In this contested probate proceeding, Charles Miller ("Charles") and Patriece Miller ("Patriece"), move for summary judgment for an order sustaining their objections, denying probate to the propounded instrument (the "propounded instrument").^[FN1] Maxine Butler ("Maxine") and Peter Miller ("Peter") oppose the motion and cross-move for summary judgment, for an order dismissing the objections and admitting the instrument to probate. For the reasons stated below, the motion is denied, and the cross motion is granted.

Since the probate petition filed with the court listed Charles as being a person under a disability, a guardian ad litem was appointed for him. On an allegation by his counsel, that Charles was not under a disability, the guardian ad litem was instructed to render a report as to whether Charles indeed was a person under a disability. He concluded that he was not, and the guardian ad litem was discharged.

The court also appointed a guardian ad litem for Wayne Miller ("Wayne"), a son of the decedent whose whereabouts are unknown. He has filed an affirmation in opposition to the motion for summary judgment in which he stated that the propounded instrument should be admitted to probate.

The facts which pertain to the motion are as follows:

The decedent was married to Velma Miller ("Velma"), and together, they had several children (Charles, Patriece, Maxine, Peter). The decedent had four other children not with Velma, namely, Wayne, Bernard Miller ("Bernard")^[FN2] , Audrey Thomas ("Audrey") and Paulette Clark ("Paulette).

On February 18, 2011, the decedent executed an instrument which left his entire estate to Velma. If Velma predeceased him, the following distributions would be made: (1) $1,000 each to Bernard, Paulette ^[FN3] , Audrey and Wayne ^[FN4] ; (2) Chase bank accounts to Peter, Charles ^[FN5] and Maxine; (3) Bronx real property to Peter, Charles and Maxine; (4) Mount Vernon real property to Patriece; (5) Jamaica property to Bernard; and (6) residuary estate to Maxine, Charles, Peter and Patriece (the "February instrument").

On July 27, 2011, the decedent executed the propounded instrument. That instrument provided: (1) $1,000 each to Bernard, Paulette, Audrey and Wayne; (2) Bronx real property to Peter and Maxine; (3) Mount Vernon real property to Patriece and Charles; (4) Jamaica property to Bernard; and (5) residuary estate to Maxine and Peter. By this time, Velma had predeceased the decedent.

While the execution page of the propounded instrument stated that it was executed by the decedent on July 27, 2011, the covering page sets forth the date as August 27, 2011. The decedent's signature was witnessed by Joseph Alessandro ("Joseph") and Francis Alessandro ("Francis"). The affidavit of witnesses signed by Francis and Joseph, was dated on August 27, 2011, and stated that the will was executed on August 27, 2011.On February 27, 2012, the decedent died, leaving seven distributees. With a petition verified on March 9, 2012, Maxine and Peter sought the probate of the propounded instrument. Patriece and Charles filed objections, alleging due execution, fraud and undue influence; SCPA 1411 jurisdiction was obtained; and discovery was completed.

On January 22, 2013, the attorney for Patriece and Charles took the SCPA 1404 depositions of Joseph and Francis. Joseph testified that the decedent came to him through Phyllis Donaldson, a long standing client of his, who was a good friend of the decedent; he went to see the decedent at the Baychester Senior Center to discuss and execute the instrument because he did not drive; he met with the decedent for 30-45 [*2]minutes, and they discussed the provisions he wanted in his will; and he then went back to his office, and he drafted the propounded instrument.

Joseph further testified that Francis supervised the execution of the will; the decedent asked him to witness the execution of the instrument; and the decedent signed it in front of him, was of sound mind, was not suffering from any physical or mental impairment, was neither under any duress nor undue influence and was not the subject of any fraud. He further testified that the instrument was executed on July 27, 2011, but that the witness affidavit was completed on August 27, 2011; he did not ask a lot of questions about the decedent's assets; he lost the decedent's will file in a flood in his office; and the decedent told him that he had a prior will which he wanted to change. Furthermore, Joseph testified that he lost his law license in 2012. Joseph signed the transcript of his deposition, it was acknowledged on March 16, 2015, and it was filed with the court on July 15, 2015.

Francis testified that he recalled the decedent, the execution of the propounded instrument in a senior center in the Baychester area of the Bronx, his signature as witness, and the decedent signing in front of him and Joseph, being of sound mind and memory and not being on medication or suffering from any physical or mental impairment. He further testified that the decedent signed the will on July 27, 2011; the affidavit of attesting witnesses was signed and notarized one month later on August 27, 2011, because they had not had a notary available to them; and he never noticed that the date of execution of the will was set forth as August 27, 2011, when it was actually July 27, 2011. Francis did not discuss the decedent's family or his assets with him. He had general conversation with him on the day of the will execution to determine his testamentary capacity.

