Respondent-objectant Leah Scher, ("Objectant") moves for an order granting summary judgment dismissing the petition of Mark Scher and David Scher ("Proponents") for probate of the will of Harold Scher dated July 12, 2005, based upon lack of due execution, lack of testamentary capacity, fraud and undue influence.

Proponents cross-move for summary judgment seeking an order dismissing with prejudice the objections of Leah Scher to the probate of the will of Harold Scher dated July 12, 2005, granting the petition for probate, and granting them letters testamentary.

Decedent died on February 11, 2006 at the age of eighty-nine. His son David Scher and his adopted son Mark Scher are from a prior marriage and are the only children of decedent. Objectant is the surviving spouse and stepmother of Proponents. By objections to probate dated October 25, 2006 she alleges:

1) On July 12, 2005 decedent Harold Scher was not of sound mind or memory and was not mentally capable of making a will;

2) The purported will was not freely or voluntarily made or executed by Harold Scher, and if it in fact was subscribed and published by him, it was procured by fraud and undue influence practiced upon him by Proponents or other person(s) acting in concert with them.

The motions before the Court were made following extensive discovery, including depositions of Objectant, Proponents, the three witnesses to the will, and the attorney who prepared the will.

Objectant's motion is supported by her attorney's affirmation, her affidavit and numerous exhibits which include deposition testimony.

Proponents' cross-motion is supported by the affirmation of their attorney in opposition to Objectant's motion and in support of the cross-motion, the affirmations of Dr. Gendelman and Elaine McKnight, Esq., the affidavits Dean Scher and Avra Scher and numerous exhibits which include deposition testimony. [*2]

Objectant's opposition to the cross-motion consists of a reprint of her attorney's affirmation contained in her motion. Having failed to respond and contest the facts as alleged in Proponents' cross-motion, she is deemed to have admitted the facts contained therein (see Kuehne & Nagel, Inc. v Baiden, 36 NY2d 539 [1975], facts appearing in the movant's papers which the opposing party does not controvert are deemed admitted).

The will at issue gives decedent's personal property to his two sons, gives Objectant an amount equal to her elective share, and gives the residuary to his surviving issue in equal shares, (Motion, Exhibit 22). Decedent had moved in with his son, David, in or about June 2005 after Objectant told decedent that she wanted a divorce. In late December 2005 decedent along with his attorney Elaine McKnight met with Objectant and her attorney to try to reach a divorce settlement, but were unable to (Affirmation of Elaine McKnight, Esq., appended to Cross-Motion). At the time of his death on February 11, 2006, decedent was still separated from Objectant and had filed an action for divorce on January 9, 2006 (Cross-Motion, Exhibit C).

Summary judgment in a contested probate proceeding may be granted where the proponent sufficiently establishes a prima facie case for probate, and the contestant fails to raise any genuine issues of fact (Matter of Colverd, 52 AD3d 971 [3d Dept 2008]). The burden of proof of due execution and testamentary capacity rest with the proponent of the will, while the contestant bears the burden of proving undue influence and fraud.

With regard to due execution, as an attorney, Judith Menschik, supervised the will's execution, a presumption of regularity is raised that it was properly executed in all respects (Matter of Spinello, 291 AD2d 406 [2d Dept 2002]; Matter of Esberg, 215 AD2d 655 [2d Dept 1995]). Moreover, the self-executing affidavit signed by the three witnesses to the will also creates a presumption that the will was duly executed and constitutes prima facie evidence of the facts attested therein (Matter of Paigo, 53 AD3d 836 [3d Dept 2008]; Matter of Clapper, 279 AD2d 730 [3d Dept 2001]).

As Proponents established, prima facie, due execution of the will, the burden shifts to Objectant to demonstrate a triable issue of fact. Her allegation in this regard is that according to the deposition testimony of one of the witnesses, Paul Markstein, the will was not read aloud to the decedent prior to its execution. There is, however, no requirement that it be. Objectant has failed to demonstrate any material issue of fact regarding the will's execution and compliance with EPTL §3-2.1.

