This is a motion for summary judgment ^[FN1] brought by John Cella, preliminary executor of the estate of his great-aunt, Mildred Rosasco, and proponent in a proceeding to probate her will. Objectants (four of decedent's nieces and nephews, including proponent's mother) oppose the motion. The facts of this case and the objections asserted present an opportunity to reexamine the tangled relationship in New York law between undue influence and duress as grounds for invalidating a will.

Procedural Posture:

Decedent died on June 18, 2006, at age 93, survived by five nieces and nephews as her distributees, leaving a $2.8 million estate. The propounded instrument, executed on September 16, 1997, nominated as co-executors Loretta, a predeceased sister,^[FN2] and proponent and left the entire probate estate to Loretta and Lillian, another predeceased sister,^[FN3] but, in the event neither survived decedent, to proponent. Accordingly, proponent is the only person with an interest under the propounded instrument.

Distributees Elissa Cella, Robert Rosasco, Arthur Rosasco ^[FN4] and Ellin Learned objected to probate of the propounded instrument, alleging that the instrument: (1) is not genuine; (2) was [*2]not duly executed; (3) was executed by mistake; (4) was executed without testamentary capacity; (5) is the product of proponent's undue influence; (6) is the product of duress exercised by proponent on decedent; and (7) was procured by proponent's fraud.

Summary Judgment:

On a summary judgment motion, the court must examine the evidence in a light most favorable to the party opposing summary judgment (see Council of City of New York v Bloomberg, 6 NY3d 380, 401 [2006]). That party "must assemble and lay bare its affirmative proof to demonstrate the existence of genuine, triable issues. Reliance upon mere conclusions, expressions of hope or unsubstantiated allegations is insufficient for that purpose [citations omitted]" (Corcoran Group v Guy Morris et al., 107 AD2d 622, 624 [1st Dept 1985], affd, 64 NY2d 1034).

Objectants have articulated a basis for their allegations of undue influence and duress, but adduced no evidence to support any other ground. Therefore, with respect to issues for which objectants bear the burden of proof — allegations that the propounded instrument is the product of fraud (see Matter of Evanchcuk, 145 AD2d 559, 560 [1st Dept 1988]) and was executed by mistake — but have furnished none, the motion for summary judgment is granted. With respect to objections for which proponent bears the burden of proof — the genuineness of the instrument (see Matter of Creekmore, 1 NY2d 284, 292 [1956]); see also SCPA 1408[1]), the due execution of the instrument and the capacity of the testator (see Matter of Kumstar, 66 NY2d 691, 692 [1985]) — and has borne his burden (by means of an affidavit of the attesting witnesses, the attestation clause of the will, and proof that an attorney supervised the execution of the will [Matter of Schlaeger, 74 AD3d 405 (1st Dept 2010)]), the motion for summary judgment also is granted. The only remaining issue, therefore, is whether objectants' allegations of undue influence and duress warrant a trial.

Facts Relevant to Claims of Undue Influence and Duress:

Decedent, her sisters Lillian and Loretta, and proponent and his family all lived in various apartments in 45 Morton Street, a building owned by LoRoss Realty Corp., a closely-held corporation controlled by members of the Rosasco family. When proponent's parents threw him out of their home,^[FN5] proponent, according to his deposition testimony, simply moved from his parents' units, Apartments 7 and 8, into Apartment 2, which belonged to Lillian. Lillian resided with decedent in Apartment 5. Loretta lived in Apartment 4. In 1989, decedent gave proponent a key to Apartment 5.

In August 1997, proponent (along with Lillian and Loretta) attended a meeting between decedent and Joseph J. Cella, Esq., (no relation to proponent), the attorney who drafted the September 16, 1997 instrument, at which the terms of the proposed instrument were discussed. [*3]"In essence," proponent testified at his deposition, "she said she'd like to leave all her possessions to her sisters first and then to me."

