Allan B. Rappleyea, Esq., the proponent of the will of Susanne P. Boyd, which was executed on October 1, 2008, moves pursuant to CPLR 3211(a)(1) and (7)(b) and (c) and, in the alternative, for summary judgment dismissing the objections to probate which were filed by Allen S. Brown, the decedent's brother.

Boyd died on October 17, 2008, and her executor offered the will to probate by petition dated October 28, 2008 (see Gifford affirmation, Ex B). Boyd's brother filed objections to the will claiming that the proffered instrument was not his sister's last will and testament; that the alleged will was not executed as required by statute; that the purported will was procured by duress and undue influence; and that his sister lacked testamentary capacity to make a will on October 1, 2008 (id. at Ex C). In support of the objections, decedent's friend Catherine Meddaugh submitted an affidavit claiming that decedent lacked capacity to make a will from March 2006 until her death (id. at Ex D). In particular, Ms. Meddaugh stated that she began caring for decedent in March 2006, when she suffered a "severe bleeding stroke" (id. at ¶4). Ms. Meddaugh believed that decedent was "organically impaired, suffering from severe brain damage, with no recall, or memory, no judgment, no competency and no understanding of reality" (id. at ¶9). She also gave a list of twelve"hair raising" medications which she claimed decedent had been taking since mid-March which "severely impaired" decedent's mental process (id. at ¶¶12, 16). Meddaugh submitted a supplemental affidavit describing a list of twenty medications which she claimed decedent took on a daily basis for a year preceding her death (see Bittner affirmation, Ex D).

Both objectant and Meddaugh are each a beneficiary of a specific bequest in the propounded instrument.

The proponent of the will now moves to dismiss the objections to probate. In support, proponent submits an affidavit describing his relationship with decedent and her husband and their estate planning over the course of almost a decade.

Proponent first met the decedent and her husband in April, 1999 when they came to his office to discuss estate planning (see Rappleyea affidavit, Ex J). After the meeting, proponent sent them a draft trust document which provided that beneficiaries would be named at a later date (id. at p 3 of proposed trust declaration). In March, 2002, proponent again met with the Boyds. [*2]After the meeting, proponent prepared health care proxies and powers of attorney (id. at ¶¶22, 23 and Ex K). At their next meeting in November, 2002, the Boyds executed the health care proxies and powers of attorney and inquired about how to leave their assets to charity after they both had died (id. at ¶24).^[FN1] Proponent sent them a form will which contained language for setting up a charitable foundation (id. at Ex M). In March, 2004, proponent again met with the Boyds. Darrell Boyd's health was failing, and they wanted to discuss estate planning. They had no children, loved animals, but still did not designate a beneficiary (id. at ¶26).

Darrell died intestate in November, 2005. A month later, decedent met with proponent to discuss her estate. She expressed at that time that she did not want her brother to be her beneficiary. Rather, given her and her husband's fondness for animals, she wanted to leave her entire estate to the ASPCA and the National Wildlife Fund. She specifically requested that the money should not be used for administration costs, but for the care of the animals and research. She requested that proponent be the executor and his father the alternate executor. In addition, she requested that proponent be her primary power of attorney now that her husband was deceased (id. at ¶27).

Proponent sent a will and revised power of attorney in January, 2006, but before it was executed, proponent suffered a mini-stroke and was hospitalized in March (id. at ¶¶28-30).Proponent visited decedent in the hospital, and she asked to sign the will and a revised power of attorney. Neither decedent's health care proxy, nor her brother's wife, who were both at the hospital, nor any medical personnel expressed any concerns to proponent about decedent's capacity to make a will. The decedent understood what she was doing and the consequences of dying intestate. On March 21, 2006, the will was executed in accordance with the required statutory procedure. Proponent supervised the will execution and he and an employee of proponent's law firm witnessed the will signing (id. at ¶¶29 - 32). As of this date, proponent had never heard the name Catherine Meddaugh (id. at ¶32).