The burden of proving that the decedent possessed the requisite testamentary capacity rests on the proponent of the will (Matter of Williams, 13 AD3d 954 [3d Dept 2004]). The proponent must establish, (1) that the decedent understood the nature and consequences of executing a will, (2) that the decedent knew the nature and extent of the property that he or she was disposing of, and (3) that the decedent knew the natural objects of his or her bounty, and his relations with them (Matter of Kumstar, 66 NY2d 691 [1985]). Notwithstanding this burden until the contrary is established a testator is presumed to be sane and have sufficient mental capacity to make a valid will (Matter of Betz, 63 AD2d 769 [3d Dept 1978]; Matter of Beneway, 272 AD 463 [3d Dept 1947]).

Proponents presented overwhelming evidence of the testator's testamentary capacity. There is the affidavit of the attesting witnesses opining that decedent appeared to be of sound mind and memory which creates a presumption of testamentary capacity (Matter of Friedman, 26 AD3d 723 [3d Dept 2006]). There is the opinion testimony of the attesting witnesses in their depositions that decedent was of sound mind (see Matter of Vickery, 167 AD2d 828 [4th Dept [*3]1990]). There is the affirmation by Dr. Gendelman, a neurologist, dated May 12, 2008 regarding his comprehensive neurological examination of decedent conducted on March 24, 2005.Dr. Gendelman found decedent to be alert, fluent, cooperative and well oriented. Decedent scored 27-28 out of a potential 30 on a mini-mental status examination, being compatible with benign forgetfulness of aging and/or minimal cognitive defect not fitting the criteria for dementia. There is the deposition testimony of the attorney-draftsperson who was familiar with decedent for many years. There are the affirmation/affidavits given by the disinterested witnesses, (Elaine McKnight, Esq. decedent's attorney in his matrimonial action, decedent's nephew Dean Scher, and decedent's granddaughter, Avra Scher), who had observed and interacted with decedent before and/or after the will ceremony. All attest to his being alert, conversant and fully aware and competent (see Matter of Van Pattan, 215 AD2d 947 [3d Dept 1995]). As Proponents' have met their prima facie burden of showing decedent was competent to make the will, Objectant has the burden of going forward with evidence indicating lack of testamentary capacity.

Objectant in her affidavit in support of the motion alleges decedent suffered from numerous physical, mental and psychological problems including severe depression. To support her claim regarding decedent's lack of testamentary capacity, Objectant attaches as Exhibits ( 3, 4, 5, 6, 7 & 9) copies of six medications prescribed to decedent along with printouts concerning these drugs and their side effects from the internet site "Web MD". The dates on the prescriptions range from March 30, 2004 to November 24, 2004, the one for Coumadin is undated. Also attached as Exhibit 11 are three unsworn/unaffirmed letters from physicians dated March 24, 2005 concerning the decedent. One notes decedent had cerebral atrophy, another indicates atherosclerosis of brain arteries. In his affirmation, Objectant's counsel points to these letters and refers the Court to web sites regarding the effects of these conditions. The third letter is mentioned in the attorney's affirmation to establish decedent was hospitalized in January 2005 when he slipped and fell on ice.

There is no presumption against a will made by a man of advanced age, nor can incapacity be inferred from an enfeebled condition of mind or body (Horn v Pullman, 72 NY 269 [1878]). Less capacity is required to make a will than to make other contracts, and the fact that an elderly person suffers from arteriosclerosis, (Matter of Coddington, 281 AD 143 [3d Dept 1952] aff'd 307 NY 181 [1954]), or depression, (Matter of Esberg, 215 AD2d 655, supra), does not negate testamentary capacity and does not raise an inference that the decedent lacked testamentary capacity. Indeed not even a diagnosis of progressive dementia in and of itself creates a triable issue of fact as to mental capacity (Matter of Friedman, 26 AD3d 723, supra).

The evidence presented by Objectant based on documentary evidence of the testator's physical condition and prescribed drug therapy from 2004 is the, "weakest and most unreliable kind of evidence", (Matter of Van Pattan, 215 AD2d 947, supra), and is insufficient to overcome Dr. Gendelman's affirmation and the attesting witnesses swearing that decedent appeared competent at the time he executed his will to raise an issue of fact concerning the testator's capacity to make a will (see Matter of Friedman, 26 AD3d 723, supra).

Moreover, Objectant in her own deposition testimony (Cross-Motion, Exhibit E) admits that: decedent always knew who his children were (p.43-44); that decedent "knew down to every penny" what his assets were and that she never had the impression that he didn't know what they were ( p.44); and that with regard to his physical condition until the last time she saw him he looked well (p.46-47). [*4]

Proponents have met their prima facie burden of establishing decedent had testamentary capacity at the time the will was executed. Objectant has failed to raise a triable issue of fact concerning decedent's testamentary capacity (Matter of DiCorcia, 35 AD3d 463 [2d Dept 2006]).

