Surrogate's Court, Suffolk County

Decided on March 24, 2026

File No. 2024-491/A

Vincent J. Messina, Jr., S.

[*1]

Upon the following papers numbered 1 to 8 read on this motion seeking summary judgment; Notice of Motion, and supporting papers 1-5; Affirmation in Opposition, and supporting papers 6-7; and Reply Affirmation, paper 8, as well as prior pleadings filed herein, it is

ORDERED, that the objections filed by objectant in the underlying probate proceeding are dismissed for the reasons set forth below; and it is further

ORDERED, that petitioner submit a proposed decree on notice to objectant and the guardian ad litem within thirty days of the date this order.

Background

Decedent died on December 31, 2023, a domiciliary of Suffolk County, New York. She is survived by

four children, one grandchild from a pre-deceased child, and a spouse.

Petitioner, Agnes Ann Cahill, one of decedent's daughters, commenced the underlying proceeding to probate a will dated August 8, 2023, purporting to be the last will and testament of the decedent. The propounded instrument consists of four pages, including the attestation clause and a self-proving witness affidavit. Petitioner is the nominated executrix and trustee in that document. The propounded instrument leaves the entire estate of the decedent to her four surviving children outright and in trust to her minor grandson, by specifically naming them therein. The child that the decedent has in common with the objectant, Anastasia Lubrano, is nominated as the alternate executor and alternate trustee.

Decedent's spouse, Leonard Lubrano, filed objections to probate of the propounded instrument alleging four objections; lack of due execution, lack of testamentary capacity, and the propounded instrument was procured by fraud and/or undue influence.

A guardian ad litem was appointed to represent the interests of the infant grandson of the decedent, one of the five beneficiaries in the propounded instrument.

The spouse is not mentioned at all in the propounded instrument. The decedent had commenced a divorce proceeding against the objectant in 2020, while she was undergoing treatment for stage four cancer. The divorce proceeding pending at the time of her passing, was abated by her death.

Additionally, objectant commenced a constructive trust action against the decedent, a few months prior to her death, seeking an interest in a Jamesport home that is titled solely in the name of the decedent. That action, which was commenced on July 31, 2023, nine days before the propounded instrument at issue was executed, remains pending in the Supreme Court, Suffolk County.

At the time of decedent's death, she was also a party in a personal injury action concerning a car accident with a third party. That personal injury action also remains pending in the Supreme Court, Suffolk County.

After the underlying probate matter was scheduled for an Early Settlement Conference, petitioner filed for preliminary letters testamentary due to the two pending proceedings in Supreme Court, Suffolk County involving the decedent, and to marshal assets of the estate that are at risk of being dissipated or lost. Objectant filed objections to the issuance of the preliminary letters testamentary. By order of this court dated December 27, 2024, preliminary letters testamentary were granted to petitioner. Amended preliminary letters testamentary issued on July 14, 2025, after an order dated April 7, 2025, and the posting of a bond.

There have been several conferences held in this matter, as well as five pretrial disclosure orders. All discovery is complete and a note of issue with statement of readiness has been filed with the court. The objectant has also filed a notice of right of election.

Petitioner now moves for summary judgment as a matter of law, pursuant to CPLR 3212, dismissing the objections to probate, admitting the propounded instrument to probate, and issuing letters testamentary and letters of trusteeship to petitioner, upon the ground that there are no triable issues of fact in the underlying probate proceeding. The guardian ad litem supports the motion and the objectant opposes the motion. Oral argument was held on December 2, 2025.

Arguments

Petitioner, relying upon a number of cases and deposition transcripts of the petitioner, objectant, and attorney draftsman who was also a witness to the execution of the propounded instrument, asserts that she has met her burden of proof demonstrating that the propounded instrument was duly executed and the decedent had testamentary capacity at the time of execution. Petitioner also asserts that objectant has failed to meet his burden of proof concerning undue influence or fraud.

