Alyssa Hellman, the nominated executor in an instrument dated September 18, 2003 purporting to be the decedent's Last Will and Testament, moves for summary judgment dismissing the four objections of Ellen Engelhardt, the decedent's daughter and sole distributee. The instrument leaves the decedent's entire estate to the petitioner, his friend of 16 years, and in the event that she predeceased him, then to his daughter.

Summary judgment should be granted in contested probate proceedings where the objectant fails to raise any triable issues of fact (See: Matter of Coniglio, 242 AD2d 901; Matter of Parravani, 211 AD2d 965). The objectant opposing summary judgment must assemble and lay bare affirmative proof that her claims are real and capable of being established at trial (See: Stainless, Inc. v Employers Fire Ins., 69 AD2d 27). The objectant is to be afforded every favorable inference that may be drawn from the evidentiary facts alleged (see, McArdle v M & M Farms, 90 AD2d 538). General, conclusory and unsupported allegations, however, are insufficient to defeat a motion for summary judgment (See: Iselin & Co. v Mann Judd Landau, 71 NY2d 420).

The first objection alleges that the propounded instrument is not an original document and that [*2]the petitioner has not established that an inter vivos trust was not revoked.

Objectant claims that the decedent's signature on the instrument is a forgery. Objectant relies on a social worker's progress notes dated the day before the instrument was executed which indicate that the petitioner reported that the decedent "had fallen and cannot walk". Objectant claims that this contradicts the testimony of the attesting witnesses that the testator walked into the law office where the will was executed. [*3]

Objectant reasons that this proves that the person who signed the instrument as testator was not in fact her father.

The Court finds that such speculation is insufficient affirmative proof to raise a material issue of fact as to the genuineness of the decedent's signature. The Court further finds that the branch of the first objection alleging that the petitioner has not established that an inter vivos trust was not revoked is not relevant to the issue of the probate of the proffered instrument. Furthermore, objectant's contention that EPTL 7-1.17 mandates that the instrument must revoke the decedent's inter vivos trust is without basis in law or fact.

Accordingly, the branch of the motion for summary judgment dismissing the first objection alleging that the instrument is not an original document and that petitioner has not established that an inter vivos trust was not revoked is granted.

The second objection alleges that the decedent lacked the requisite testamentary capacity to execute a will on September 18, 2003.

Testamentary capacity is evidenced by three factors: whether the decedent understood the nature and consequences of executing a will, whether the decedent knew the nature and extent of his property, and whether the decedent knew those who would be considered the natural objects of his bounty and his relations with them (In re Estate of Slade, 106 AD2d 914).

Petitioner has set forth a prima facie case of testamentary capacity. The petitioner has submitted affidavits of attesting witnesses executed after the date of the instrument which support her position that the decedent had testamentary capacity at the time he executed the instrument. The testimony elicited by the objectant at the SCPA 1404 examinations of the subscribing witnesses further supports a finding that decedent possessed testamentary capacity on September 18, 2003.

In addition the objectant herself admits in her deposition that the decedent did not want to leave her his cooperative apartment. A review of the record also shows that the apartment was bequeathed to the petitioner in a prior will dated in 1997. The decedent's shares in a residential cooperative apartment corporation and the appurtenant proprietary lease comprise the bulk of the decedent's estate.

In support of her contention that the decedent lacked testamentary capacity, the objectant has submitted a social worker's progress notes dated September 10, 2003, eight days before the date of the execution of the instrument. These notes indicate that the petitioner and the decedent met with a social worker at a veterans' hospital. The notes reflect that it was then reported to the social worker that the decedent is forgetful, burns pots when he uses the stove, suffers from Parkinson's disease, and has two cats which contribute to the untidiness of the home. The notes also report that the decedent was diagnosed with dementia, although they do not indicate who made these diagnoses. The progress notes reflect that later that same day, a social worker from Jewish Association of Services for the Aged (JASA) saw the decedent and that he refused home [*4]care at that time.

Viewing the facts in the light most favorable to the objectant, a dementia diagnosis and testamentary capacity are not mutually exclusive. Dementia, in and of itself, is not proof of lack of capacity (Matter of Friedman, 26 AD3d 723; In re Ruso, 212 AD2d 846). Dementia does not remove the possibility that a decedent could have days where he functions well. In fact, 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; In re Hedges, 100 AD2d 586). This can occur even contemporaneously with an ongoing diagnosis of dementia (Matter of Friedman, supra).

The Court finds that the evidence provided by the objectant fails to set forth facts sufficient to raise an issue of fact with regard to the decedent's testamentary capacity at the time of the execution of the instrument.

Accordingly, the branch of the motion for summary judgment dismissing the second objection alleging lack of testamentary capacity is granted.

The third objection alleges that the instrument was procured by undue influence practiced upon the decedent.

To establish undue influence, the objectant must show 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). The elements of undue influence are motive, opportunity and the exercise of the influence (In re Walther, 6 NY2d 49).

The deposition testimony of the attorney-draftsman supports a finding that the will execution was not the product of undue influence.

The Court finds that objectant has failed to present any evidence or facts suggesting that the decedent was the victim of any overbearing or improper influence. Objectant merely speculates that undue influence is "present here" and that "further evidence in a trial will support" her claims.

Accordingly, the branch of the motion seeking summary judgment dismissing the objection alleging undue influence is granted.

The fourth objection alleges that the instrument offered for probate was procured by fraud. To establish fraud, the objectant must prove that someone knowingly made a false statement that caused the decedent to execute a will that disposed of his property in a manner different from the disposition he would have made in the absence of that statement (see, Matter of Coniglio, 242 AD2d 901). Objectant has submitted no evidence of fraud. [*5]

Accordingly, the branch of the motion seeking summary judgment dismissing the objection as to fraud is granted.

The balance of the motion seeking costs, attorney's fees and expenses is denied.

All objections having been dismissed, the petition is granted.

The instrument dated September 18, 2003 is admitted to probate as the Last Will and Testament of the decedent and Letters Testamentary shall issue to the petitioner upon her duly qualifying.

Settle Order and Decree.

The Clerk of the Court is directed to mail a copy of this Decision to the parties who have appeared in this proceeding.

Dated: January 29, 2010

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SURROGATE

NCAS

In re Engelhardt