In this probate proceeding the preliminary executor, who is also the sole beneficiary of this estate under the propounded instrument, moves pursuant to CPLR 3212 for summary judgment dismissing the objections of the guardian ad litem for unknown distributees. The objectant opposes the motion, contending that there are issues of fact for trial with respect to due execution, testamentary capacity and undue influence.

The decedent, a former court reporter, died on January 10, 2009 at the age of 78 following an almost two-week hospitalization. The propounded instrument dated January 9, 2009 was executed one day prior to the decedent's death, while he was hospitalized. The amended probate petition indicates that the decedent's distributees are four first cousins, each of whom was served with process. One of the cousins, Evelyn Chait, requested that a subpoena duces tecum be "so ordered" by the court in order to obtain the decedent's hospital records, and her time to file objections was extended to 10 days after the completion of the SCPA 1404 examinations. Ultimately, she did not file objections.

Article III of the propounded instrument leaves the entire estate to the movant, "my dearest friend" and "loyal friend, confidant, companion and care giver" for "the preceding twenty (20) years," who the decedent considered "to be like a son to me." The same article also provides that had the movant predeceased the decedent, then Chait was the sole residuary beneficiary, and "specifically direct[s]" that no persons, "including my cousin [Chait]," shall be "permitted to circumvent my final directives and contest this last Will and Testament." The three-page propounded instrument was witnessed by three witnesses, contains an attestation clause and annexes a notarized, self-proving affidavit of the same date. It appears that on January 1, 2009, also while hospitalized, the decedent executed a prior testamentary instrument on a Blumberg form which contained handwritten provisions identical to the propounded instrument with respect to the disposition of the residuary estate; however, that prior instrument, also witnessed by three witnesses, does not contain any directive against a challenge to the instrument and lacks a self-proving affidavit.

Following the commencement of the probate proceeding, a judicial subpoena duces tecum issued for the production of the decedent's hospital records. In addition, SCPA 1404 examinations were conducted of the witnesses to the propounded instrument, as well as of its drafter, a non-attorney who also works in the court system and was a friend of the decedent and the movant. Prior [*2]to conducting SCPA 1404 examinations, the objectant filed initial objections asserting that the decedent lacked testamentary capacity, the propounded instrument was not properly executed pursuant to EPTL 3-2.1, and was procured by the undue influence of the movant.

The non-attorney drafter testified at her SCPA 1404 examination that the decedent first spoke about leaving everything to the movant about three years prior to his death, upon his return from a California trip. According to the drafter, the decedent always stated that he knew he should have a will, but he was "superstitious" and believed that, if he signed one, he would die. The decedent also stated repeatedly that the movant was "like a son" to him and he wanted to leave his estate to the movant. Over the years, particularly when the decedent did not feel well and raised the subject, the drafter encouraged the decedent to retain a lawyer to draw up a will or, alternatively, to complete a Blumberg form will and she gave him blank forms, noting that he did not have to sign any draft or form until he felt death was imminent. The drafter, the decedent and the movant were all friends and used to dine together, and the drafter considered the movant to be like "family." Specifically, although the decedent and the drafter were friendly, each of them had a closer relationship with the movant.

During the decedent's last hospitalization, the drafter did not go to the hospital but she often spoke with him by telephone; the decedent knew he was dying, and was always alert and coherent in those conversations. During the same conversations from the hospital, the decedent asked her to type the propounded instrument because he did not believe that the January 1, 2009 handwritten instrument on a Blumberg form looked official.

The drafter told the decedent that he would need two witnesses and a notary, but she did not contact the persons at the hospital who served as such. According to the drafter, the decedent stated that he did not want Chait to visit him in the hospital, that Chait had a very strong personality and there was an estate lawyer in the family that could be a problem. As a result, the decedent asked the drafter to insert in the propounded instrument a provision that Chait should not be permitted to circumvent the will. The drafter typed what the decedent told her, even though she was not sure whether the language was legally appropriate. After typing the propounded instrument in accordance with the decedent's instructions, the drafter gave it to the movant to deliver to the decedent.

