In this probate proceeding, the proponents, the decedent's two daughters, move for summary judgment, dismissing the objections filed by the decedent's son and admitting to probate the propounded instrument executed on September 8, 1998. In opposing the motion, the objectant withdrew objections "3" and "4". The only objections that have not been withdrawn are an allegation that the instrument "is not the Last Will and Testament of the...decedent" and that it was procured by fraud and undue influence practiced upon the decedent by the proponents or others acting in concert with them. However, the papers in opposition do not contain a single factual allegation with regard to any objection other than the allegation that the will was procured by the undue influence extended upon the decedent by the proponents. Consequently, the only issue to be decided is whether the movants have established that there are no triable issues of fact with regard to the allegations of undue influence.

The decedent died on February 2, 1999 at the age of 82. Her distributees are her three children. Under the propounded instrument the objectant receives a $200,000.00 legacy with the following explanation:

During our lifetimes, my husband and I have provided for our

son, Howard Camac. For this reason, not for lack of love and

affection for him but for reasons of which he is aware, I have

made no further provision for Howard....

The will also contains a legacy of $50,000.00 each to two daughters of the objectant and bequeaths the residuary estate to a revocable lifetime trust that was also executed on September 8, 1998. Under the trust the decedent's two daughters each receive $2,000,000.00 and, if the size of the estate permits, each of seven grandchildren receive $125,000.00 with the residue to be divided equally between the decedent's two daughters. Although there may very well be assets having a very substantial value that passed by operation of law, the proponents, in their application for preliminary letters, have stated that the value of the testate estate is less than $1,250,000.00. [*2]

After the death of the decedent's husband in November of 1997, the decedent moved into the Chappaqua home of her daughter, Dr. Deanna Sandor. Thereafter, she was driven to her home in the Bronx from time to time but she never slept there. It appears that both of the decedent's daughters accompanied her to the office of the attorney where the will was discussed, prepared and ultimately executed. All of the people who were present on those occasions have testified that the daughters did not participate in any meaningful way with regard to the decedent's testamentary plans and that they were solicitous towards her rather than controlling. The testimony further indicates that the daughters were not in the same room either when the attorney went over the provisions of the will and trust with the decedent or during the execution ceremony. One of the attesting witnesses stated that the decedent "seemed concerned" that her son was not sharing equally and that "she repeatedly mentioned that". However, when the drafter asked if she wanted to change that part of her will, she replied that "these are my husband's wishes and they're my wishes too" and she appeared to the witness to be "comforted" when the drafter told her that she could revoke the will at any time if her present intentions changed.

The objectant contends that the following factual allegations establish that there are triable issues of fact with regard to his undue influence objection: the decedent lived with her daughter who was a doctor and who was also involved with her medical decisions, resulting in a "confidential relationship" which shifts the burden of proof to the daughter on the issue of undue influence; both of the proponents accompanied the decedent to the attorney's office when she was discussing her testamentary plans and executing the will and trust; the decedent orally told the objectant that she wanted to treat her three children equally in her will but she could not do so because she was always in the presence of the proponents who did not want the objectant to share in the estate; and there are two typed statements signed by the decedent which are consistent with the oral statements that the decedent had made to the objectant. One of the typed documents is dated March 16, 1998, approximately six months prior to the date of the propounded instrument, is addressed to "To Whom it may Concern" and states: "I also am going to have my will drawn leaving my three children equal shares of my estate." The other document, dated April 19, 1998, is not addressed to anyone and reads as follows:

Let this letter confirm that it is my desire that my son Howard

Camac handle all of my business affairs, since I feel that he

is better qualified than Deanna or Laura to take care of the

commercial properties and investments.

As you know, I regret the fact that my husband elected to

leave my son out of his will. It is my desire that upon my

death, all three (3) of my children share equally in my estate.

In consideration of your love and dedication to me, and in

further consideration for your willingness to take care of my

properties and business affairs, I agree to execute a new

will, leaving all of my assets equally to Deanna, Laura and

Howard. [*3]

The other side of the coin is that, if accepted at face value, the sworn statements submitted in support of the motion indicate that the will was executed with the requisite statutory formalities, at a time when the decedent was competent to make a will and not under restraint. The proponents rely upon numerous essentially uncontroverted allegations in support of their contention that the objectant cannot establish that they exerted any undue influence upon the decedent. They contend that any inferences that might be drawn from the fact that the decedent resided with her physician daughter in Chappaqua is overcome by the testimony that the decedent was taken by car to her Bronx home on a weekly basis and that the decedent traveled to her separate office in Bronx County, accompanied only by a driver, on a regular basis until after the will was executed. They also point out there is no allegation that the objectant and the decedent were ever prevented from either visiting or communicating with each other. Finally, they note that there are two prior testamentary instruments, one executed in 1994 and the other in 1991, under which the objectant either receives the same legacy as in the propounded instrument or no legacy at all and that the proponents receive less under this instrument than under the 1994 instrument.

