[*1]
| Matter of Kryk |
| 2007 NY Slip Op 52414(U) [18 Misc 3d 1105(A)] |
| Decided on December 20, 2007 |
| Sur Ct, Monroe County |
| Calvaruso, J. |
| Published by New York State Law Reporting Bureau
pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be
published in the printed Official Reports. |
Sur Ct, Monroe County
In the Matter of the
Probate of the Will of Olga H. Kryk, Deceased.
|
2006-2203
Robert Schultz, Esq., for the Petitioners, David Kryk and Dawn Kryk.
Paul Aloi, Esq., for the Objectants, Kenneth Kryk and Kathleen Jada.
Edmund A. Calvaruso, J.
Decedent died on August 19, 2006. She left as distributees two sons, David Kryk
and Kenneth Kryk, and one daughter, Kathleen Jada. The document propounded as her last will
and testament is dated December 3, 2001. It leaves $100 to Kenneth Kryk and $100 to Kathleen
Jada, and the remainder of her estate to David Kryk and his wife Dawn Kryk, the nominated
executors and petitioners herein.
A SCPA 1404 examination of witnesses was held on January 8, 2007. On January
30, 2007, Kenneth Kryk and Kathleen Jada filed objections to the probate of the document based
upon lack of testamentary capacity and undue influence. This Court issued a decision dated May
10, 2007 approving the late filing of those objections. Afterward, petitioners filed a notice of
motion for summary judgment, arguing that as a matter of law, the document should be admitted
to probate.
Lack of
Testamentary Capacity
Proving testamentary capacity is the petitioner's burden. In re Kumstar, 66
NY2d 691 (1985). The capacity requirement to execute a will is a minimal standard, it is lower
than the requirement for other legal documents: "less capacity is required to enable one to make a
will than to make other contracts". In re Coddington's Will, 281 AD 146, 143 (1952).
Capacity is evaluated by three factors: whether decedent understood the "consequences of
executing a will, knew the nature and extent of the property being disposed of, and knew the
persons who were the natural objects of his/her bounty and her relationship with them".
Matter of Friedman, 26 AD3d 724, 723 (2006); In re Estate of Slade, 106 AD2d
914 (1984); In re Kumstar, 66 NY2d 691 (1985).
Here, petitioners have made a prima facie showing that decedent was
competent and the will was executed properly. The execution ceremony was presided over by
Franklin D'Aurizio, a local attorney and the draftsperson of the will, who testified that he knew
decedent was ill, but that she was competent and aware of what she was doing at the time of the
ceremony. Presence of an attorney at the execution ceremony lends proponents a presumption
that the statutory [*2]requirements for execution were complied
with. In re Estate of Johnson, 6 AD3d 859 (2004); Matter of Friedman, 26 AD3d 723 (2006). Testimony by an
attorney-draftsperson who witnessed the will's execution is sufficient to establish a prima
facie case of testamentary capacity. Matter of Dietrich, 271 AD2d 894 (2000).
Objectants have filed affidavits stating that decedent was mentally foggy, unable to
manage her affairs on a day-to-day basis, and at times unable to immediately recognize family
members. Even accepting objectants' evidence as true, it is insufficient as a matter of law.
General statements as to decedent's ability to manage her finances and statements as to her
mental clarity cannot offset specific testimony by the will's witnesses as to the decedent's
awareness of the nature and consequences of a will execution and its effect on the assets which
she owned. The question of testamentary capacity is a question which is asked at the precise time
of the will's execution. In re Minasian, 149 AD2d 511 (1989); In re Hedges, 100
AD2d 586, 588. Evidence as to mental confusion or incompetency of the decedent is therefore
not incompatible with testamentary capacity. See, id. Here, proponents have provided
evidence showing a prima facie case on the elements of probate which are their burden to
bear. When presented with a presumption of due execution and testamentary capacity, general
statements alleging incompetence are insufficient as a matter of law.Consequently, petitioners'
motion for summary judgment as it relates to the issue of lack of testamentary capacity is
granted.
Undue Influence
The burden of proving
undue influence generally belongs to the objectant. Matter of Eckert, 93 Misc 2d 677
(1978); Matter of Hayes, 49 Misc 2d 152 (1966). Here, objectants have argued
that they have established the right to receive an inference of undue influence, thus shifting the
burden of proof. Objectants base this upon an alleged confidential relationship between
petitioners and decedent. The court does not accept this argument however, since the existence of
a close familial relationship between parties typically negates any influence of undue
influence. Matter of Walther, 6 NY2d 49 (1959). See also, this court's opinion in
Matter of Petix, 15 Misc 3d 1140A, 2007 NY Slip Op 5105U, May 29, 2007. Objectants
will retain the burden of proof on this matter.
The standard for undue influence is a high one for a will contestant to meet. It
amounts to an interference beyond mere persuasion, encouragement or suggestion:
it must be shown that the influence exercised 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. Children's Aid Society of the City of NY
v. Loveridge, 70 NY 387, 394.
An objectant must prove, by a preponderance of the evidence, that the perpetrator
had both the motive and opportunity to exert influence, and such influence was actually
exercised. Matter of Fiumara, 47 NY2d 845, 846 (1979); In re Walther, 6 NY2d
49 (1959).
[*3]
Typically undue influence is proved by
circumstantial rather than direct evidence. Objectants have provided the court with affidavits
stating examples which they argue are illustrative of petitioners' undue influence upon the
decedent. Presuming for the purposes of this motion that objectants' version of the facts is
correct, the evidence suggests that petitioners drove decedent to the attorney's office for her will
signing, were potentially involved with its provisions and were present at the execution
ceremony. Coupled with other objectants' other allegations, there exists sufficient circumstantial
evidence on each of the required elements: motive (petitioners' financial problems), opportunity
(decedent's signing of blank checks for petitioners/ petitioners' presence at the signing ceremony
of the will) and actual acts of undue influence (the credit card transfer).
The determination of the relative weight to place on objectants' testimony as opposed
to petitioners' testimony is to be reserved for trial, since the determination of evidence and fact
finding are not only outside the scope of this motion, but necessitate failure of the motion for
judgement as a matter of law. Therefore, petitioners' motion as it relates to claims of undue
influence is denied.
It is therefore ORDERED that objections to probate are hereby dismissed on all
grounds other than that of undue influence/fraud. Parties are to submit to the court a proposed
scheduling order, or alternatively telephone the court to schedule a conference, within 30 days of
this date.
Edmund A. Calvaruso
December 20, 2007Hon. Edmund A. Calvaruso, Surrogate