Petitioner notes that the propounded instrument is entitled to a presumption of validity, as the execution was supervised by an attorney and signed by two witnesses. The propounded instrument contains affidavits of the attesting witnesses that state the decedent was of sound mind and the decedent expressed that she left all of her assets to her four surviving children and grandson. Petitioner asserts that the propounded instrument indicates that decedent had testamentary capacity, because it demonstrates that she understood the need for a trust for her minor grandson. Petitioner maintains that the record demonstrates that the decedent had reason to omit the objectant from her will and the objectant has failed to raise a triable issue of fact to refute the validity of the propounded instrument.

Filed with the motion is the guardian ad litem's affirmation in support of petitioner's motion for summary judgment, recommending that the motion be granted and the propounded instrument admitted to probate. The guardian ad litem noted that the issues raised by the objectant in this matter concern whether or not certain assets listed in the probate petition are properly part of the decedent's estate, which is irrelevant to ultimate determination in a probate proceeding. The guardian ad litem states, "I am satisfied that the formal requirements of due execution have been met, that the Decedent possessed testamentary capacity at the time she executed the Will, and that there is no basis for any claim that the Will was the product of fraud or undue influence."

Objectant opposes the motion and asserts that the propounded instrument should be denied probate because the decedent was reliant upon others at the time of the execution of the propounded instrument due to her physical condition. Objectant cites no statutes or case law, but relies upon an affidavit of the decedent dated October 28, 2020, executed several years before the execution of the propounded instrument, to assert that the decedent herself claimed she was not able to care for herself and that petitioner handled decedent's affairs.

Objectant also asserts that petitioner was controlling the decedent. In support of this [*2]assertion he relies upon the deposition testimony of petitioner in this action. Specifically he relies upon the petitioner's testimony that: (1) the decedent was aware of the constructive trust action, was very frustrated by it, and sought the petitioner's advice concerning same; (2) petitioner encouraged the decedent to move out of the Jamesport home and into a property that the petitioner purchased in Wading River, because it was believed that the court in the divorce action was going to require the parties to sell the Jamesport home; and (3) after the decedent had passed away, petitioner called the police on objectant to report that he had moved back into the Jamesport home that he had vacated during the divorce proceeding.

Finally, objectant asserts that the petitioner made misrepresentations to the decedent regarding the status of the ownership of the Jamesport home, and that absent those misrepresentations the decedent would not have executed the propounded instrument. In support of those assertions, objectant files documentation indicating that while the decedent was the sole owner listed on the deed to the Jamesport home, the objectant was listed as a co-owner and co-signer on the mortgage modification agreement signed by both the objectant and the decedent nearly a decade after the deed conveying the Jamesport home solely to the decedent. In his opposition, objectant does acknowledge that the propounded instrument was executed by decedent after being served with the constructive trust action, which was dated only one week prior to the execution of the propounded instrument.

In reply, petitioner notes that objectant's opposition to the motion are merely conclusory allegations and speculative conjecture in a self-serving affidavit from the objectant, as well as reliance upon information from time periods far removed from the execution of the propounded instrument, including an affidavit of the decedent dated several years prior to the execution of the propounded instrument. Petitioner also points to the deposition of objectant, where he testified that he is unaware of any specific acts or false statements by the petitioner, he merely assumes there was undue influence and fraud based upon what he believes must have occurred.

At oral argument, petitioner reiterated the assertions in her motion papers. She further detailed that the objections to the propounded instrument are baseless, noting that despite the ongoing litigation between the decedent and the objectant, objectant claims he is surprised the decedent omitted him from the will. Additionally, in response to objectant's allegations of a confidential relationship, petitioner maintains that the presence of a family relationship will serve to rebut the inference of undue influence in that instance. Petitioner further asserts that although the decedent was physically weak, objectant testified at his deposition that she continued to work daily until just before her death.

The objectant conceded at oral argument that he was not arguing that the propounded instrument was not duly executed. His opposition to the admittance of the propounded instrument to probate, was that the decedent and the objectant were married for thirty-five years and worked together side by side every day until shortly before she died, so he felt there was no reason he should be omitted from the propounded instrument. He felt this despite the fact that the decedent and objectant were suing each other in multiple proceedings at the time the propounded instrument was executed.