Summary judgment cannot be granted unless it clearly appears that no material triable issue of fact exists (Phillips v. Kantor & Co., 31 NY2d 307; Glick & Dolleck, Inc. v. Tri-Pac Export Corp., 22 NY2d 439). The movant must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence in admissible form to demonstrate the absence of any material issue of fact (Alvarez v. Prospect Hospital, 68 NY2d 320; Friends of Animals, Inc. v. Associated Fur Manufacturers, Inc., 46 NY2d 1065). When the movant has made a prima facie case, the burden of going forward shifts to the party opposing the motion (Zuckerman v. City of New York, 49 NY2d 557). Summary judgment is a drastic remedy which requires that the party opposing the motion be accorded every favorable inference and that issues of credibility may not be determined on the motion and must await the trial (Westhiill Exports, Ltd. v. Pope, 12 NY2d 491; Esteve v. Abad, 271 App. Div. 725).

With regard to the objectant's allegation of undue influence, he

bears the burden of establishing a motive, the opportunity and the actual exercise of undue influence (Matter of Walther, 6 NY2d 49). The existence of a confidential relationship between the decedent and the donee of a lifetime gift places the burden upon the donee of the gift to establish each element of the gift. However, with regard to testamentary bequests, it appears that no appellate court has gone further than stating that, "although the burden of establishing that there has been undue influence in a particular case rests upon the objectant and does not shift, where there is a confidential relationship between the decedent and the beneficiary/drafter of the will, the mere fact of the bequest, standing alone, permits an inference of undue influence, and the drafter then has the burden of offering an explanation, alternative to his influence, for the contested will" (Matter of Collins, 124 AD2d 48, 54, quoted in Matter of Bach, 133 AD2d 455, 456). However, undue influence is not often the subject of direct proof and whether the free agency of the testatrix was destroyed "must be decided upon the application of sound principles and good sense to the facts of each given case" considering all of the circumstances, including the provisions of the will, the family relations, the condition of the decedent's health and mind, and her dependency upon and subjection to the parties who allegedly wielded the undue influence (Matter of Anna, 248 NY 421, 424).

Here, the court recognizes both that the proponents have made out a strong case and that, although the two documents purportedly signed by the decedent might be admissible at trial as [*4]part of the mosaic picturing undue influence, they are clearly not admissible as either prior inconsistent testamentary instruments or as binding contracts. Nevertheless, in light of the fact that summary judgment is a drastic remedy and that the objectant is entitled to every favorable inference that can be drawn from his allegations, the court finds that the objectant's factual allegations on the issue of undue influence exerted by the proponents are sufficient to defeat the motion. Specifically, the court has considered the following: that it might be inferred from the total picture presented that it was the decedent's predeceased husband rather than the decedent who desired to limit the objectant's share in their combined estates; it has not been established whether or not the prior testamentary instruments upon which the proponents rely were mutual wills that the decedent had executed at the behest of her husband; one of the attesting witnesses indicated that the decedent appeared "concerned" that the objectant was not sharing equally with the proponents; and the signed statements of the decedent coupled with the objectant's oral testimony might influence the trier of the facts to conclude that the decedent desired to treat all of her children equally but her daughters, one of whom participated in her medical care and provided a home for her, overcame her will and made her follow her husband's testamentary scheme rater than her own. Of course, the court also realizes that the trier of the facts might easily conclude that the two statements purportedly signed by the decedent and upon which the objectant relies, were the result of undue influence exerted upon the decedent by the objectant. However, even if this were the case, could not the trier of the facts reason that if one child was able to exert undue influence upon the decedent might not another child be able to do the same?

For the reasons stated above, the motion is denied with regard to the single allegation in objection "5" that the will was the product of undue influence practiced upon the decedent by the proponents. The motion is granted in all other respects either because the objection has been withdrawn or because the proponents have made out a prima facie case on any issue set forth in any other objection and the objectant has not raised a triable issue of fact with regard thereto.

Settle order.

SURROGATE