Francis further testified that he helped Joseph draft the instrument; Joseph gave him his notes of the decedent's wishes; Francis typed the will, and Joseph okayed it; the notes were then placed in the will file; and after the will was drawn, the file was placed downstairs in the basement where it was ultimately destroyed by water damage. He last saw the instrument on August 27, 2011, when he signed the witness affidavit and had it notarized. He also stated that he never keeps an original will but always gives it to the person he prepared it for. Francis signed the transcript of his deposition; it was acknowledged on April 22, 2015; and it was filed with the court on April 27, 2015.

Patriece and Charles filed a host of objections to the probate of the instrument including due execution, undue influence and fraud.^[FN6] Discovery was completed.

As noted above, Patriece and Charles now move for summary judgment. In support of their motion, they submit Charles's affidavit which states that he "firmly believe[s] that ...Maxine with the assistance and acquiescence of ... Peter coerced [the decedent] into signing [the propounded instrument]"; he does not believe that the decedent would have changed his earlier will, which was drafted by an attorney he had used for 10 years "unless he was subject to undue influence and moral coercion"; for many years he had joint bank accounts with the decedent; and he believes that Maxine [*3]took the money from those accounts for herself, and she and Peter should return the money to the estate and should be required to forfeit their inheritances. They also submitted their attorney's affirmation in which she stated that counsel for the petitioners did not produce requested documents, mainly concerning the decedent's assets. Attached to their papers were the February 2011 and the propounded instruments and portions of the transcript of Maxine's deposition.

In opposition to the motion and in support of the cross motion, Peter and Maxine submitted the affidavit of their attorney which stated that Patriece and Charles failed to meet their burden of proof on their objections, and they should be dismissed.

Summary judgment is designed to eliminate from the trial calendar, litigation which can be resolved as a matter of law (see Andre v Pomeroy, 35 NY2d 361 [1976]). The proponent of the motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]).

Once such a showing has been made, the burden shifts to the party opposing the motion to produce admissible evidence sufficient to establish the existence of material issues of fact which require a trial (see Zuckerman v City of New York, 49 NY2d 557, 563 [1980]) which must be supported by factual allegations or documents (see Cordovi v Karnbad, 214 AD2d 476 [1st Dept 1995]). While a court must construe the facts in the light most favorable to the non-moving party (see Martin v Briggs, 235 AD2d 192 [1st Dept 1997]), that party must lay bare his proof because unsubstantiated allegations are insufficient to defeat the motion (see Zuckerman v City of New York).

The first objection is lack of due execution. As to the issue of due execution, Maxine and Peter bear the burden of proving that the instrument was executed in compliance with EPTL 3-2.1. Where, as here, the attorney/draftsman supervises the execution, there is an inference that the execution was made in accordance with the requisite statutory requirements (see Matter of Philbrook, 185 AD2d 550 [3d Dept 1992]). Due execution is also inferred if the will has an attestation clause such as the propounded instrument (see Matter of Nelson, 141 NY 152 [1894]). Maxine and Peter met their burden on due execution through the testimony of the witnesses, the attestation clause and the self-proving affidavit of the attesting witnesses (see Matter of Mateo, 134 AD2d 261 [2d Dept 1987]).

No actual arguments are made by Charles and Patriece regarding execution.^[FN7] Their attorney in the SCPA 1404 depositions and in her affirmation refers to the fact that the decedent executed the propounded instrument in July and the attesting witness affidavit states the date was in August and that each of Francis and Joseph thought the other had drafted the instrument. Francis in sworn testimony explains that the [*4]decedent executed the will, and they witnessed his signing on July 27, 2011 but that there was no notary available, and they completed the witness affidavit before a notary one month later. The testimony was that each of Francis and Joseph had a part in the preparation of the will and neither clearly admitted to being the drafter. Moreover, there was no evidence presented that the execution was not in compliance with EPTL 3-1.2. Accordingly, objection one is dismissed.

Undue influence has been defined as "coercion which restrained independent action or which by importunity, which could not be resisted, constrained the testator to do that which was against his free will" (Matter of Walther, 6 NY2d 49 [1959]). It is "seldom practiced openly, but it is rather the product of persistent and subtle suggestion imposed upon a weaker mind and calculated, by the exploitation of a relationship of trust and confidence, to overwhelm the victim's will to the point where it becomes the willing tool to be manipulated for the benefit of another" (Matter of Burke, 82 AD2d 260 [2d Dept 1981]).