In 1997, that same year, proponent's relationship with his sister Kate, according to his own deposition testimony, was "hostile." Proponent knew that decedent and her sisters provided Kate (who no longer was residing at 45 Morton Street) with financial support. It was "common knowledge"; besides, at the time, according to his deposition testimony, proponent had unfettered access to decedent's checkbook and monitored checks payable to Kate. Decedent's financial support of Kate infuriated proponent. He berated decedent and her sisters loudly and often. His anger incited him to violence. He testified at his deposition that, in 1997, on one of Kate's weekly visits to Apartment 5 to ask decedent and her sisters for money, he struck Kate and "pushed" her to the floor.

Kate also testified at her deposition about the 1997 incident:

"A.There was one time I believe in — I believe it was 97 when John hit me in the back while I was — while I was leaving the apartment and he was coming in. He just swung around and hit me. And it was in front of all three of my aunts. And that was one of the —

Q.As you were coming the [sic] apartment?

A.As I was going out.

Q.As you were going out the door?

A.Yes. And that was the one time that — well, not the one time; but it was, like, a major time when all three aunts got up and went after him. They were yelling at him to leave me alone. They were very agitated and they were very upset. They called the police."

The court notes that decedent was crippled from polio. In 1997, according to proponent's deposition testimony, decedent was 5'7" and "skinny," weighing approximately 100 pounds, while proponent was 5'11" tall, weighing 190 pounds.

According to Kate, the 1997 incident was not proponent's first act of violence against her in decedent's presence. As she testified at her deposition:

A.There were plenty of instances where he tried to intimidate me physically. But as for hitting me, it was confined to 97 and one in 94- 95.

Q.Did you —

A.And that was in front of the aunts too.

Q.What happened then?

A.He started an argument with Mildred about giving me money and about me being [*4]around them, which is what he usually complains about. And when she told him to get out, he said, I'm not going anywhere. Then he promptly punched me in the stomach in front of them and I went down like a ton of bricks.

He's a martial — he knew martial arts at this time. So he was

pretty strong at that time. . . ."

Proponent's violence and other intimidating behavior had a keen effect on decedent. Kate testified at her deposition:^[FN6]

" . . . I remember the conversation happening at the end of August, beginning of September of 97 where she said one day — I came in one day to talk to her.

"She said — and I quote — I did a really stupid thing. I made your brother the executor of my estate and I should have made you that, meaning me. And I said, Well, easy thing to do. Call your lawyer and have it changed if that's what you want to do.

"Oh, no. If I do that, he'll hurt me. And I was, like, Um, its your estate. You shouldn't have to be intimidated by him. If you're afraid of calling the lawyer, I'll call the lawyer. No. If you do that, he's just going to end up making things a lot worse and he's going to hurt you and I don't want that on my conscience.

"And I talked to her about it and I said, Well, it's your money. It's your estate. If you don't want John to be the executor, you have the right to call your lawyer and have it changed.

"She kept saying that if she did that, John would hurt her. Which I could believe, because he intimidated her a lot over the years."^[FN7]

There is also evidence decedent believed that, even if she were to make a new will — and expose herself and Kate to the risk of proponent's violence — proponent, nevertheless, would thwart her intent. Kate testified at her deposition that, in 2002, when Loretta complained that proponent had taken $10,000 from her:

"Mildred said, Well, he did the same thing to me. I mean, he's the executor of my estate and I really don't want him to be. . . . And then she said, Well, he's probably going to find a way to steal my money anyway . . .."

Decedent's declarations to Kate that: (1) if she were to contact her lawyer about making a new will, proponent would "hurt me," (2) if Kate were to contact the lawyer on decedent's behalf, proponent's "going to hurt you," and (3) regardless of the terms of her will, proponent would "find a way to steal" the assets of her estate, are not considered for their truth or falsity. Rather, these statements fall within the state of mind exception to the hearsay rule (see Prince on Evidence § 8-106). As the Court of Appeals explained:

"No testimonial effect need be given to the declaration, but the fact that such a declaration was made by the decedent, whether true of false, is compelling evidence of her feelings toward, and relations to, [in the instant case, proponent]. As such it is not excluded under the hearsay rule but is admissible as a verbal act."