The three witnesses to the will, the director of nursing, a nursing assistant and a unit secretary at the hospital, testified similarly. They stated that in the afternoon or early evening of January 9, 2009, before witnessing the decedent sign the instrument, the director of nursing questioned the decedent to determine his orientation and whether he knew what he was signing. The decedent answered all questions appropriately, including knowing the date, the place where he was and the names of the president and the mayor, and stated the witnesses were there to witness him sign the propounded instrument. When the hospital administrator indicated that he intended to read the contents of the propounded instrument aloud, the decedent stated that he already knew its contents and just wanted to "get it signed." Although one witness acknowledged that the decedent was weaker than when he was first hospitalized, all witnesses testified that the decedent was alert, oriented and semi-sitting in his bed. The nursing assistant added that, at the time, the movant was in the room.

The medical records annexed to the motion reveal that while hospitalized from December 30, 2008 through January 10, 2009, on December 30, 2008 and on January 2, 6 and 9, 2009, the decedent underwent several gastrointestinal procedures. On January 7 and 8, 2009, the decedent was [*3]verbally responsive, in no acute distress and alert and oriented "x3" although he received Percocet for pain. On January 9, 2009, the date of the propounded instrument, a Foley Catheter was removed and "discontinued," and fluid was drained from the decedent's abdomen at 8:45 a.m. By 8 p.m. that evening, the decedent was in renal failure and, by that time, he complained of pain in his abdomen and refused Percocet, stating that he wanted stronger medication; as a result, at 9:32 p.m., he received morphine intravenously. Other than those instances of receiving Percocet and morphine, the record notations for January 1, 2009 through the morning of January 10, 2009 consistently indicate that the decedent made his needs known, denied pain, was conversant, "awake, alert and oriented x3," "eyes bright" and responsive to commands, with no acute distress. As of January 2, 2009, the discharge plan for the decedent was "home;" however, by January 9, 2009, the notes indicate that the decedent had executed a "DNR" order and the discharge plan was "Calvary."

Following SCPA 1404 examinations and the receipt of the medical records, the objectant filed supplemental objections stating that: (1) the medical records revealed that on January 7 and 8, 2009, the decedent received two and four Percocets, respectively, for pain management and, on January 9, 2010, he underwent a procedure to remove fluid from his abdomen and received morphine; (2) the attesting witnesses lacked any knowledge of the decedent or his personal circumstances and there is no evidence that the propounded instrument was read aloud or that the decedent or witnesses were aware of its terms; (3) the decedent never asked the attesting witnesses to serve as such; and, (4) the drafter, although not an attorney, was a court employee, and "very shrewd" as she knew the statutory execution requirements for a will, but she never met with the decedent prior to her preparation of the propounded instrument and, admittedly, she and the movant had a close, family-like relationship.

In his motion for summary judgment, the movant relies on the foregoing examinations and documents and annexes his own affidavit in support. He urges that the medical records demonstrate that the decedent had the capacity to make a will and knew its contents and the decedent was always awake and alert to the date of his death. In further support of his motion, the movant also annexes: (1) a notarized, handwritten statement signed by the decedent on January 8, 2009, reiterating the disposition to the movant; (2) an unsworn statement by a physician's assistant who, on January 8, 2009, wrote that the decedent had "decision making capacity regarding health and personal affair[s];" (3) an affidavit by a family friend of the movant who states, inter alia, that she knew the decedent well and heard him state that the movant was like a son to him, and that he was upset with Chait and superstitious about making a will; and, (4) an affidavit by another friend of the decedent and the movant, stating that the decedent and the movant truly were like father and son and, in December, 2008 and January 2009, the affiant visited the decedent in the hospital and the decedent always had his mental abilities, was never confused, and was talkative and alert.

In opposition to the motion, the objectant contends that: (1) there are issues of fact as to testamentary capacity, as the movant never made available for examination the physician's assistant who wrote the January 8, 2009 statement, and never provided that statement to anyone previously; (2) the movant failed to demonstrate that the decedent understood the nature and consequences of executing the instrument, the nature and extent of the property he was disposing of, or the natural objects of his bounty and his relation to them; (3) her objections are based on the evidence that the decedent was hesitant to prepare any will, and not on his residuary bequest to a non-family member; and, (4) because the movant shared time with the decedent alone, he had the motive and opportunity [*4]to exercise undue influence over the decedent.

