In this contested probate proceeding in the Estate of Candace Jocelyn Curtis, the following papers were read incident to the objectant's request for an order dismissing the probate petition on the grounds that: the decedent lacked testamentary capacity; the due execution requirements of EPTL §3-2.1 were not satisfied; and undue influence on the part of decedent's live-in home health aide, Leonora Smart, who is the primary beneficiary of the decedent's will.

The following papers were read:

Objection to Probate-Exhibits A-G-Affirmation-1-15

Exhibits A-F

Will of Candace Jocelyn Curtis16

Answer to Objection to Probate-Verification17-18

The facts of this estate are quite compelling. The decedent was the recipient of a Ten Million Dollar ($10,000,000.00) structured settlement for injuries resulting from in utero exposure to toxic chemicals during her mother's employment. She was subsequently found to be incapacitated in a proceeding [*2]brought pursuant to Mental Hygiene Law Article 81 by Hon. Peter P. Rosato, J.S.C. in the Findings of Fact, Conclusions of Law and Judgment dated February 1, 2005 (Sup Ct, Westchester County, Index No. 7884/04). Pursuant to said judgment, the guardian/co-guardian were allowed to engage in Medicaid and estate planning for the benefit of Candace Curtis. By Order and Judgment of this Court dated May 11, 2010, Heather Curtis, objectant herein, was removed as co-guardian of decedents' person and attorney John Gifford was appointed guardian of the decedent's property, and attorney Susan Sullivan-Bisceglia was appointed guardian of her person. This Court also reaffirmed all other aspects of the Findings of Fact, Conclusions of Law and Judgment dated February 1, 2005.

On July 20, 2012, Candace Curtis died with a purported last will and testament dated January 1, 2012. The propounded instrument appoints Leonora Smart as the executrix of the will. It was allegedly witnessed by attorney Cynthia S. Rosenzweig and Whitney Van Duser. The objectant conducted depositions of the two aforenamed individuals. Leonora Smart has renounced her appointment as the named Executor. On September 27, 2012 the Commissioner of Finance, Pamela Barrack, filed for Letters of Administration c.t.a. Preliminary letters were issued to Commissioner Barrack by decree dated September 26, 2012. Preliminary Letters were extended by further decree, dated March 20, 2013.

Cynthia Rosenzweig, Esq. testified that at the time she drafted the will, she was an employee of Van DeWater and Van DeWater, LLP. She further stated that the decedent appeared focused and attentive during the process. Prior to execution, Ms. Rosenzweig stated that she reviewed the will with Candace, she read aloud "each of the things that were in the will," asked Candace if she understood and if the will reflected her intent. Candace replied in the affirmative, after appearing to read the will. She then witnessed Candace sign the will. Ms. Rosenzweig also stated that she then signed the witness affidavit.

Whitney Van Duser, secretary to John Gifford, Esq. and employee of Van DeWater and Van DeWater, LLP, stated that Susan Sullivan Bisceglia, Esq. called and asked that a will be drafted. In an email from Ms. Bisceglia to Ms. Van Duser, distribution under the will was described. Ms. Van Duser stated that she prepared the draft will and gave it Ms. Rosenzweig to be reviewed. Ms. Van Duser related that she had many prior communications with Candace, as Mr. Gifford was the guardian of her property. At the time of execution, Ms. Van Duser stated that herself, Ms. Rosenzweig, Ms. Bisceglia and Candace were in the room. She described Candace as attentive as to what was happening. She further confirmed that Ms. Rosenzweig went over each item within the will with Candace and received confirmation [*3]on each item. Ms. Van Duser also stated, when questioned concerning the self-proving affidavit and the contents thereof, that she knew that Candace could read because as the secretary to the guardian of Candace's property she knew that Candace had bought some books and an electronic reading device. Candace was witnessed signing the instrument as was Ms. Rosenzweig.

This Court will now addresses the challenges to probate individually.

The question of testamentary capacity concerns a person's mental condition only at the time of the execution of the will; evidence relating to the condition of the testator before or after the execution is only significant insofar as it bears upon the strength or weakness of the testator's mind at the exact hour of the day of execution (see In re Hedges, 100 AD2d 586 [2nd Dept 1984] appeal dismissed 63 NY2d 944 [1984]). Thus, for the decedent to possess testamentary capacity she is required to "know the contents of the will and appreciate the disposition of property made by it" (2 NY PJI 2d 7:48). Nonetheless, it is clear that less capacity is required to execute a will than a contract or any other legal document (see In re Coddington's Will, 281 AD 143 [3rd Dept 1952], affd 307 NY 181 [1954]).

The objectant herein states that the decedent suffered throughout her life with both physical and cognitive limitations. Objectant alleges that because of her cognitive limitations, Candace could not have understood the will. Further, as stated above, the decedent was found to be incapacitated in a proceeding brought under Mental Hygiene Law Article 81. This Court notes, however, that feebleness of intellect, however considerable, will not invalidate a will (see Delafield v. Parish, 25 NY 9 [1862]). Additionally, a finding of incapacity under Mental Hygiene Law Article 81 is based upon different factors from those involved in a finding of testamentary capacity (see Matter of Colby, 240 AD2d 338 [1st Dept 1997] leave appeal denied 91 NY2d 801 [1997]). Based upon the record before this Court, it finds that Candace possessed that degree of intelligence to allow her to dispose of her estate by will (see Delafield v. Parish, 25 NY 9 [1862]). The objectant and the respective witnesses statements concerning their respective opinions as to Candace's testamentary capacity, which are the results of reasoning processes of their own mind, rather than inferences based upon what the decedent actually did or said at the time of the execution of her will, are not conclusive on this Court (see In re Strong's Will, 179 AD 539 [3rd Dept 1917]). The witnesses to the will, Ms. Rosenzweig and Ms. Van Duser, deposition testimonies and the witnesses affidavit annexed to the will clearly indicate that Candace understood the nature and consequences of executing a will; knew that she was disposing all her property and the nature thereof via the will; [*4]and knew those who would be considered the natural objects of her bounty and her relations with them (see Matter of Kumstar, 66 NY2d 691 [1985] rearg denied 67 NY2d 647 [1985]). The affidavit of the guardian, Susan Sullivan-Bisceglia, Eq., indicates that objectant and Candace had at best what could be described as a strained relationship, thus the lack of a bequest to the objectant under the will would further indicate the strength of decedent's testamentary capacity in the formation and execution of the will.