In May 2006, proponent met with decedent at her home because she wanted to make some specific legacies in her will and stated she would be in touch after she had made some decisions (id. at ¶33). They met again on October 26, 2007 when decedent advised proponent that she wanted to make a series of gifts to certain people and change her health care proxy to make Catherine Meddaugh the primary agent. She also expressed concern that her animals be provided for after her death, and she wanted to talk more about establishing a foundation for animal welfare (id. at ¶34).^[FN2] Proponent sent decedent a draft will, and, during the next several months, decedent made several revisions to the draft, which included making handwritten notes on the draft and calling proponent's law office on March 24, 2008 to increase the bequest to Catherine Meddaugh from $10,000 to $50,000 (id. at ¶¶35 - 38; Exs Q, S, T). [*3]

On April 2, 2008, the decedent's second will was executed at her home in accordance with the proper statutory procedure. Proponent supervised the will execution, and he and his assistant witnessed the will signing (id. at ¶39, Ex U). Decedent made specific bequests to certain people, including her brother ($5,000) and Catherine Meddaugh ($50,000) and left the residuary estate to the Susanne P. Boyd and Darrel Boyd Foundation for Animal Welfare. She named proponent as executor and trustee of the foundation and executed a disclosure statement of attorney-executor (id. at Ex U). Again, no one expressed any concern as to decedent's capacity to make this will.

In June, 2008, decedent called proponent to further discuss her will and a lifetime transfer of money to Ms. Meddaugh. They met at decedent's home in July and had several discussions about the changes. Decedent expressed a desire to help Ms. Meddaugh financially because she was going through a divorce and in default on her mortgage payments. She wanted to give her $50,000 but did not know whether she wanted to loan or gift the money (id. at ¶¶ 6-8). Decedent was concerned about Ms. Meddaugh's ability to ever pay her back, but requested that proponent draft a promissory note, which he mailed on July 31, 2008 (id. at ¶8; Ex B). Proponent advised decedent that she could forgive any loan upon her death, decedent agreed with this change, and a provision to forgive the debt replaced the specific legacy of $50,000. A revised will incorporating this change and other changes in specific bequests was mailed to decedent on September 15, 2008 (id. at ¶¶ 8-9; Ex C). There was no change made to the residuary estate (id. at Ex C).^[FN3]

On October 1, 2008, decedent drove herself to meet proponent at the Bank of Millbrook to discuss and execute her will and discuss the promissory note. The will was witnessed by proponent and an employee of the Bank who both described the will execution process in their [*4]respective depositions which were taken pursuant to SCPA §1404 (id. at Exs D and E). Both depositions describe the execution process which proponent supervised. Decedent reviewed the will, executed it before the two witnesses, declared it to be her will and requested that it be witnessed, which it was in decedent's presence (id.). The self-executing affidavit of attesting witnesses was then notarized (id. at Ex E, p 15).

Decedent and proponent also discussed the promissory note that day as decedent thought it was too complicated for Ms. Meddaugh to understand. Proponent wrote out a simple IOU on a piece of paper which decedent took with her (id. at ¶11).

Decedent died sixteen days later.

Throughout the ten years that proponent tended to decedent's estate planning issues, including the time she was hospitalized, proponent found her "lucid, alert, [and that] she knew who she was and what she intended." Although she needed assistance after her mini-stroke, "before her death she was writing checks, paying her own bills, reviewing her estate planning, attending to her own medical needs and living on her own" (id. at ¶40). In support, proponent produces copies of checks signed by decedent for a period of over three months from June 29 through October 10, 2008, for her everyday living expenses including hair care, doctors visits, utility bills and payments to the groundskeeper (id. at ¶16 and Exhibit G). In fact, decedent called a mail order company on October 4, 2008 to cancel a purchase (id. at ¶16, Ex I). Ms. Meddaugh told proponent that the remaining purchases from that mail order were Christmas presents from decedent to her which she asked to keep on the very day decedent died (id. at ¶15).