Summary judgment cannot be granted unless it clearly appears that no material issues of fact exist (see Phillips v Joseph Kantor & Co., 31 NY2d 307 [1972]; Glick & Dolleck, Inc. v Tri-Pac Export Corp., 22 NY2d 439 [1968]). 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 (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; Friends of Animals, Inc. v Associated Fur Mfrs. Inc., 46 NY2d 1065 [1979]). When the movant makes out a prima facie case, the burden shifts to the party opposing the motion to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact (see Zuckerman v City of New York, 49 NY2d 557 [1980]). Summary judgment is a drastic remedy which requires that the party opposing the motion be accorded every favorable inference, and issues of credibility may not be determined on the motion but must await the trial (see F. Garofalo Elec. Co. v New York Univ., 300 AD2d 186 [2002]).

As an initial matter, the court notes that to the extent that the movant's affidavit relates to personal transactions or communications with the decedent, CPLR 4519 bars its consideration in support of a summary judgment motion (see Phillips v Joseph Kantor & Co., 31 NY2d at 307; Marszal v Anderson, 9 AD3d 711, 713-714 [2004]; Friedman v Sills, 112 AD2d 343 [1985]). The unsworn, signed, handwritten statement by the physician's assistant dated January 8, 2009 is also disregarded, as it is not in admissible form (see Marsh v Wolfson, 186 AD2d 115 [1992]).

The proponent has the burden of demonstrating by a preponderance of the evidence that a purported will was duly executed (see Matter of Halpern, 76 AD3d 429 [2010], affd 2011 NY Slip Op 1323 [NY 2011]; Matter of Falk, 47 AD3d 21 [2007], lv denied 10 NY3d 702 [2008]; Matter of Pirozzi, 238 AD2d 833 [1997]; PJI 7:45). A presumption of regularity or validity may arise where the propounded instrument contains either an attestation clause preceding the genuine signatures of the attesting witnesses (Matter of Halpern, 76 AD3d at 429; Matter of Mooney, 74 AD3d 1073, 1074 [2010]; Matter of Falk, 47 AD3d at 26), or has a self-proving affidavit annexed (see Matter of Mooney, 74 AD3d at 1074; Matter of Schlaeger, 74 AD3d 405, 407 [2010]; Matter of Paigo, 53 AD3d 836 [2008]). Nonetheless, before admitting a will to probate, the court must be satisfied that the execution of the will was valid, even if no interested party files objections to its validity (see SCPA 1408; Matter of Halpern, 76 AD3d at 429; Matter of Falk, 47 AD3d at 26).

Here, the propounded instrument was not attorney-drafted or supervised; however, it contains both an attestation clause and a self-proving affidavit signed by three witnesses, giving rise to a presumption of regularity and validity. Although the objectant contends that proof of publication is lacking because the provisions of the propounded instrument were not read aloud during the execution ceremony, there is no requirement that an instrument be read aloud during the execution ceremony (see EPTL 3-2.1 [a] [3]). In any event, there was substantial compliance with the publication requirement as evidenced by the testimony of the attesting witnesses, that the decedent stated he understood they were there to witness him sign the instrument and refused an offer to read its contents aloud, stating that he knew its contents and just wanted to get the instrument signed (see Matter of Beckett, 103 NY 167, 173-174 [1886]; Matter of Hedges, 100 AD2d 586 [1984], appeal dismissed 63 NY2d 944 [1984]; Matter of Steinberg, 20 Misc 3d 1137 [A], 2008 NY Slip Op 51767 [U] [2008]; 2 NY PJI 3d 7:45 at 1401 [2011]). As the proponent met his burden of proof with respect to due execution and the objectant failed to raise any issue of fact for trial, the proponent is [*5]granted summary judgment dismissing that objection.

With respect to testamentary capacity, it is well settled that the proponent has the burden of proving by a preponderance of the evidence that the decedent possessed sufficient testamentary capacity by demonstrating that the decedent: (1) understood the nature and consequences of executing a will; (2) knew the nature and extent of the property being disposed of; and, (3) knew the natural objects of his bounty and his relations with them (see Matter of Kumstar, 66 NY2d 691, 692 [1985]; Matter of McCloskey, 307 AD2d 737 [2003], lv denied 100 NY2d 516 [2003]). Where there is conflicting evidence or the possibility of drawing conflicting inferences from undisputed evidence, the issue of capacity is one for the jury (see Matter of Kumstar, 66 NY2d at 692).