Courts have long wrestled with the concept of undue influence.^[FN8] In the nineteenth [*6]century, the Court of Appeals noted:

"It is impossible to define or describe with precision and exactness what is undue influence; what the quality and the extent of the power of one mind over another must be to make it undue, in the sense of the law, when exerted in making a will. Like the question of insanity, it is to some degree open and vague, and must be decided by the application of sound principles and good sense to the facts of each given case. [Citation omitted.] But the influence exercised over a testator which the law regards as undue or illegal, must be such as to destroy his free agency; but no matter how little the influence, if the free agency is destroyed it vitiates the act which is the result of it. In 1 Jarman on Wills, 36, it is said: That the amount of undue influences which will be sufficient to invalidate a will must of course vary with the strength or weakness of the mind of the testator; and the influence which would subdue and control a mind naturally weak, or one which had become impaired by age, sickness, disease, intemperance, or any other cause, might have no effect to overcome or mislead a mind naturally strong and unimpaired.'"The undue influence is not often the subject of direct proof. It can be shown by all the facts and circumstances surrounding the testator, the nature of the will, his family relations, the condition of his health and mind, his dependency upon and subjection to the control of the person supposed to have wielded the influences, the opportunity and disposition of the person to wield it, and the acts and declarations of such person. [Citations omitted.]"

Rollwagen v Rollwagen, 63 NY 504, 519 (1876).

A year later, the Court of Appeals amplified its definition, explaining that influence

is undue if it:

" amounted to a moral coercion, which restrained independent action and destroyed free agency, or which, by importunity which could not be resisted, constrained the testator to do that which was against his free will and desire, but which he was unable to refuse or too weak to resist. It must not be the promptings of affection; the desire of gratifying the wishes of another; the ties of attachment arising from consanguinity, or the memory of kind acts and friendly offices, but a coercion produced by importunity, or by a silent, resistless power which the strong will often exercises over the weak and infirm, and which could not be resisted, so that the motive was tantamount to force or fear. [Citations omitted.]"

Some 82 years later, the Court of Appeals, in Matter of Walther (6 NY2d 49 [1959]), articulated the elements of a prima facie case: (1) undue influence may be proven by circumstantial evidence, provided such evidence is substantial (id. at 54); (2) there must be a showing, not only of opportunity and motive to exercise undue influence, but also, of the actual exercise of undue influence (id. at 55); and (3) evidence that equally gives rise to an inference of undue influence or an inference that no undue influence was practiced, does not establish undue influence (id. at 54).

The New York State Pattern Jury Instructions provide:

"A will must be a true expression of the testator's wishes. If, instead, it reflects the desires of some person who controlled the testator's thoughts or actions, the will is invalid because of undue influence. To be undue', the influence exerted must amount to mental coercion that led the testator to carry out the wishes of another, instead of (his, her) own wishes, because the testator was unable to refuse or too weak to resist. The undue pressure brought to bear may consist of a play on the testator's emotions, passions, fears, weaknesses or hopes. It may consist of an appeal to (his, her) prejudices or a continual course of flattery. The exercise of undue influence may be slow and gradual, progressively gaining control over the testator.

"Direct evidence of undue influence is seldom available. Accordingly, the law permits undue influence to be shown by facts and circumstances leading up to and surrounding execution of a will. However, it is not enough that you find that motive and opportunity to exercise undue influence existed. You must also find additional facts that satisfy you that such influence was actually exercised. Further, the facts upon which a claim of undue influence is based must be proved. In other words, you may not guess or speculate. It must appear that the inference of undue influence is the only one that can fairly and reasonably be drawn from the facts proved, and that any other explanation is fairly and reasonably excluded. If the facts proved would reasonably support an inference that undue influence was exercised, as well as the contrary inference that it was not exercised, then undue influence has not been proved.

"You just answer the following question: Was the execution of the will . . . by the testator, AB, the result of undue influence by CD?' To answer that question, you must determine what were the facts and circumstances leading up to and surrounding execution of this will, taking into consideration such testimony as you deem true concerning . . . AB's physical and mental condition; AB's contact with, or isolation from, (his, her) family and

friends . . ..