In further support of the motion to dismiss objections, proponent submits an affidavit of Catherine Meddaugh in response to a subpoena duces tecum (see Gifford affidavit, Ex E). In this affidavit, proponent claims she was decedent's caregiver from about March, 2006 to just before her death. Decedent signed a check each week to pay Ms. Meddaugh for her work at the rate of $10 an hour. On the advice of her financial advisor, decedent instructed Ms. Meddaugh not to declare the compensation as income on her tax returns. Ms. Meddaugh followed her advice and did not declare the income on her tax returns. In addition, decedent paid Ms. Meddaugh's divorce attorney the sum of $2,500, which she claims she worked off with extra hours assisting decedent in her home. On July 28, 2008, decedent wrote out a check in the amount of $50,000 and sent it to Ms. Meddaugh so she could pay off her husband and reinstate her mortgage (id.). Decedent also gave Ms. Meddaugh "modest" Christmas presents (id.) and sent her several cards over the years (id. at Ex F).

During objectant's deposition, he testified that he lived in Texas and had only seen his sister on four occasions during the three years prior to her death (id. at Ex G). When he and his wife visited decedent in New York, they did not stay at her house. Ojectant and decedent spoke on the phone once a month, but, according to objectant, decedent's thoughts were not clear on these occasions, she was difficult to understand and forgetful (id. at pp 12, 18-19).

Objectant admitted that he was not claiming that decedent did not sign her will (id. at p 12). He also admitted that he was not present during the will signing on October 1, 2008 (id. at p 17). He further admitted that his sister never discussed her will or her intentions of disposing of her property with him (id. at pp 20, 28-29), but claimed that Catherine told him that his sister wanted her to have the jewelry (id. at p 25). Even though decedent knew who her brother was, he did not believe that "she was cognizant of almost anything that was in her daily life" (id. at p [*5]21). He claimed "she was not capable of taking her medication the way she should"... and [e]nd[ed] up double dosing in [s]ome cases" (id.). However, he admitted that he had never witnessed his sister double dosing (id.).

When asked the basis for his claim of undue influence, objectant responded "probably [proponent]" because, even though he is not a beneficiary under the will, "in the end he will probably benefit more than anyone" (id. at pp 27-28).

In further support of the motion, proponent submits five affidavits of four treating medical professionals and decedent's financial adviser. The financial adviser averred that he personally knew decedent and her husband. He was their personal financial advisor from 2000 until 2005 when Darrell died, and he continued on as decedent's advisor until her death in October, 2008. After decedent suffered a stroke, Catherine Meddaugh assisted decedent in writing checks. For a while, the advisor's wife assisted decedent in paying her bills. However, by 2008, decedent was able to resume control of her financial affairs (see Rae affidavit, see also copies of checks annexed as Exhibit G to Rappleyea affidavit).

During 2008, decedent discussed estate planning with her financial advisor on many occasions and expressed a clear desire to provide for the care of animals after she died. She also discussed with her advisor her desire to help Catherine Meddaugh in the summer of 2008 because she was in financial trouble. Decedent was aware that she had made a bequest to Catherine of $50,000, but did not want her to have to wait until she died to get the money (see Rae affidavit).

Decedent's therapist treated her on thirty-nine occasions from April 25, 2006 until September 8, 2008 for grief counseling and depression. Despite her mental state after losing her husband, the therapist opined that decedent was capable of understanding the nature and extent of her property, the natural objects of her bounty, and the purpose of a will (see Weyer-Dolce affidavit).^[FN4]

Decedent's primary physician and his licensed family nurse practitioner submitted affidavits in support of probate. Decedent was treated by her primary care physician for over twenty years. After she suffered a "mini-stroke" in 2006, she was still aware of who she was, who her doctor was and why she was seeing him. While decedent suffered from certain medical conditions over the years, she managed her various ailments and medications well. The last time he treated decedent was on March 6, 2008, and she was "alert, fluent, cooperative and well-oriented" (see Tesoriero affidavit).