This Court further notes that the medical records provided to it by the objectant including the neuropsychological evaluation referencing testing performed in 2001, the physical examination performed by Dr. Carfi in 2001 and the forensic psychiatric evaluation dated 2002, are not proximately close to January 1, 2012,the date the propounded instrument was executed, to conclusively demonstrate that the decedent lack testamentary capacity (see Matter of Gary, 37 Misc 3d 1208[A][Sur Ct, Bronx County 2012]). Additionally, the affidavit of Deana Shelok, a Reading Specialist at Rondout Valley High School, establishes that she never treated nor examined the decedent. Rather, the expert merely reviewed the decedents' records, including the Poughkeepsie School District's Individualized Education Plan for 1998/1999, the neuropsychological examination dated 2001 and the purported last will and testament, then rendered her opinion based upon this documentary evidence. Similar expert opinion evidence has been described as the weakest and most unreliable kind of evidence and insufficient to warrant submission of the issue of testamentary capacity to the jury (see Matter of Van Patten, 215 AD2d 947 [3rd Dept 1995] lv denied 87 NY2d 802 [1995]).

Accordingly, this Court finds that Candace Curtis possessed the requisite testamentary capacity on January 1, 2012 to dispose of her estate by will.

The fact that a will bears an attestation clause reciting due execution and signed by the witnesses raises a strong inference that the execution was according to the recitals (see Matter of Abel, 136 AD 788 [2nd Dept 1910]). The presence of such attestation clause does not give rise to a presumption of law, but is in itself presumptive evidence of such facts as may be deduced or inferred from it naturally (id.).

Additionally, this Court further notes that Cynthia Rosenzweig, Esq., the drafting attorney, supervised the will's execution. There is a presumption of regularity that the will was properly executed in all respects when an attorney-draftsperson supervises a will execution ceremony (see Matter of Farrell, 84 AD3d 1374 [2nd Dept 2011]; Matter of Moskoff, 41 AD3d 481 [2nd Dept 2007]; Matter of Tucio, 38 AD3d 791 [2nd Dept 2007] lv denied 9 NY3d 802 [2007]; Matter of James, 17 AD3d 366 [2nd Dept 2005]; Matter of Weltz, 16 AD3d 428 [2nd Dept 2005]). The objectant's submissions fail to overcome the aforementioned presumption of regularity.

Based upon the above cited testimony, the attestation clause as signed by the witnesses and the fact that the will execution ceremony was supervised and witnessed by the attorney-draftsperson Ms. Rosenzweig, this Court finds that the will was properly executed and witnessed as required by EPTL §3-2.1.

The final objection to probate is that the undue influence of individuals, specifically Leonora Smart, influenced Candace's bequests under her will and therefore the will should not be accepted for probate.

Unlike testamentary capacity, the objectant has the burden of proof with respect to her allegations that the will was the product of undue influence. To meet this burden, there must be proof of motive, opportunity and the actual exercise of undue influence tantamount to a moral coercion which restrained independent action and destroyed free will (see Matter of Walther, 6 NY2d 49 [1959]). The mere fact that one is the sole legatee or receives the lion's share of the decedent's assets is not, by itself, evidence of the exercise of undue influence (id.). As it is unusual for undue influence to be exerted in the presence of witnesses, it is often demonstrated by circumstantial evidence of motive, opportunity and the actual exercise of such influence(see Matter of Paigo, 53 AD3d 836, 839-840 [3rd Dept 2008]).

Here objectant alleges that the circumstances of the decedent's final years, her relationship with Leonora Smart, her bequest to Leonora, the isolation from members of her maternal family and Leonora's role in "drafting" the will, indicates that the will was a product of undue influence. However, the [*6]objectant fails to sustain her burden of proof with respect to her allegation that the will was the product of undue influence. The speculatory and conclusory assertions of both counsel for the objectant and objectant herself that Leonora Smart exercised undue influence over decedent's decision making capacity so as to influence her drafting of the will, are unsupported by evidence, circumstantial or otherwise (see Matter of Dubin, 54 AD3d 945 [2nd Dept 2008]). The fact that Leonora Smart and Candace may have developed a relationship, as described by Susan Sullivan-Bisceglia, Esq. as Leonora becoming a "motherly-figure," and spent a large amount of time together does not lead this Court to find that undue influence was present in the drafting and execution of this will.

Based upon the foregoing, the objections are hereby dismissed in their entirety. The subject instrument, dated January 1, 2012, is hereby admitted to probate as the last will and testament of Candace Jocelyn Curtis and decree granting letters of Administration c.t.a. to Pamela Barrack. Counsel for the petitioner is directed to submit a decree on notice consistent with the foregoing within ten (10) days from the date

of this decision.

The foregoing constitutes the decision of the Court.

Dated:Poughkeepsie, New York

August 28, 2013

ENTER

HON. JAMES D. PAGONES, S.C.J.