"The burden is on the contestant to establish by a fair preponderance of the evidence that the will in question was the result of undue

influence . . .."

PJI2d 7:55 at 1429-1430 [2011]). [*8]

This "classic" type of undue influence is difficult to prove. It tends to be practiced in secret (a "silent resistless power") on an individual who is enfeebled, isolated and moribund, someone susceptible to the effects of subtle importuning who, after executing her will, either loses capacity or dies while subject to the undue influence. On its face, it would not appear applicable to the instant case. Decedent here, at the time she executed her will, suffered no mental infirmity, lived communally with her sisters and survived an additional eight-and-three-quarter years. During that period, she was connected to, and received assistance from, many people other than proponent.^[FN9]

The burden of proving this "classic" form of undue influence is eased if objectants can establish that the testator was in a relationship of trust and dependence with a person who exploited that relationship (see PJI2d 7:56.1 at 1442-1444 [2011]). Such facts permit an inference of undue influence that obligates the person charged with undue influence to explain the bequest (Matter of Katz, 15 Misc 3d 1104[A][Sur Ct, New York County, 2007]).^[FN10]

Unsurprisingly, objectants claim that decedent was in a relationship of trust and dependence with proponent;^[FN11] however, their non-specific and conclusory allegations fail to establish the existence of such relationship. Objectants claim that proponent was "a regular presence at [decedent's] apartment, a participant in her daily life," that he "assist[ed] her and [made] arrangements for her daily life" and that he "supervised her care." These allegations, inadequate in themselves to describe a confidential relationship, are based on the affidavits of [*9]Zoe Maher and Mayra Rajeh which, along with proponent's own deposition testimony, undercut any claim of isolation or exclusive dependence. At most, proponent was part of decedent's support system.

In the absence of evidence of actual exercise of undue influence on a weakened mind or abuse of a confidential relationship, proponent, under the "classic" definition of undue influence, would be entitled to summary judgment. Yet, "classic" undue influence is not the only ground on which to determine whether a propounded instrument expresses testator's unconstrained choice. Although it is seldom discussed in New York cases, the First Department has noted:

"There are two principal categories of undue influence in the law of wills, the forms of which are circumscribed only by the ingenuity and resourcefulness of man. One class is the gross, obvious and palpable type of undue influence which does not destroy the intent or will of the testator but prevents it from being exercised by force and threats of harm to the testator or those close to him. The other class is the insidious, subtle and impalpable kind which subverts the intent or will of the testator, internalizes within the mind of the testator the desire to do that which is not his intent but the intent and end of another. [Citations omitted.]"

Matter of Kaufmann, 20 AD2d 464, 482-483 (1st Dept 1964), affd 15 NY2d 825 (1965).

The former category is also known as "duress."

Duress:

In the context of contested probate proceedings, New York State courts tend to blur the distinction between duress and undue influence.^[FN12] Indeed, the New York State Pattern Jury Instructions do not even mention duress as a ground, separate from undue influence, for contesting a will.^[FN13] Such indiscriminate approach toward the law of duress is not unique to the [*10]courts of this State. A legal scholar has observed:

"In fact, in the American law of wills, the concepts of duress and undue influence are so intertwined that several major Trusts and Estates textbooks omit discussion of duress altogether or explain the idea only in connection with undue influence. Leading treatises explain that duress is often classed under undue influence.' And, in the context of wills, it may be defined as the use of coercion or force to such a degree that it destroys the free agency and willpower of the testator. The Restatement is perhaps most helpful in distinguishing between duress and undue influence. [Footnotes omitted.]"

The Restatement (Third) of Property distinguishes a bequest procured by undue influence from one procured by duress. As to the former:

"A donative transfer is procured by undue influence if the wrongdoer exerted such influence over the donor that it overcame the donor's free will and caused the donor to make a donative transfer that the donor would not otherwise have made."

[*11]Id. § 8.3(b).

The latter is explained as follows:

"A donative transfer is procured by duress if the wrongdoer threatened to perform or did perform a wrongful act that coerced the donor into making a donative transfer that the donor would not otherwise have made."

