPTL §3-2.1 were adhered to when the propounded instrument was signed.

UNDUE INFLUENCE AND FRAUD

Undue influence is an affirmative assault on the validity of

The proponent testified at his §1404 examination that for eleven years prior to his father's demise, he resided rent-free in his father's two family home. The proponent averred that in lieu of rent, he gave his father $400.00 cash each month for "bills and stuff." During that entire period, the decedent resided in the downstairs portion of the residence with proponent's brother son, Roger. The proponent asserts that after his father was hospitalized shortly before his death, his father asked him to "go to the nurse's office" to get a piece of paper so he can make out a will. The proponent averred as follows:

"I said Dad, don't you have one made out already? He says I only got a living trust. He said I don't have a will. I said you got to have one. I said I can't go to the nurse's office and can't do that, it can't be done. I said I'll be back. I said I'll come up with something."

The evidence adduced on this motion establishes that the decedent had, in fact, executed a will prepared by an attorney on July 28, 1994, which devised his entire estate in trust for the benefit of each of his six children.

The proponent acknowledged that he refused to accede to his father's request to obtain paper so that his father could draft his will. Instead, the proponent testified that he "went home, try to figure out what I can do...Of getting a will put together." Proponent testified that his sister-in-law, Jackie Khan, contacted an attorney she knew who dictated the language of the propounded instrument over the phone based on the proponent's description of how the estate should be distributed. That attorney has submitted an affidavit which belies the proponent's testimony. Attorney Manpel avers that:

"Jackie then told me that Mrs. Libby had drafted a purported will and she asked if she could read it to me over the telephone. I told her that I would listen but that I made no representations as to the validity or legality of a document that I have never seen. After listening, Jackie asked if such a will could be probated. I advised her that I did not know. That a lawyer would not prepare such a document."

The proponent testified that he brought the instrument to his father in the hospital for his signature. The proponent acknowledges that he asked a long-time co-worker to witness the signing of the instrument and that he asked that witness to bring someone else along. The proponent also relied upon his co-worker to obtain a notary. The notary is related to the attesting witness. The proponent admits that he remained in his father's room during the signing of the instrument.

Undue influence is not often amenable to direct proof. It can be shown by all the facts and circumstances surrounding the creation and execution of the propounded instrument; the [*6]family dynamics and the opportunity of an individual to overcome the free will of the testator. (see Matter of Anna, 248 NY 421 [1928].)

The objectants have presented circumstantial evidence that the testator was not exercising his free will and that Frank G. Pavelock, Jr. compelled the decedent to execute the propounded instrument. The fact that the instrument favored Frank G. Pavelock, Jr. and Roger Pavelock over their siblings is, in itself, insufficient to establish undue influence. However, the circumstances regarding the drafting of the propounded instrument; the involvement of interested parties in its preparation and execution; the lack of any extrinsic evidence that the testator independently determined to alter his longstanding testamentary scheme, inter alia, establish, on a prima facie basis, undue influence. The depositions of the persons present at the signing contain conflicting testimony as to what the testator said; whether he declared the instrument to be his will and whether he understood that he was altering a longstanding testamentary scheme. I find that there are triable issues of fact which require submission of the issue of undue influence to that trier of fact. (Matter of Cavallo, 6 AD3d 434 [2d Dept. 2004].)

Therefore, it is ordered that the parties respective motions for summary judgment are denied. It is further ordered that Frank Pavelock, Jr. shall file a note of issue and certificate of readiness pursuant to 22 NYCRR §207.29(b) on or before September 6, 2007. The parties are directed to appear for a pretrial conference on September 13, 2007 at 9:00 a.m. No adjournments shall be granted without leave of the court. It is further ordered that Frank Pavelock, Jr. shall file a statement of issues pursuant to 22 NYCRR §207.30(a) on or before September 12, 2007.

The foregoing constitutes the decision and order of the Court.

Dated:Poughkeepsie, New York

August 17, 2007

ENTER

Hon. James D. Pagones, S.C.J.