Undue influence is an affirmative assault on the validity of a will, and the burden of proof does not shift but remains on the party who asserts its existence (Matter of Kindberg, 207 NY 220 [1912]). To deny a will to probate based on undue influence, "an objectant must establish 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 [or her] free will and desire, but which he [or she] was unable to refuse or too weak to resist ' " (Matter of Fellows, 16 AD3d 995 [3d Dept 2005] quoting Children's Aid Socy. of City of NY v Loveridge, 70 NY 387, 394 [1877]).

There is no direct evidence presented by Objectant that undue influence was practiced upon decedent. She testified that to her knowledge neither Mark nor David Scher participated in preparing the will of July 2005, (Cross-Motion, Exhibit E, p.125). When asked in what way did Proponents coerce decedent into signing the will she responded, "I don't know. I wasn't there", (p.128).

While undue influence may also be proven through circumstantial evidence, this evidence must be of a significant nature ( id). If the circumstantial evidence offered would support conflicting inferences, a conclusion of undue inference cannot be made (Matter of Malone, 46 AD3d 975 [3d Dept 2007]). To establish undue influence the Objectant must identify the claimed acts constituting the influence and the times and places when and where such acts occurred ( Matter of Friedman, 26 AD3d 723, supra).

Objectant's supposition for her belief that undue influence was practiced on decedent derives from the fact that in the will at issue she receives only one third of his estate while in an prior will dated May 26, 2005 she received one half of his estate, and in an even earlier will dated December 23, 2003 she received two thirds of his estate. She surmises in her affidavit that decedent was in the custody of Proponents and Ann Scher (Mark Scher's wife) for the purpose of their arranging the divestiture of his assets to them. She alleges they exercised moral coercion over and against the decedent who was too weak, ill and old to resist their influences to the extent that he was incapable of rendering independent judgment on the disposition of his assets. Objectant claims a confidential and fiduciary relationship arose and existed between decedent and Proponents from their complete control, care and responsibility for decedent prior to the execution of the July 2005 will.

A change in testamentary intention, as bearing on the allegation of undue influence in procuring a will, may be an important circumstance but its force depends mainly upon its connection with associated facts (Horn v Pullman, 72 NY 269, supra). Here decedent's desire to reduce Objectant's bequest to her statutory elective share and increase that of Proponents is not inconsistent with the evidence that decedent was having marital difficulties and had left the marital home. These events readily explain the reduction in the bequest in the will made to his estranged wife as compared to the prior wills ( see Matter of Elco, 153 AD2d 860 [2d Dept 1989]).

The fact that the Proponents may have been in a confidential relationship with decedent is counterbalanced by the close family relationship and therefore no inference of undue influence arises (Matter of Zirinsky, 43 AD3d 946 [2d Dept 2007]). As no inference arises, an explanation [*5]for the bequest to Proponents is not required(Matter of Swain, 125 AD2d 574 [2d Dept 1986].

In order to create a presumption of undue influence in a confidential relationship involving a close family member, there must be evidence provided of facts or circumstances showing inequality or controlling influence (see Feiden v Feiden, 151 AD2d 889 [3d Dept 1989]). The time period between when decedent left the marital home and moved in with his son until execution of the will was approximately a month. A mere showing of opportunity and even of a motive to exercise undue influence does not present a triable issue of fact without evidence that undue influence was actually wielded (Matter of Fiumara, 47 NY2d 845 [1979]; Matter of Walther, 6 NY2d 49 [1959] ). A showing must be made that undue influence or fraud was actually exercised upon the decedent. Mere speculation that opportunity and motive existed to exert such influence is insufficient to raise a triable issue of fact (Matter of Bustanoby, 262 AD2d 407 [2d Dept 1999]).

Objectant has failed to making such as showing. She testified that to her knowledge Proponents had never threatened their father, nor would they (Cross-Motion, Exhibit E, p.114). And while in her affidavit she alleges decedent was in the their custody for the purpose of arranging the divestiture of his assets to them, in her deposition when asked what is her understanding as to why decedent was staying at David's house, she replied, "Maybe Sylvia [Mark's wife] felt she could give him care, or it was Mark's idea. I don't know.", (p.112).