The argument of objectant focused on the Jamesport home and the fact that the propounded instrument resulted in him receiving only 1/3 of the value of the home, rather than the ½ he would receive had there been no will. He relies upon the statement of the petitioner in [*3]her testimony that she suggested to decedent "to go another avenue", as it related to the Jamesport home. Objectant further relies upon the notarized statement of the decedent from 2020, wherein she says that she relies solely upon her daughters to handle her day to day affairs. Objectant says the proof she did not have capacity on the day she signed the propounded instrument was that she said three years prior that "I have had to rely on my daughters who have cared for me, handled all of my insurance paperwork, and continue to take me to all of my doctor's appointments."

At oral argument, the guardian ad litem indicated that objectant's position appears to be a spillover of a matrimonial that has nothing to do with the validity of a will. The guardian ad litem asserts that nothing has been raised by objectant to refute the presumption that the propounded instrument was validly executed.

The guardian ad litem noted that an attorney of 35 years drafted and supervised the will execution. He stated, "this is a completely natural disposition of assets considering the circumstances." The guardian ad litem noted that decedent had five children, one which predeceased, and the propounded instrument splits her estate five ways. Essentially there is one share for each of her children, with the predeceased child's share going to his son. Further, she was engaged in a protracted and acrimonious matrimonial action, so it makes complete and logical sense that she "cut her husband out of the will." The guardian ad litem maintained that there is nothing before the court that would refute the presumption of validity, nor did the objectant meet any of his burdens. The guardian ad litem concluded that the issues raised by objectant during this proceeding, regarding what, if any, assets are part of decedent's estate, are really properly raised in an accounting proceeding, not a probate. In fact, objectant has already filed a notice of right of election.

Applicable Law and Discussion

Summary judgment is designed to eliminate from the trial calendar litigation that can be resolved as a matter of law (see Andre v. Pomeroy, 35 NY2d 361). The court's burden is not to resolve issues of fact, but merely to determine if such exist (see Dyckman v. Barrett, 187 AD2d 553). It is a drastic remedy that will only be awarded where there is no triable issue of fact (see Barclay v. Denckla, 182 AD2d 658). The court, therefore, must construe the facts in a light most favorable to the nonmoving party so as not to deprive that person of their day in court (see Russell v. A. Barton Hepburn Hospital, 154 AD2d 796).

The party moving for summary judgment 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 Zarr v. Riccio, 180 AD2d 734). Failure to make out a prima facie case requires denial of the motion regardless of the sufficiency of opposing papers (see Winegrad v. New York University Medical Center, 64 NY2d 851). If, however, this burden is satisfied, the burden of going forward shifts to the opposing party to establish the existence of material issues of fact requiring a trial (see Romano v. St. Vincent's Medical Center, 8 AD2d 467), by the tender of evidentiary proof in admissible form (see Friends of Animals, Inc. v. Associated Fur Manufactures Inc., 46 NY2d 1065).

Summary judgment is appropriate in probate proceedings where the proponent establishes a prima facie case and the objectant fails to raise a material issue of fact (see Matter of Neuman, 14 AD3d 567). Mere speculative assertions are insufficient to raise a triable issue of fact. (Id.)

a. Due Execution

The petitioner has the burden of proof on the issue of due execution (Matter of Sabatelli, 161 AD3d 872). Due execution requires that the testamentary instrument be signed by the testatrix, that such signature shall be affixed to the will in the presence of the attesting witnesses or that the testatrix acknowledge to each witness that the signature affixed on the instrument was affixed by her or at her direction, that the testatrix publish to the attesting witnesses that the testamentary instrument is her will, and that at least two attesting witnesses attest to the testatrix' signature, sign their names and affix their residence addresses at the end of the will (EPTL 3-2.1).

Where, as here, the execution is supervised by an attorney, the petitioner is entitled to a presumption of due execution (Matter of Collins, 60 NY2d 466; Matter of Sabatelli, supra). In the instant matter, the testimony of the attorney draftsperson, who was also a witness, indicates that decedent signed the instrument prepared by him, in his office, in his presence. He also testified that the decedent insisted on the terms of the will that were contained therein, as further detailed below.