Decedent's treating physician referred her to a doctor for pain in her lower back. This pain management and rehabilitation doctor saw decedent on February 12, March 11, September 4, September 18, 2008 and on October 16, 2008, the day before she died (id. at Ex 1). On each of the follow-up visits, including the day before she died, the "neuro" exam described her as "alert, awake, and oriented" (id.). [*6]

The licensed family nurse practitioner who worked for decedent's primary care doctor had known decedent since 1996. She last saw decedent four days before she died and described her as alert and well-orientated (see Gold affidavit).

After her stroke in March, 2006, decedent saw an optometrist on several occasions between November, 2006 and October 2, 2008, two weeks before she died. Decedent "was experiencing some difficulty with her vision, which included some dryness in her eyes" (see Earle affidavit at ¶¶2-4; Ex 1). However, decedent was able to see and read, and, although accompanied by Catherine Meddaugh, "was quite capable and in fact listened to me and discussed with me my observations" (id. at ¶6). On October 4, 2008, decedent advised her eye doctor over the phone that she recently had a CAT scan which was normal (id. at ¶5; Ex 2).

In opposition to proponent's motion, objectant avers that decedent had an abusive first marriage over forty years ago and her first husband controlled her by getting her addicted to prescription drugs. Objectant maintained that decedent saw many psychiatrists and described a "42-year pattern of drug abuse, overdoses, multiple mental break downs, untold physical ailments and several attempted suicides" (Boyd affidavit at ¶20). Objectant and decedent did not have a close relationship, but re-established a long distance relationship in 1986 when their father was ill. Objectant also describes his wife's relationship with decedent.^[FN5] In particular, objectant relays his wife's description of decedent in March, 2006 after she suffered a stroke and her opinion that she lacked capacity to make a will (id. at ¶39). From then on, objectant states that decedent needed constant care and her "greatly diminished mental state, inability to comprehend even simple matters and excessive drug use continued right up to the day she died. There was no respite from it or lucid moments" (id. at ¶55). Objectant gave a few examples of decedent's forgetful behavior during his visits and phone calls.

At her deposition, Catherine Meddaugh described herself as an employee of decedent who took care of her from March, 2006 through October, 2008 (see Bittner Affirmation, Ex B at pp 6-7).

She also reiterated what she had previously averred in her response to proponent's subpoena duces tecum: i.e., that she and decedent agreed to $10 an hour which decedent paid by check; that based on the advice she received from her financial advisor, decedent told Ms. Meddaugh not to declare the money as income (id. at pp 43, 51, 55-56); that in 2007 decedent gave her $2,500 to pay to her divorce attorney and even went with her to meet with the attorney; that on July 28, 2008, decedent wrote out and signed a check for $50,000 to Ms. Meddaugh to pay off her husband in the divorce action and to reinstate her mortgage, and that both understood the transaction to be a gift (id. at pp 8 - 10, 12, 14, 16). She also reiterated that during 2006, 2007 and 2008, decedent gave "little gifts" to Ms. Meddaugh for birthdays and Christmas. In fact, decedent had already ordered Ms. Meddaugh's December, 2008 Christmas gift before she died (id. at pp 62, 68).

At her deposition Ms. Meddaugh stated that in 2006, decedent's financial advisor's wife wrote out the checks and decedent would sign them, and that in 2007 either the advisor's wife or Ms. Meddaugh would write out the checks. However, they "backed down because [decedent] [*7]said she wasn't happy with somebody else writing them out" (id. at 15-16, 54-55).

In September, 2008, decedent was cleaning out the downstairs in case someone needed to move in to take care of her. Decedent asked Ms. Meddaugh's father to remove her late husband's gun pieces from the home, as he was a licensed gun dealer (id. at 19-21).