In short, Objectant has failed to present any significant circumstantial evidence of undue influence. An inference of undue influence cannot be reasonably drawn from circumstances which are not inconsistent with a contrary inference (Matter of Walther,6 NY2d 49, supra), or from circumstances which can give rise to a contrary inference (Matter of Branovacki, 278 AD2d 791 (4th Dept 2000]).

The evidence here is entirely consistent with the inference that the reduced bequest to Objectant and the countervailing increased bequest to his sons was the product of the marital separation and her wanting a divorce. The testamentary plan is not an unnatural one or the result of an unexplained departure from a previously expressed intention of the decedent ( see Matter of Lamonica, 199 AD2d 503 [2d Dept 1993] {no circumstantial evidence of undue influence where decedent widower, had become estranged from daughter and was romantically involved with the proponent, the sole beneficiary under the will. Evidence was in no way inconsistent with the conclusion that the will expressed the voluntary intent of the testator}, compare Matter of Pennino, 266 AD2d 293 [2d Dept 1999], {proponent had both motive and opportunity to exercise undue influence and there was evidence she may have as she kept her marriage to testator a secret from testator's children and was instrumental in the expeditious execution of a new will three days after wedding and one month before testator died}). Here the evidence is in no way inconsistent with the assumption that the will expressed the voluntary intent of the testator, and does not satisfy the test that intervention and undue influence must be established by evidence that is not inconsistent with a contrary hypothesis (Matter of Walther, 6 NY2d 49, supra; Matter of Lamonica, 199 AD2d 503, supra).

Finally there is no evidence presented to support Objectant's allegation that the will was procured through fraud. To establish fraud it must be shown that the proponent knowingly made a false statement that caused decedent to execute a will that disposed of his property in a manner differently from what he would have without the statement (Matter of Colverd, 52 AD3d 971 [3d Dept 2008]). Objectant in her deposition in response to whether the Proponents ever told decedent any lies in order to induce him to sign the will of June 2005, stated, "I don't know that [*6]for a fact" and further stated that she had no information regarding same. (Cross-Motion, Exhibit E, p.114).

The one remaining issue in this case to be considered is: Does the fact that the will was drafted by Ann Scher, the wife of one of the beneficiaries, without anything more, create an issue of fact precluding the grant of summary judgment to Proponents.

The case which seemingly established this rule in the Second Department is Matter of Burke, 82 AD2d 260 [2d Dept 1981]. In a long opinion, replete with excerpts of trial testimony, the court quoted this passage from Matter of Elmore, 42 AD2d 240 [3d Dept 1973]," [w]here a will has been prepared by an attorney associated with a beneficiary, an explanation is called for (see Matter of Lamerdin, 250 App.Div. 133, 135 [293 N.Y.S. 967]), and it is a question of fact for the jury as to whether the proffered explanation is adequate.' (Emphasis added.)".

However, this is nothing more than a logical extension of the longstanding rule that where the attorney who drafts a will is a beneficiary an explanation for the bequest is required (Matter of Putnam, 257 NY 140 [1931] citing Matter of Smith, 95 NY 516 [1884]). This rule emanates from the fact that the attorney-client relationship is deemed a confidential relationship as the attorney has disparate power over the client. A bequest to the attorney in such circumstances raises an inference of undue influence which needs to be explained( id; Matter of Crissy, 35 AD3d 462 [2d Dept 2006]).

However, as indicated earlier, the inference that arises from a confidential relationship is counterbalanced by a close family relationship. Thus in the case of Matter of Herlihy, 18 AD2d 716 [2d Dept 1962] aff'd 13 NY2d 816 [ 1963], the court held no inference of fraud or undue influence was warranted solely by virtue of the fact that the attorney, who was the son of the testator, drafted the will of which he was a beneficiary and which excluded other family members ( see also Matter of Moskowitz, 279 AD 660 [2d Dept 1951] aff'd 303 NY 992 [1952], no presumption of undue influence arose from fact attorney-son-beneficiary assisted in drafting the will excluding a child of decedent, it was essential that undue influence be proved, not presumed).