Additionally, the propounded instrument contains a self-executing affidavit and further affidavit of both witnesses, which in totality state that the statutory formalities were followed. Specifically, that the will was subscribed by decedent, on the date thereof, at her request, in her presence and in the presence of each other, with the three being present throughout the execution and attestation of the will, which both witnesses and the decedent signed, and further indicating that decedent read the will, knew the contents thereof, and stating in all respects she appeared to be of sound mind, memory and understanding, not under any restraint or in any respect incompetent to make a will.

Objectant states in his objections that decedent did not sign the propounded instrument, publish the document as her will in the presence of the witnesses, request the said two witnesses to be witnesses thereto, and that the said alleged witnesses did not sign as witnesses in her presence or in the presence of each other. However, at his deposition objectant testified that the signature on the document was that of the decedent and he has no idea what publication is. In fact, during his deposition, objectant admitted he was not really contesting the fact that the propounded instrument was properly executed, he just found it hard to believe that the decedent omitted him from her will, even though they were involved in a divorce proceeding and objectant was suing her for constructive trust of the Jamesport home. The objectant does not address the issue of due execution at all in his opposition to the instant motion and at oral argument he conceded that he is not challenging the execution of the propounded instrument.

Absent from the record is any testimony or proof that the propounded instrument was not executed in conformity with applicable law (see Matter of Weinberg, 1 AD3d 523). Accordingly, petitioner is entitled to judgment as a matter of law dismissing the objections that the propounded instrument was not duly executed.

b. Testamentary Capacity

Testamentary capacity requires that the testatrix be eighteen (18) years of age or older and be of sound mind and memory (EPTL 3-1.1). Within the context of making a will, capacity is the ability to think with sufficient clarity to understand and carry out the business to be transacted; to hold in mind the extent and nature of her property, the natural objects of her bounty, and the relation of one to the other (In re Heaton's Will, 224 NY 22).

The burden of proving testamentary capacity and understanding is on the proponent (Matter of Kumstar, 66 NY2d 691, rearg. denied, 67 NY2d 647). Testamentary capacity may be established with evidence demonstrating that the decedent understood the nature and consequences of executing a will, knew the nature and extent of the property disposed of, and knew the identity and relation of those considered to be the natural objects of her bounty (see Matter of Kumstar, supra), but a testator need not have precise knowledge of his estate (see Matter of Fish, 134 AD2d 44). All testators are presumed to have testamentary capacity, which is something less than contractual capacity (see Matter of Martinico, 177 AD3d 882, citing Matter of Coddington, 281 AD 143, aff'd 307 NY 181). Although ordinarily the opinion of a lay witness is not admissible for the purpose of determining soundness of mind, in a probate proceeding, the testimony of a subscribing witness may be used for such purpose (In Matter of Nogueira, 32 Misc 2d 446). Testamentary capacity at the time the will was executed may be established prima facie by submitting the self-proving affidavit of the attesting witnesses, other affidavits, and deposition testimony of those witnesses (Matter of Armato, 199 AD3d 999).

The record, when taken as a whole, establishes that at the time when the will was executed, decedent possessed the capacity required by EPTL 3-1.1 to make a will. The testimony of the attorney draftsperson, who was one of the two attesting witnesses, indicates that the decedent knew the nature and extent of her property, those who would be considered the natural objects of her bounty, and that she understood the nature and consequences of executing the will (Matter of Kumstar, supra).

According to the attorney draftsperson, the decedent not only did not want her husband to inherit anything from her estate, she was adamant that her spouse was not to be mentioned at all in the will. He testified that "she wanted no part of him in the will", even though she was made aware that he could be entitled to a right of election. The attorney draftsperson indicated this was because "she was going though a horrible acrimonious divorce that was taking way too long, and she wanted not anything ever to go to [the spouse]."

Based upon the foregoing petitioner has established prima facie that decedent was of sound mind and memory when she executed the will (EPTL 3-1.1; see In re Delmar's Will, 243 NY 7). At this point, the burden shifts to respondents to lay bare their proof, in admissible form, in order to create a triable issue of fact with respect to decedent's testamentary capacity.