On the day she died, decedent had an appointment with a plastic surgeon. However, she was feeling sick and asked Ms. Meddaugh to cancel the appointment for her (id. at pp 22, 65). One week prior to the appointment, Ms. Meddaugh filled out a patient registration form on decedent's behalf. Decedent corrected the spelling of her name on these forms, initialed certain sections and signed the form (id. at pp 25-31 and Estate Ex 5). In filling out the requested information, Ms. Meddaugh checked that decedent did not have any emotional disorders (id. at p 28 and Estate Ex 5). Decedent also acknowledged receipt of the plastic surgeon's notice of privacy practices two days before she died (id. at pp 30-31 and Estate Ex 5). In addition, Ms. Meddaugh listed ten medications that decedent was taking as of October 8, 2008 (id. at Estate Ex 5).

Ms. Meddaugh admitted she did not have any medical degrees or training to support her conclusions that decedent was over-medicated and lacked capacity to execute a will (id. at pp 57-58).

Ms. Meddaugh claimed that she was supposed to go with decedent on the day of the will signing, but "somebody called and switched the appointment to an earlier time," and she was not able to go earlier. Decedent drove herself to the appointment (id. at p 71).

Dr. Shah M. Maniruz Zaman, a cardiologist, reviewed decedent's medical records and reports, hospital records, pharmacy logs, Meddaugh's affidavit, supplemental affidavit and deposition testimony. Based on his review, Dr. Zaman concluded that "[t]aking all these drugs on a regular basis for sometime such as Mrs. Boyd did would have significant and devastating effects on her mental status and would interfere with proper thinking abilities. They would alter Mrs. Boyd's mind and cause her to be incompetent in making rational decisions, including making [a] will" (Zaman affirmation ¶13).

Dr. Zvi J. Herschman, a physician specializing in anesthesiology, pain management, critical care/trauma, and toxicology evaluations, reviewed the same documents as Dr. Zaman and concluded that decedent "lacked the capacity to understand the ... extent of her assets and the objects of her bequests" (Herschman affirmation ¶11). In addition, if decedent had been taking the prescription drugs as set forth in the pharmacy printouts, she would have been "wholly, absolutely and completely unable to understand and comprehend the nature of making a will and she could not understand what she was doing [on October 1, 2008]" (id. at ¶12).

In reply, proponent points out that no one at the hospital, including objectant's wife, suggested that decedent was incompetent. In addition, decedent's doctor characterized the stroke as a mini-stroke and there is no medical support for objectant's characterization of the stroke as "massive." Further, neither objectant nor Ms. Meddaugh was at the hospital when proponent was there in March, 2006, and no affidavit was submitted by objectant's wife who was present at the hospital.

Moreover, decedent never referred to Ms. Meddaugh as her care giver until after decedent died. Indeed, Ms. Meddaugh listed herself as decedent's friend on the patient registration form she filled out on October 8, 2008 (see Rappleyea affidavit ¶12 and Bittner Affidavit, Estate Ex 5 [*8]annexed to Ex B).

Linda Schaaf, an employee of proponent's law firm averred that decedent's appointment to sign the will was for 9:30 a.m. on October 1, 2008. When decedent made the appointment, she informed Ms. Schaaf that Ms. Meddaugh would be coming with her to discuss the promissory note. Two days before the appointment, decedent called to say that she was not sure whether Ms. Meddaugh would be able to come. The appointment time was never changed (see Schaaf reply affidavit and Exs 1 and 2).

It is well-settled "[t]o 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 Assoc. 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 (see Albouyeh v County of Suffolk, 96 AD2d 543 [2d Dep't 1983], aff'd 62 NY2d 681 [1984]). Bare conclusory allegations, expressions of hope or unsubstantiated assertions are insufficient (see Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).

It is also well-established that the initial burden in a probate proceeding is upon the proponent to satisfy the court as to the genuineness of the will, the validity of its execution, the testamentary capacity of the decedent and her understanding of the purported will (see In re Stegner's Will, 253 AD 282 [2d Dep't 1938]).