In Burke, the court was confronted with the implication of two possible confidential relationships both involving Mrs. Miller, the operator of the nursing home in which Mr. Burke was a patient. Mr. Burke had devised his dwelling house to Mrs. Miller. There was, however, no close family relationship between Mr. Burke and Mrs. Miller to offset the inference of undue influence emanating from these confidential relationships. The first confidential relationship was that of caregiver-patient between Mrs. Miller and Mr. Burke, a relationship, the court noted, from which the greedy and the corrupt find considerable gain by overreaching. Indeed the facts revealed that the attorney who prepared the will had obtained the list of decedent's assets from Mrs. Miller. The second one which may have been implicated was that of attorney-client, if in fact Mrs. Miller's was associated with the attorney, of which no determination was made by the court as there was conflicting evidence as to who selected him.

In the proceeding before the Court, the close family relationship between decedent and the beneficiaries, counterbalances any inference of undue influence arising from the fact that the wife of one of the beneficiaries drafted the will, which inference normally arises when the attorney who drafted the will is associated with a beneficiary.

However while no inference of undue influence arises from a confidential relationship where there is a close family relationship between the beneficiary and the testator, if sufficient [*7]circumstantial evidence of the exercise of undue influence is presented an inference is raised irrespective of the close family relationship.

A recent case in this Department illustrative of these tenets is the case of Matter of Zirinsky 43 AD3d 946, supra. In it the objectants along with the guardian ad litem for objectant's children appealed a decree granting the proponent's motion for summary judgment dismissing the objections and admitting the will to probate. Objectants, the daughters of the decedent, alleged their brother Robert Zirinsky, the proponent of decedent's will, had exercised undue influence over decedent inducing her to depart from her longstanding plan which treated all three children equally, and to execute a new will where he would receive 50% of the family business and affiliated interests, and the objectants would receive 25% each. The guardian ad litem for the objectant's children contended that an inference of undue influence sufficient to require a trial arose from the evidence that proponent, an attorney and cotrustee with the decedent of trusts established for her benefit, was in a confidential relationship with the decedent and that he was involved with selecting the attorney who drafted the will and participated in the first meeting between the decedent and the attorney.

The court held the fact that proponent may have been in a confidential relationship with the decedent was counterbalanced by the closeness of the family and no inference of undue influence arose in these circumstances. The court indicated that undue influence may be shown by circumstantial evidence but it had to be of a substantial nature. There had been no showing that undue influence (circumstantial or otherwise) was actually exercised upon the decedent who although undergoing treatment for cancer was alert, strong minded, and financially, mentally and emotionally independent when she changed her will to favor the proponent who had actively managed the family business. The court affirmed the decree granting summary judgment and admitting the will to probate (see also Matter of Greenwald, 47 AD3d 1036 [3d Dept 2008]; summary judgment granted dismissing objections and admitting will to probate, no undue influence inferred where decedent lived with petitioner, her daughter, for eight months during which time will and codicil executed and petitioner was the one who contacted the family attorney to prepare both; compare with Matter of Piago, 53 AD3d 836, supra; while the presumption of undue influence emanatingfrom proponent's procuring of the attorney was counterbalanced by her familial relationship with decedent, there existed sufficient circumstantial evidence of undue influence to raise issue of fact).

In the proceeding before the Court, as indicated earlier, there has been no showing by direct or circumstantial evidence that undue influence was practiced on decedent. Objectant has failed to allege any facts that would demonstrate that decedent's actions and decisions were anything but voluntary. Where the contention that the will results from fraud or undue influence is supported by only speculative allegations and not by evidence demonstrating a triable issue, summary judgment is appropriate (Matter of Brower, 4 AD3d 586 (3d Dept 2004]).

Objectant's motion for summary judgment is denied.

Proponents' cross-motion for summary judgment seeking an order dismissing with prejudice the objections of Objectant to the probate of the will of Harold Scher dated July 12, 2005, granting the petition for probate, and granting them letters testamentary is granted in its entirety.

The Court is satisfied that the propounded instrument is genuine and was validly executed (SCPA §1408) and at the time of the execution, decedent was competent in all respects to make a will and that the decedent was not under any restraint or undue influence (EPTL §3-[*8]2.1). The genuineness of the will and the validity of its execution having been proven to the satisfaction of the Court, the instrument dated July 12, 2005 is admitted to probate. Letters testamentary shall issue to Mark Scher and David Scher upon duly qualifying according to law.

This constitutes the decision and order of the Court.Settle decree.

_____________________

Dated: Brooklyn, New YorkHON. Diana A. Johnson

September 9, 2008.S u r r o g a t e