Although objectant raises the issue that decedent lost a tremendous amount of weight from chemotherapy and was unable to drive in the weeks prior to her death, objectant also testified at his deposition that the decedent was working five days a week, five hours a day, at the time the propounded instrument was executed and up until sixteen days before she passed away. Further, one of objectant's main arguments in this matter, is that decedent continued to work until days before her death.

Objectant further points to the notarized statement of the decedent from 2020, wherein she says that she relies solely upon her daughters to handle her day to day affairs. Objectant asserts the proof the decedent did not have capacity on the day she signed the propounded instrument was that she said three years prior, in her notarized statement in 2020, "I have had to rely on my daughters who have cared for me, handled all of my insurance paperwork, and continue to take me to all of my doctor's appointments." Objectant fails to state that the same paragraph states that decedent alleged this was because objectant was completely ignoring her and barely acknowledged her, as she further stated, "After a year of enduring exhausting and painful treatments, I remained invisible to [objectant]."

Objectant has not stated any assertions, let alone provided any evidence, that on the date the decedent executed the propounded instrument, the decedent did not know the nature and extent of her property, those who would be considered the natural objects of her bounty, or that she did not understand the nature and consequences of executing the will. Further, objectant had the opportunity to depose both witnesses to the propounded instrument, but seems to have only deposed the witness who was also the attorney draftsman. Thus, since discovery is complete in this matter, it appears that objectant is unable to offer anything more than mere speculation as to decedent's capacity at the time of the propounded instrument's execution. Further, some of his testimony contradicts that speculation, lending support in favor of a finding of testamentary capacity (see Matter of Kumstar, supra). Accordingly, on the issue of testamentary capacity, petitioner's motion is granted and respondents' objection thereto is dismissed.

c. Undue Influence

The respondent bears the burden of proof on the issues of undue influence(see, Matter of Victor J., 165 AD3d 655).

As a threshold issue, the court shall consider whether a confidential relationship existed between decedent and her daughter, as a finding of the existence of such relationship would affect the burdens of proof. The existence of a confidential relationship is ordinarily a factual determination based upon evidence of other facts or circumstances showing inequality or controlling influence (Matter of Nealon, 104 AD3d at 1089; Matter of Bonczyk v. Williams, 119 AD3d 1124). Further, a close family relationship "counterbalances any contrary legal presumption," (see Matter of Walther's Will, 6 NY2d 49; see Matter of Camac, 300 AD2d 11; Matter of Victor J., supra). Even in the presence of a confidential relationship, the proponent can rebut the presumption of undue influence with ample evidence to demonstrate why the decedent chose a certain testamentary plan. (see Matter of Zirinsky, 43 AD3d 946).

Here, the petitioner is the daughter of the decedent and all of the testimony submitted, including that of the objectant, clearly demonstrates a close familial relationship between petitioner and the decedent. Additionally, there is no evidence that petitioner had any direct or indirect involvement in the preparation or execution of the instrument (Matter of Henderson, 80 NY2d 388; Cordi v Karnbad, 214 AD2d 476), or that decedent had not independently determined what her estate plan would be. The testimony of both the attorney draftsman/witness and the petitioner indicate that the decedent sought out the attorney on her own; decedent determined the terms of the will, over a period time and after consultation with her lawyer; and [*4]the petitioner had no part in the drafting or execution of the will.

Accordingly, the court finds that there was no confidential relationship between petitioner and decedent (see Matter of Camac, supra, In re Estate of Nealon, supra). As the court has found the absence of a confidential relationship, the burden of proof on the issue of undue influence remains with objectant. To establish the undue influence claim, respondent must show (1) the existence and exercise of undue influence; (2) the effective operation of undue influence as to subvert the mind of the testatrix at the time of the execution of the will; and (3) the execution of a will that, but for undue influence, would not have occurred. Thus, the three elements are motive, opportunity, and the actual exercise of the influence (Matter of Walther, supra) resulting in the decedent disposing of her property in a different manner than she otherwise would have Matter of Holly, 16 AD2d 611, aff'd, 13 NY2d 746).