Id. § 8.3( c ).

The Comment onSubsection( c ) explains:

"An act is wrongful if it is criminal or one that the wrongdoer had no right to do. See Restatement Second, Contracts §§ 174-176. Although an act or a threat to do an act that the wrongdoer had a right to do does not constitute duress, such a threat or act can constitute undue influence, for example, a threat to abandon an ill testator."

The Restatement of Contracts fleshes out the elements of duress. First, "the doing of an act often involves, without more, a threat that the act will be repeated" (Restatement [First] of Contracts § 492 Comment d).^[FN15] As stated in the Restatement (Second) of Contracts: "Past events often import a threat" (id. § 175 Comment b).

Second, the standard for evaluating whether an "act or threat produces the required degree of fear is not objective," but subjective, that is, the issue is whether the threat of a wrongful act induced such fear in the testator "as to preclude the exercise by [her] of free will and judgment" (Restatement [First] of Contracts § 492 Comment a]). As explained in the Restatement (Second) of Contracts: "The test is subjective and the question is, did the threat actually induce assent on the part of the person claiming to be the victim of duress" (id. § 175 Comment c).

Finally, the motivation or intent of the person charged with duress is irrelevant: "duress does not depend on the intent of the person exercising it" (Restatement [First] of Contracts § 492 Comment a]).

Objectants here have established a prima facie case for duress. The evidence adduced by objectants, if believed by the trier of fact, could establish that: (1) To decedent, proponent's wrongful act — his violence toward Kate — posed a threat of repeated violence. (2) That threat [*12]induced fear in decedent. (3) Decedent feared that, if she were to make a new will that favored Kate, not only would proponent harm decedent, if he were to learn of the new will during decedent's lifetime, but also, more significantly, upon decedent's death, proponent would physically harm Kate (and convert for himself any assets intended for Kate). And (4) Such fear precluded decedent from exercising her free will and judgment and naming Kate, a natural object of her bounty, a legatee.

Proponent's Contentions:

Proponent makes two arguments which may be disposed of easily. First, he contends that it was natural for decedent to disinherit her nieces and nephews because her relationship with them was "distant at best." Indeed, objectants Elissa Cella and Ellin Learned, along with another of decedent's nieces (the one who did not object in the instant probate proceeding), commenced an action in 1988 against decedent, her sisters Lillian and Loretta and their brother Walter (who died in 1997), accusing them of mismanaging LoRoss Realty Corp. However, the rationale for decedent's decision to disfavor her nieces and nephews has no bearing on her decision to favor proponent to the exclusion of others. Rather, the issue is, as discussed above, whether her decision was the product of duress.

Second, proponent, invoking the doctrine of laches, contends that objectants are precluded from objecting to probate of the propounded instrument because they did not: (1) object to the appointment of proponent and Joseph J. Cella, Esq., as co-executors of Lillian's will, or (2) object to the appointment of proponent (after decedent had renounced her nomination as executor) as administrator c.t.a. of Loretta's estate, or (3) object, during decedent's lifetime, to the 2002 agreement, whereby decedent and her sisters, Lillian and Loretta, transferred to proponent their 60% interest in premises known as 51 East 10th Street for less than fair market value, or (4) seek the appointment of an Article 81 guardian for decedent, all of which deprived proponent of the benefit of decedent's testimony. Proponent's invocation of the doctrine of laches is entirely inapposite.

The questions presented in the instant proceeding concern only the validity of the instrument executed on September 16, 1997. Such questions could not have been raised during decedent's lifetime. Furthermore, objectants had no standing, during decedent's lifetime, to challenge the 2002 transfer; indeed, objectants will remain without standing unless they establish an interest in decedent's estate.^[FN16] [*13]

Conclusion:

The motion for summary judgment with respect to duress is denied. In all other respects, the motion is granted.

The court will contact the parties to schedule a conference before a trial on the issue of duress.

This decision constitutes the order of the court.

SURROGATE

Dated:April 5, 2011