EPTL 3-2.1 provides the specific formal requirements for the execution and attestation of wills. A proponent of a will offered for probate has the burden of proving by a preponderance of the credible evidence that the instrument was properly executed (see In Re Will of Falk, 47 AD3d 21, 26 [1st Dep't 2007], lv denied 10 NY3d 702 [2008]; see also In re Stegner's Will, supra). Where an attorney-draftsperson has supervised the propounded will's execution, there is a presumption of regularity that the will was properly executed in all respects (see Matter of James, 17 AD3d 366, 367 [2d Dep't 2005]). In addition, the self-executing affidavit of the attesting witnesses creates "a presumption that the will was duly executed" and also constitutes "prima facie evidence of the facts therein attested to by the witnesses" (In re Clapper, 279 AD2d 730, 731 [3d Dep't 2001]).

Proponent has met his burden by establishing that the will's execution was supervised by the attorney-draftsman and that the will's execution complied with EPTL 3-2.1 (see Rappleyea affidavit, Ex. F); proponent's affidavit in support of the motion for summary judgment (id. at ¶10); and the deposition testimony of the attorney-draftsman and attesting witnesses (id. at Ex D, pp 10-15 and Ex E, pp 7-15). Objectant admitted that he was not at the will signing and has not presented any factual basis to rebut the presumption of regularity in support of his conclusory assertion that proponent did not comply with the statutory procedure (see In re Estate of Bustanoby, 262 AD2d 407 [2d Dep't 1999]).

Objectant has the burden of establishing that the propounded instrument is the result of undue influence (see In re Kindberg's Will, 207 NY 220 [1912]; Estate of Rosenwasser, 2006 NY Misc LEXIS 5414). Undue influence is never presumed (In re Morrison's Will, 270 AD 552 [1st Dep't 1946], affd 296 NY 652 [1946]). Objectant must prove not only that the alleged perpetrator had the motive and opportunity to exercise undue influence, but that the undue [*9]influence was actually exercised (see In re Fiumara's Estate, 47 NY2d 845 [1979]). Objectant's contention that based on "everything that's happened" it was "probably her attorney" who exercised undue influence because "[h]e seems to be the only one that will benefit from this ... by virtue of becoming a trustee of a foundation" (Rappleyea affidavit, Ex G at p 27) is wholly conclusory and speculative and, therefore, insufficient to defeat summary judgment (see In re Bustanoby, supra). Moreover, even assuming, as objectant contends, that decedent wished Catherine to accompany her to the will signing (id. at 24), objectant has not raised an issue of fact that the decedent went alone due to any outside influence.

The proponent of a will has the burden of proof regarding whether the testator possessed testamentary capacity. The proponent must establish that 1) decedent understood the nature and consequences of executing a will; 2) decedent knew the nature and extent of the property he was disposing; and 3) decent knew the natural objects of her bounty and her relation with them (see Matter of Kumstar, 66 NY2d 691 [1985] rearg denied 67 NY2d 647 [1986]). Notwithstanding proponent's burden, decedent is presumed sane and to have sufficient capacity to make a will, until the contrary is established (see Matter of Betz' Will, 63 AD2d 769 [3d Dep't 1978]). Less capacity is required to make a will than to make other contracts (see Matter of Coddington, 281 AD 143 [3d Dep't 1952], affd 307 NY 181 [1954]; In re Will of Petix, 15 Misc 3d 1140(A) [Surr Ct, Monroe County 2007]). Moreover, "[i]t has long been recognized that old age, physical weakness and senile dementia are not necessarily inconsistent with testamentary capacity as long as the testatrix was acting rationally and intelligently at the time the [instrument] was prepared and executed" [citations omitted] and "evidence relating to the condition of the testatrix before or after the execution is only significant insofar as it bears upon the strength or weakness of mind at the exact hour of the day of execution [citation omitted]" (Matter of Hedges, 100 AD2d 586, 588 [2d Dep't 1984], appeal dismissed 63 NY2d 944 [1984]; see also In re Estate of Friedman, 26 AD3d 723 [3d Dep't 2006], lv denied 7 NY3d 711 [2006] [proof that a decedent suffered from progressive dementia when will executed not necessarily inconsistent with testamentary capacity]).