While undue influence can rarely be shown by direct proof, there must be affirmative evidence of facts and circumstances from which the exercise of such undue influence can fairly and necessarily be inferred (see Matter of Malone, 46 AD3d 975). If circumstantial evidence is offered, it must be of a substantial nature and if the circumstantial evidence would support conflicting inferences, a conclusion of undue influence cannot be made (see Matter of Ryan, 34 AD3d 212; Matter of Walther, supra). Critically, there must be a showing that undue influence was actually exerted, mere speculation is insufficient. (see Matter of Victor J., supra).

Objectant's claims of undue influence in relation to the propounded instrument are speculative and unsupported by the record. Objectant relies upon the statement of the petitioner in her deposition testimony that she suggested to decedent "to go another avenue", as it related to the Jamesport home. However, a review of that testimony referenced by objectant indicates that the petitioner purchased a home in Wading River, to which decedent moved approximately one week prior to her death because it was believed that the matrimonial court would force a sale of the Jamesport home. Therefore, the statement objectant relies upon has nothing to do with the contents of the propounded instrument.

Further, although objectant testified in his deposition that he found it hard to believe that the decedent omitted him from her will, the record is abundantly clear as to why the decedent did so. It is clear that decedent was involved in a years-long contentious divorce proceeding with objectant and he served her with a constructive trust action seeking rights to the Jamesport home, mere days prior to her executing the propounded instrument.

When asked at his deposition for a specific example of behavior to support his assertion that petitioner was controlling or manipulating the decedent, objectant responded, "I didn't witness anything." He further explained, "what other conclusion could I come to that she was manipulating her mother because her mother was not a vengeful person. She had a big heart and that was the reason I loved my wife. We just grew apart."

Accordingly, the court finds that the objectant has failed to meet his burden of proof and the propounded instrument was not a product of undue influence.

d. Fraud

The elements of fraud include a knowing misrepresentation of a material fact, deception, and resultant injury (Matter of Spangenberg, 248 AD2d 543; Matter of Walther, supra). To prove fraud in the context of a will contest, the objectant has the burden and must show by clear and convincing evidence that a false statement was made to the testatrix inducing her to execute a will disposing of her property differently than she would have if she had not heard the fraudulent statement (Matter of Coniglio, 242 AD2d 901; see Matter of Victor J., 165 AD3d 655).

Objectant asserts that petitioner made misrepresentations to the decedent regarding the status of the ownership of the Jamesport home, and that absent those misrepresentations the decedent would not have executed the propounded instrument. In support of those assertions, objectant submitted documentation indicating that while the decedent was the sole owner listed on the deed to the Jamesport home, the objectant was listed as a co-owner and co-signer on the mortgage modification agreement signed by both the objectant and the decedent nearly a decade after the deed conveying the Jamesport home solely to the decedent. However, objectant does not allege any specific statement or misrepresentation that the petitioner said to the decedent. He also testified in his deposition that objectant does acknowledge that the propounded instrument was executed by decedent after being served with the constructive trust action, which was dated only one week prior to the execution of the propounded instrument.

Other than the foregoing assertions, objectant has failed to provide any proof to support an objection to the propounded instrument on the basis of fraud. Accordingly, on the issue of fraud, petitioner's motion is granted and the objection thereto is dismissed.

Conclusion

Upon this record, petitioner has established that she is entitled to judgment as a matter of law dismissing the objections to probate of the propounded instrument. With the objections to probate having been dismissed, the court is satisfied that the last will and testament of the decedent dated August 8, 2023, was duly executed and, at the time of execution, decedent was in all respects competent to make a will and not under restraint. The genuineness of the will and the validity of its execution having been proven to the satisfaction of the court, probate is hereby granted (SCPA 1408; EPTL 3-2.1).

Letters testamentary shall issue to petitioner, upon entry of the decree herein and upon duly qualifying according to law, without bond. Upon entry of the decree herein, preliminary letters, if any, shall be revoked.

The allowance awarded the guardian ad litem for services rendered to his ward shall be set forth in the decree to be entered herein.