Here, the movant met his burden of establishing the decedent's testamentary capacity with the self-proving affidavit of the attesting witnesses stating that the decedent was of "sound mind, memory and understanding and not under any restraint" and was not in any respect incompetent (see Matter of Schlaeger, 74 AD3d at 405). The SCPA 1404 examinations, the medical records and the affidavits that may be considered, collectively, demonstrate that the decedent knew and understood the consequences of making a will, the nature and extent of his property and the natural objects of his bounty, and that he consciously decided not to make a bequest to Chait or other relatives (see id.; see also Matter of Scher, 74 AD3d 827 [2010]). Contrary to the objectant's contention, the morphine administered at 9:45 p.m. on January 9, 2009 was clearly after the execution ceremony which the witnesses testified occurred in the late afternoon or early evening. In sum, the evidence on the motion demonstrates that, at all times, the decedent had his cognitive facilities and was lucid in the days before, and at the time that he executed the propounded instrument (see Matter of Schlaeger, 74 AD3d at 405). As the proponent met his burden of proof and the objectant failed to raise any issue of fact for trial as to testamentary capacity, the proponent is also entitled to summary judgment dismissing that objection.

The objectant has the burden of demonstrating by a preponderance of the evidence the exercise of undue influence (see Matter of Castiglione, 40 AD3d 1227,1229 [2007], lv denied 9 NY3d 806 [2007]; Matter of Katz, 192 AD2d 327 [1993]; PJI 7:55). A finding of undue influence requires proof of "a moral coercion, which restrained independent action and destroyed free agency. . ." (Matter of Evanchuk, 145 AD2d 559, 561 [1988], quoting Children's Aid Soc. v Loveridge, 70 NY 387, 394 [1877]; see also Matter of Ryan, 34 AD3d 212 [2006], lv denied 8 NY3d 804 [2007]; Matter of Cavallo, 6 AD3d 434 [2004]). To meet the burden of proving undue influence, the objectant must establish not only motive and opportunity, but also the actual exercise of undue influence, either through direct evidence or through significant circumstantial evidence of specific instances in which the undue influence was actually exercised (see Matter of Walther, 6 NY2d 49, 55 [1959]; Matter of Renzi, 67 AD3d 1078 [2009], lv denied 14 NY3d 708 [2010], cert denied ___ US ___, 131 S Ct 420 [2010]; Matter of Dubin, 54 AD3d 945 [2008]; Matter of Ryan, 34 AD3d at 212; Matter of Fellows, 16 AD3d 995 [2005]).

Other than pointing to the possibility that the movant may have had a motive and opportunity to influence the decedent, the objectant failed to proffer any direct or circumstantial evidence, significant or otherwise, of the actual exercise of any alleged undue influence. As the objectant has the burden of proof on the issue of undue influence and she failed to make a prima facie showing that undue influence was actually exercised, the proponent is entitled to summary judgment dismissing the undue influence objection. [*6]

In summary, the guardian ad litem was clearly correct in vigorously exploring the validity of the propounded instrument in light of the following: (1) it is a "death-bed" will; (2) there were questions with respect to the need for the January 9, 2008 instrument as its predecessor by eight days, contains similar provisions; and, (3) the will was prepared by a person who was not an attorney, but was a close friend of the sole beneficiary who was not related to the decedent. Nonetheless, after a diligent inquiry into all of the circumstances surrounding the execution of the will, Chait, a cousin and alternate beneficiary under the will, opted not to file any objections. There are no triable issues of fact in view of all of the uncontroverted proof adduced, including the following: (1) the will was executed in accordance with all statutory formalities required by EPTL 3-2.1; (2) the decedent remained competent from the time he entered the hospital until he executed the will on January 9, 2009 and it was only much later in the evening on that day that there might have been any reason to question his testamentary capacity; (3) the sole beneficiary and the decedent enjoyed an extremely close relationship akin to a father-son relationship for a period of approximately two decades; and, (4) the reason the decedent waited for such a long period of time to effectuate his long-standing intent to name his friend as the sole beneficiary of his estate was that he was superstitious about making a will and it was only when he was convinced that his death was imminent, regardless of whether he made a will, that he executed a will.

Accordingly, the motion for summary judgment dismissing the objections is granted.

Settle decree dismissing the objections and admitting the will dated January 9, 2009 to probate.

SURROGATE