Proponent has presented overwhelming evidence of decedent's testamentary capacity. The uncontroverted evidence establishes that decedent was actively planning with proponent the disposition of her estate over the course of almost a decade. The propounded instrument is consistent with her original charitable intent which pre-dated her stroke and is consistent with her prior wills. Indeed, the first will left the entire estate to charity. The latter two wills were executed after careful deliberation and consultation with decedent's attorney. The changes decedent made demonstrate reflection and thought about the disposition of her estate as evinced by the numerous revisions she made pursuant to discussions with counsel. In addition, the change regarding Ms. Meddaugh's bequest demonstrates decedent's recognition that Ms. Meddaugh's financial situation required immediate attention and decedent's wish that Ms. Meddaugh receive financial help now rather after her death.

Decedent understood on the day she signed her will that the promissory note drafted by her attorney would be too complicated for Ms. Meddaugh to understand. In addition, in the few months before her death, decedent was writing out her own checks. She anticipated that someone might have to move in with her and was cleaning out the downstairs. Decedent was alert enough to correct the misspelling of her name on medical forms the week before she died. [*10]Finally, on the day she died, decedent realized she was too sick to keep a doctor's appointment and asked Ms. Meddaugh to cancel it. These undisputed facts evince a person with sufficient mental capacity to execute a will.

Catherine Meddaugh never complained or expressed any concern during the period of time that decedent was paying her a weekly salary, paying for her divorce lawyer, lending, or assuming Meddaugh's allegations true, giving $50,000 to pay off her husband and save her home from foreclosure. Indeed, decedent wrote out a check of $50,000 just two months before she executed her last will and during these two months was actively discussing changes to her will with proponent and contemplating her bequest to Ms. Meddaugh.

Ms. Meddaugh's affidavits and deposition testimony are riddled with contradictions. While Ms. Meddaugh claims that decedent lacked capacity to make a will or even to give her $50,000, she never expressed any concern at the times the wills were executed, nor did she refuse the $50,000. In addition, although a self-proclaimed care-giver, Ms. Meddaugh never raised the issue of excessive drug use with any of decedent's many doctors. Moreover, Ms. Meddaugh admits that she has no medical experience whatsoever to support her claim that decedent took so much medication that she was mentally impaired. Further, Ms. Meddaugh's supplemental affidavit claiming that decedent was on twenty medications contradicts her prior affidavit regarding the number of medications decedent was taking twelve and contradicts the most recent medical record in which she stated that decedent was taking ten medications. Ms. Meddaugh admitted filling out this medical form only one week before decedent's death. Indeed, Ms. Meddaugh's earlier affirmation is riddled with conclusory assertions, lacks any evidentiary foundation and contradicts her later deposition testimony and supplemental affidavit. As such, it is insufficient to defeat summary judgment (see e.g. Rosenblatt v Venizelos, 49 AD3d 519 [2d Dep't 2008][belated attempt to avoid consequences of earlier admission by raising feigned issue was insufficient to defeat summary judgment motion]).

Moreover, there are no medical records which support objectant's and Ms. Meddaugh's claim regarding mental capacity. Decedent's medical records reveal a myriad of medical conditions including her mini-stoke, chronic lower back pain and gastro-intestinal problems. None of the records submitted on this motion indicate any brain damage or mental issues (see Bittner affirmation, Exs F and H). Proponents submit four affidavits by treating medical professionals attesting to decedent's mental capacity (see Matter of Friedman, supra [no material issue of fact as to mental capacity raised where, even though decedent diagnosed with progressive dementia, two professionals opined that decedent was competent to sign his will and attesting witnesses swore that decedent appeared competent at the time he executed his will]).

