In this contested probate proceeding, Alfred Rabasco, petitioner and the named executor in the propounded instrument, dated October 27, 2016, moves for an order, pursuant to CPLR 3212, dismissing the objections of respondent Mark Penney and granting summary judgment.

By way of background, the matter before the Court concerns the probate of decedent's last will, dated October 27, 2016. Preliminary letters testamentary were issued to Mr. Rabasco by order dated February 17, 2017. Objections have been filed by Mark Penney, the decedent's grandnephew. The objections to the propounded instrument are: lack of due execution, undue influence, lack of testamentary capacity, and, fraud. The Court will address each objection in the order it was presented.

The objectant has the burden of proof with respect to his allegation 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, the objectant fails to sustain his burden of proof with respect to his allegation that the will was the product of undue influence. The speculatory and conclusory assertions of the objectant are unsupported by evidence, circumstantial or otherwise, to demonstrate that the will was a product of undue influence (see Matter of Dubin, 54 AD3d 945 [2nd Dept 2008]).

Objectant argues that given the decedent's large financial portfolio and petitioner's involvement in the decedent's affairs during a time when Susan Penney, decedent's grandniece, was out of town, motive and opportunity have been established. Even assuming arguendo that motive and opportunity were established, objectant offers no direct evidence that the petitioner did anything to actually influence decedent's distribution of her assets (see In re Estate of Alibrandi, 104 AD3d 1175 [4th Dept 2013]). Moreover, objectant offers no evidence to establish that the changes in "testamentary intent" were anything but freely, voluntarily and intelligently crafted by the decedent (see generally Children's Aid Soc. of New York v. Loveridge, 70 NY 387 [1877]). The objectant's remaining contentions regarding the allegations of undue influence exerted over the decedent are likewise unsupported by evidence and do not necessitate further discussion.

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). 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 Court finds based upon the record that Vernetta R. Stevens a/k/a Vernetta Rose Stevens possessed that degree of intelligence and comprehension to allow her to dispose of her estate by will (see Delafield v. Parish, 25 NY 9 [1862]). The affidavit of the attesting witnesses stating that the decedent was of sound and disposing mind, memory and understanding and was not under any restraint or in any respect incompetent establishes the proponent's burden of establishing the decedent's testamentary capacity (see In re Will of Schlaeger, 74 AD3d 405 [1st Dept 2010]).

While the Court recognizes that the decedent was of advanced age, One Hundred and [*2]Two (102) years young at the time of execution, the deposition testimony of the attorney draftsman and the subscribing witnesses establish that the testator was of sound mind and fully aware of the nature and consequences of her actions in disposing of her property on the day she executed the propounded instrument. The Court would note that mere proof of dotage is insufficient to find a lack of testamentary capacity (see Matter of Buchanan, 245 AD2d 642 [3rd Dept 1997] leave to appeal dismissed by 91 NY2d 957; Matter of Will of Coniglio, 242 AD2d 901 [4th Dept 1997]; Matter of Palmentiere, 171 AD2d 871 [2nd Dept 1991]). Moreover, the objectant's offer of an inadmissable letter from Dr. Ingrid M. Van Hollebeke, D.O., dated January 19, 2016, which indicates that the decedent was diagnosed with dementia, fails to raise an issue of fact as to testamentary capacity (see CPLR 2106, CPLR §2309, Matter of Fiumara's Estate, 47 NY2d 845 [1979]; In re Estate of Makitra, 101 AD3d 1579 [4th Dept 2012]; In re Estate of Friedman, 26 AD3d 723 [3rd Dept 2006] leave to appeal denied by 7 NY3d 711; Matter of Hedges, 100 AD2d 586 [2nd Dept 1984] appeal dismissed by 63 NY2d 944).

Accordingly, this Court finds that Vernetta R. Stevens a/k/a Vernetta Rose Stevens possessed the requisite testamentary capacity on October 27, 2016 to dispose of her estate by will.

The proponent of a will has the burden of proving that the propounded instrument was duly executed in conformance with the statutory requirements (see EPTL §3-2.1 [a]; Matter of Collins, 60 NY2d 466 [1983]; Matter of Rosen, 291 AD2d 562 [2nd Dept 2002]). Here, the deposition testimony of Stephen E. Diamond, Esq., the attorney who drafted the will, supervised its execution, together with the depositions of the subscribing witnesses, establish that the will was consistent with the decedent's intentions, that the will was read and reviewed by Vernetta R. Stevens a/k/a Vernetta Rose Stevens, who declared the instrument to be her will and signed it in the presence of the witnesses (see Matter of Minervini, 297 AD2d 423 [3rd Dept 2002]; Matter of Herman, 289 AD2d 239 [2nd Dept 2001] leave to appeal denied 97 NY2d 612).

Accordingly, this Court finds that the will was properly executed and witnessed as required by EPTL §3-2.1.

To state a claim for fraud, the objectants are required to demonstrate that one knowingly made a false statement to the testator which caused her to execute a will that disposed of her property in a manner differently than she would have in the absence of that statement (see Matter of Evanchuk, 145 AD2d 559 [2nd Dept 1988]). Here, the objectant has submitted no evidence that anyone made such a false statement, and as such, has failed to raise a triable issue of fact regarding any fraud claim (see Matter of Ryan, 34 AD3d 212 [1st Dept 2006] leave to appeal denied by 8 NY3d 804).

Lastly, the Court would like to address the objectant's argument concerning the alleged premature nature of the petitioner's motion for summary judgment, as discovery is sought. Objectant's mere expression of hope that further discovery would be helpful to his position provides no basis for the denial of this motion (see generally Marcel v. Chief Energy Corp., 38 AD3d 502 [2nd Dept 2007]). The Court also notes further that counsel for the objectant was afforded ample opportunity to conduct discovery in this matter, yet chose not to. On or about March 21, 2017, respondent filed objections to the probate of the propounded instrument. On [*3]June 5, 2017, SCPA §1404 examinations of the attorney draftsman and subscribing witnesses were held. The motion for summary judgment was then filed on August 29, 2017. The record indicates counsel for the objectant failed to engage in any discovery during the five (5) months which transpired leading up to the motion now under consideration. Therefore, the Court finds no merit in law or fact to the objectant's allegation that the petitioner's motion for summary judgment is premature.

Based upon the foregoing, the objections are hereby dismissed in their entirety. The genuineness of the will, dated October 27, 2016, and the validity of its execution having been shown to the satisfaction of the Court, it is admitted to probate pursuant to SCPA §1408 and EPTL §3-2.1, valid to pass real and personal property. The will and this decree shall be recorded and Letters Testamentary shall issue to upon properly qualifying for such office. The Preliminary Letters Testamentary previously issued are hereby revoked.

The foregoing constitutes the decision and decree of the Court.