To demonstrate undue influence, Patriece and Charles must show by a fair preponderance of the evidence that a motive, an opportunity, and the actual exercise of influence subverted the mind of the decedent at the time of the will execution to the extent that, but for the influence, the decedent would not have executed the instrument (see Matter of Fiumara, 47 NY2d 845 [1979]). Since direct proof of undue influence is rare, it is demonstrated by, among other things, a testator's (1) relationships with the beneficiaries of the instrument and family members at the time of the will execution, (2) mental and physical condition, and (3) dependency on the person purported to have unduly exercised the influence (see Matter of Buettner, NYLJ, Aug. 21, 1998, at p. 31, col 1, citing Rollwagen v Rollwagen, 63 NY 504 [1876]).

As a preliminary matter, based on the terminology used in their memorandum of law, it appears that Charles and Patriece allege that a confidential relationship existed between Maxine and the decedent because she collected rents and was the decedent's attorney-in-fact. The existence of a confidential relationship does not create a presumption of undue influence as a matter of law (see 2 Harris, New York Estates, § 20:229), and the burden of proving undue influence never shifts from the objectant (see Matter of Collins, 124 AD2d 48 [4th Dept 1987]). However, when the existence of a confidential relationship is demonstrated, an inference of undue influence may arise (see Matter of Katz, 15 Misc 3d 1104[A] [Sur Ct 2007]), which a proponent must explain.

The proof must show that the testator was dependent on the beneficiary and that the beneficiary intruded on the testator's freedom of action (see Matter of Arnold, 125 Misc 2d 265). Generally, the relationship between a decedent and a close family member is not considered "confidential" for the purposes of raising the inference of undue influence (see Matter of Revit, NYLJ, May 10, 1999, at 31, col. 2) because the close nature of the relationship offsets the inference (see Matter of Walther).

Additionally, an inference of undue influence cannot be drawn from circumstances which are consistent with a contrary inference (see Matter of Branovacki, 278 AD2d 791 [4th Dept 2000], lv to appeal denied, 96 NY2d 708 [2001]; Matter of [*5]Swain, 125 AD2d 574 [2d Dept 1986], appeal denied, 69 NY2d 611 [1987]), and the mere fact that a will favors one child over another does not supply the inference (see Matter of Fiumara).

There is no evidence in the record that the decedent was dependent on Maxine, or Peter for that matter, for his mobility; there is no evidence that either Maxine or Peter intruded on the decedent's freedom of action; and there is no evidence of either false statements made to the decedent by Maxine or Peter or motive or actions by them which constrained the decedent to execute the instrument against his own free will. On this record, Maxine's being the decedent's attorney-in-fact does not demonstrate a confidential relationship between the decedent and Maxine.

As to the undue influence objection, while a motive theoretically may exist, for Maxine and/or Peter to get more than their fair share of the decedent's assets, the record reflected that the decedent already favored the children he had with Velma over his other four children (see Matter of Fiumara). It is insufficient to show undue influence without evidence of actions by either Maxine or Peter which constrained the decedent to make the will against his own free will (see Matter of Walther; Matter of Pennino, NYLJ, May 6, 1998, at 34, col. 2). Furthermore, there is no evidence in this record that either Joseph or Francis ever met with Maxine or Peter or spoke to either of them and that Maxine or Peter were directly involved or participated in the execution of the will (see Matter of Silverman, NYLJ, May 11, 2004, at 24, col. 6).

The allegations made by Patriece and Charles, viewed in a light most favorable to them, amount to no more than speculation and conjecture and are insufficient to defeat a motion for summary judgment (see Zuckerman v City of New York, at 563). Therefore, the cross motion is granted as to this objection..

As to the fraud objection, Charles and Patriece must establish by clear and convincing evidence, that a false statement was made which caused the decedent to execute a will that disposed of his property in a manner different than he would have if the statement had not been made (see Matter of Beneway, 272 App Div 463 [3d Dept 1947]). On this record, there is no evidence of false statements made to the decedent by Peter or Maxine which would have caused him to execute the propounded instrument. Therefore, this objection is dismissed.

With respect to the cross motion to admit the propounded instrument to probate, the allegations made by Charles and Patriece, viewed in a light most favorable to them, amount to no more than speculation and conjecture and are insufficient to defeat a motion for summary judgment (see Zuckerman v City of New York). Therefore, the cross motion is granted as to the objections, and they are dismissed.

The court is satisfied that the propounded instrument was duly executed in accordance with the requirements of EPTL 3-2.1. The decedent's competence to make a will and his freedom from restraint also have been established to the court's satisfaction (see SCPA 1408[2]). Accordingly, the propounded instrument will be admitted to probate as decedent's last will and testament. Letters testamentary shall issue to Peter and Maxine, upon their duly qualifying according to law, to serve without bond.

If Charles had accounts that were held jointly with the decedent, he may be in a [*6]position to bring a different proceeding against Maxine.

Attorney Goubeaud is directed to file his affidavit of legal services. His fees and those of Attorney Lawner will be fixed by the court in a separate order of the court

Settle decree on motion and petition.