The doctors' affidavits submitted in opposition to the motion are insufficient to raise a triable issue of fact. Indeed, neither doctor was a treating physician, neither doctor examined decedent and neither was ever involved in any way in the medical history of her case. Nor did either doctor confer with any of decedent's treating physicians. Rather, these doctors merely reviewed decedent's medical records, purported printouts of decedent's medications, and Meddaugh's affidavits and deposition testimony. "Similar expert opinion evidence has been described as the weakest and most unreliable kind of evidence'" (Matter of Estate of Van Patten, 215 AD2d 947, 949 [3d Dep't 1995], lv denied 87 NY2d 802 [1995] quoting Matter of Will of Slade, 106 AD2d 914, 915 [4th Dep't 1984]; see also Matter of Tracy, 221 AD2d 643,[2d Dep't [*11]1995], lv denied 87 NY2d 811 [1996] [speculative expert testimony should not be entitled to any weight]).

Objectant's reliance on Videnovic v Goodman (54 AD3d 937 [2d Dep't 2008]) is misplaced. Videnovic is a medical malpractice case where conflicting opinions of medical experts on the issue of good and accepted medical practices involving the course of patient care created a triable issue of fact.^[FN6] Here, in contrast, the issue in mental capacity in a probate proceeding. The law is well-settled in this regard that speculative medical evidence is without probative value.

The pharmacy records objectant submits in support of his contention that decedent was addicted to prescription medication are not in compliance with CPLR R4518, and, therefore do not create a triable issue of fact. In any event, even if these records were competent, without more, they are insufficient to raise a triable issue of fact as to testamentary capacity on October 1, 2008.

Although claiming years of addiction to prescription drug medication and instability, objectant rarely saw his sister, admitted that she never discussed her wills with him and indeed was not present during any of the time period surrounding the signing of each of the three wills. Objectant further claimsthat decedent's addiction to prescription drugs "would start a 42 year pattern of drug abuse, overdoses, multiple mental break downs, untold physical ailments and several attempted suicides" (Brown affidavit in opposition ¶20) are wholly unsupported by any competent medical evidence. Objectant, like Ms. Meddaugh has no medical qualifications to render any medical opinion about decedent's capacity (see In re Langbein's Will, 25 AD2d 681 [2d Dep't 1966] [aside from interest lay witness may have had in helping objectant, his testimony was weak in itself and was decimated by fourteen witnesses who worked with, dealt with and communicated with decedent about the time instrument was executed]).

Moreover, neither objectant nor Ms. Meddaugh was present at any of the will signings, and objectant has not presented any competent evidence by a party who was at any of the will signings which challenges the attorney-draftsman-subscribing witness who knew decedent for almost a decade and who supervised the will executions on all three occasions and the testimony of the second witness to the October 1, 2008 will execution (see Estate of Rosenwasser, 2006 NY Misc LEXIS 5414 [attesting witnesses executed affidavits contemporaneously with the will execution in which they state that decedent was of sound mind, providing further proof of testamentary capacity]).

On a motion for summary judgment, the court must determine whether the factual issues presented are genuine or unsubstantiated. If the latter, summary judgment should begranted (see Prunty v Keltie's Bum Steer, 163 AD2d 595 [2d Dep't 1990]). In light of the overwhelming competent evidence of decedent's testamentary capacity and the lack of competent evidence [*12]which raises a genuine issue of fact, the court grants proponent's motion for summary judgment, and the objections are dismissed. The subject instrument dated October 1, 2008 is hereby admitted to probate as the last will and testament of Susanne P. Boyd and letters testamentary as well as letters of trusteeship shall issue to Allan B. Rappleyea, who may qualify thereunder.

The foregoing constitutes the decision of the court.

Counsel for the proponent is directed to submit a decree on notice consistent with the foregoing within ten (10) days from the date of this decision.

Dated:Poughkeepsie, New York

June 3, 2010

ENTER

_____________________________

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

TO:

060210 decision & order