THOMAS F. CAREY (hereinafter the "Decedent") died a resident of Saratoga County on November 15, 2021 at seventy-eight (78) years of age. The decedent was survived by his seven (7) children: Mary "Mimi" Carey, Kelly Carey (f/k/a Kelly Smallidge), Bridget McLaughlin, Thomas J. Carey, Casey Carey, Cheyenne Carey, and Shania Carey, who are his distributees.^[FN1]

A Petition for Probate was filed by Cheyenne Carey (the named Executrix in the Will and hereinafter referred to as "Petitioner") on May 19, 2023, seeking to probate decedent's purported Last Will and Testament dated March 7, 2013. Thereafter, Petitioner filed an Amended Petition for Probate on January 17, 2024.^[FN2] On the June 12, 2024 citation return date, the Court found that jurisdiction had been obtained over all interested parties. On June 25, 2024, Kelly Carey and Bridget McLaughlin (hereinafter referred to as "Objectants"), filed verified objections to the probate of the propounded Will.

By Notice of Motion dated August 15, 2024, Petitioner moves for dismissal pursuant to CPLR §3211 and/or summary judgment pursuant to CPLR §3212, to have the objections dismissed, the purported Last Will and Testament admitted to probate, and that Letters Testamentary be issued to Petitioner. Petitioner's motion was returnable on October 2, 2024 at 10:30 a.m. No written opposition to Petitioner's motion was received by Petitioner or the Court, and Objectants failed to appear on the motion return date.

The Objections consist of a lengthy narrative of the decedent's family history and dynamic that includes allegations of decedent's severe drug addiction, and also attached pictures, notes, poems, and other items. Read in its entirety, the Objections appear to allege that the [*2]decedent lacked testamentary capacity and/or that there was undue influence at the time the Will was executed due to his drug use.

It is well settled that summary judgment is a drastic remedy and will not be granted if there is any doubt as to the existence of a triable issue. It is a matter of issue finding, not issue determination. The proponent of a summary judgment 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" (Alvarez v. Prospect Hosp., 68 NY2d 320, 324 [NY 1986]). Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers (Winegrad v. New York Univ. Med. Center, 64 NY2d 851, 853 [1st Dept. 1984]). Once this showing has been made, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action (Zuckerman v. City of New York, 49NY2d 557, 562 [NY 1980]; In re Saman Estate, NYLJ, March 26, 2004, at 32, col 5 [Sur Ct, Nassau County 2004]).

To defeat a summary judgment motion, the Objectant must come forward and lay bare his proof. It is the Court's responsibility to determine whether there are issues of fact to be determined, which can only be determined after a trial on the issues. In so doing, the Court must construe the facts in a light most favorable to the non-moving party so as not to deprive that person of his day in court (Russell v. A. Barton Hepburn Hospital, 154 AD2d 796 [3rd Dept. 1989]). Although summary judgment is somewhat unusual in a contested probate proceeding, it is appropriate where the proponent has made a prima facie case for probate and the objectant fails to raise a material triable issue of fact (Matter of Colverd, 52 AD3d 971 [3rd Dept 2008]).

Turning first to the challenge to decedent's testamentary capacity, the burden rests with petitioner, as the moving party, to demonstrate that decedent "understood the consequences of executing the will, knew the nature and extent of the property being disposed of and knew the persons who were the natural objects of his bounty . . . and his relationship to them" (Matter of Giaquinto, 2018 NY Slip Op 06065, ¶ 2, 164 AD3d 1527, 1528, 83 N.Y.S.3d 728, 731 [App. Div. 3rd Dept], citing Matter of Prevratil, 2014 NY Slip Op 05478, 121 AD3d 137, 990 N.Y.S.2d 697 [App. Div. 3rd Dept]).

Here, petitioner submitted, among other things, the original March 7, 2013 Will, along with the self-executing affidavits of Joseph W. McPhillips and Karen P. Carrera, the subscribing witnesses who attested to decedent's sound mind, memory and understanding when he signed the will—which "created a presumption of testamentary capacity and prima facie evidence of the facts attested to" (Matter of Walker, 2011 NY Slip Op 82, 80 AD3d 865, 914 N.Y.S.2d 379 [App. Div. 3rd Dept.] [internal citations omitted]).

The burden of proof now shifts to Objectants to overcome the prima facie testamentary capacity of the decedent. The Court notes that Objectants waived their right, on the record, to a SCPA §1404 hearing, no depositions were taken, and no discovery demands were made. [*3]Objectants' position contained in the Verified Objections reads, in relevant part, that their objections "should NOT be reduced to the question of whether we can 'prove' our father was of sound mind and/or not under the influence" during the execution of the Will. Unfortunately for Objectants, that is precisely what the law requires of them in this matter.

Decedent's alleged drug use/addiction would only form a basis for any legal theories contained in the Verified Objections if there was conclusive proof of such allegations sufficient to render decedent of unsound mind at the time of the execution of the Will.^[FN4] "In determining testamentary capacity, the court need only look at the time period during which the decedent executed his or her will" (In re Estate of Redington, 2014 NYLJ LEXIS 7428). Testator's history of addiction to or use of alcohol or drugs is not enough to establish lack of capacity, unless there is evidence that the testator's judgment was impaired by such at the time of the will's execution (Id.at 9).

Less mental capacity is required to execute a will than is required to execute any other legal instrument (Matter of Coddington, 281 AD 143, 118 N.Y.S.2d 525 [3d Dept 1952], affd 307 NY 181, 120 N.E.2d 777 [1954]). Thus, it has been held that a will executed by one judicially declared insane will be admitted to probate upon proof that it was made during a lucid interval (Estate of Gallagher, No. 4328/01, 2007 NY Misc. LEXIS 7639 [Kings County Sur. Ct. Sep. 26, 2007] [internal citations omitted]). Courts have also found "that the fact that decedent was diagnosed with progressive dementia does not, in and of itself, create a triable issue of fact as to his mental capacity" (Matter of Friedman, 2006 NY Slip Op 1354, 26 AD3d 723, 809 N.Y.S.2d 667 [App. Div. 3rd Dept.]).

In this case, there is simply no competent evidence that the decedent lacked testamentary capacity or was under any undue influence at the time of the execution of the Will. Unfortunately for Objectants, "[b]ald assertions, speculation, mere conclusions, expressions of hope or unsubstantiated allegations and assertions are simply insufficient to successfully oppose a motion for summary judgment" (Del Giacco v. Noteworthy Co., 175 AD2d 516 [3rd Dept 1991], citing Zuckerman v. City of New York, supra at 562).

After review of the motion papers and a careful review of the Court's records, this Court finds that Objectants have not set forth any issues of fact sufficient to require a trial. Even assuming arguendo that the contentions of the Objectants are true, and construing all evidence in a light most favorable to them, there simply has been nothing offered but conclusory allegations. Accordingly, the Petitioner's motion for summary judgment is granted, and all objections are dismissed.

It is therefore,

ORDERED, ADJUDGED, AND DECREED based upon all of the foregoing, that the Verified Objections are dismissed in their entirety; and it is further

ORDERED, ADJUDGED, AND DECREED that Decedent's March 7, 2013 Last Will and Testament be admitted to probate; and it is further

ORDERED, ADJUDGED, AND DECREED that a Decree and Letters Testamentary be issued to the Petitioner, duly named as the Executrix in said Will.