Matter of Worsell: Functional-Equivalent Compliance with Former 22 NYCRR 202.8-g and Limited Dead Man’s Statute Bar on Summary Judgment in Will Contests

1. Introduction

In Matter of Worsell (Appellate Division, Third Department, Mar. 12, 2026), the court reviewed a contested probate proceeding under SCPA article 13 involving the estate of Douglas R. Worsell. The decedent’s 2018 will left his entire estate to his sister, Sandra Sweazey (petitioner), who also served as his primary caretaker. The objectants were the decedent’s estranged children (respondents), who challenged the will on grounds including lack of capacity and undue influence.

The appeal focused on (i) whether Surrogate’s Court properly granted partial summary judgment finding a confidential and/or fiduciary relationship (thereby shifting the undue-influence burden), (ii) whether respondents’ motion papers were procedurally defective under 22 NYCRR former 202.8-g for lacking pinpoint evidentiary citations in the statement of material facts, and (iii) whether the Dead Man’s Statute (CPLR 4519) barred consideration of certain deposition testimony at the summary judgment stage.

2. Summary of the Opinion

The Third Department affirmed the order. It held:

  • Respondents’ failure to include evidentiary citations in the separate statement of material facts was not fatal because their motion papers contained a “functional[ly] equivalent” set of citations and petitioner showed no prejudice.
  • Petitioner did not dispute the existence of a confidential and/or fiduciary relationship; the record supported that finding based on her extensive caretaking and involvement in the decedent’s affairs.
  • Although petitioner made a sufficient initial showing that the will was not the product of undue influence (including through the drafting attorney’s testimony and the presumption of regularity from due execution), respondents raised triable issues of fact on undue influence, precluding summary judgment for petitioner.
  • Even if certain testimony might be barred at trial by CPLR 4519, it could be considered on summary judgment so long as it was not the sole evidence offered; here it was not.

3. Analysis

3.1. Precedents Cited

Matter of Dibble

The court relied on Matter of Dibble to support two core propositions: (1) the evidentiary indicia of a confidential relationship in a caretaker-beneficiary context, and (2) the burden shift requiring the beneficiary in such a relationship to prove by clear and convincing evidence that the benefit was not procured by undue influence. Worsell uses Dibble to frame petitioner’s caretaking as the sort of dependency-based relationship that triggers heightened scrutiny.

Taveras v Incorporated Vil. of Freeport

Taveras v Incorporated Vil. of Freeport supplied the procedural template: a court need not deny a motion for noncompliance with a technical rule governing statements of material facts when the movant provides a “functional[ly] equivalent” presentation and the opponent cannot show prejudice. Worsell imports that principle into a Surrogate’s Court summary judgment context and treats the supporting memorandum/affirmation (with citations) as curing the missing citations in the separate factual statement.

Matter of Ostrander

Matter of Ostrander was cited for the general standard of review (Surrogate’s discretion) and the cautionary point that summary judgment is “rare” in contested probate matters, yet available where a prima facie case for probate is established and objectants fail to raise triable issues on capacity, execution, undue influence, or fraud. Worsell uses Ostrander to explain why the case could be decided on summary judgment as to certain issues (confidential relationship) but not as to undue influence.

Matter of Linich

Matter of Linich provided the working definition and elements of undue influence—motive, opportunity, and actual exercise—along with the “will is actually that of the influencer” formulation. Worsell aligns the objectants’ evidence (dependency, control over medical care, urgency of attorney appointment, testimony of alleged controlling behavior, and evidence of mental health/substance issues) with Linich to find triable issues.

Matter of Nealon (affd 22 NY3d 1045 [2014])

Matter of Nealon was cited for the limiting principle that a family relationship alone does not create a presumption of undue influence; something more—inequality, control, or other circumstances—is required. Worsell treats petitioner’s status as a sister as legally insufficient by itself, but finds that her extensive caretaker role and alleged control are the “something more” that can support an undue influence claim.

Matter of Dralle

Matter of Dralle supported the “presumption of regularity” arising from proper will execution. Worsell applies it to credit formal execution and the drafting attorney’s observations as part of petitioner’s prima facie showing—while emphasizing that the presumption does not end the inquiry when contrary circumstantial evidence raises fact questions.

Matter of Haley

Matter of Haley reinforced that undue influence is often proven circumstantially and that issues of influence frequently are not resolvable as a matter of law when the record supports competing inferences. Worsell uses it (with Linich) to justify letting a factfinder weigh the contested narrative rather than granting summary judgment on undue influence.

Matter of McNeil

Matter of McNeil was central to the Dead Man’s Statute issue. It stands for the proposition that evidence potentially excludable at trial under CPLR 4519 may still be considered on summary judgment, so long as it is not the sole evidence offered in opposition. Worsell applies McNeil to reject petitioner’s attempt to strike deposition testimony about the decedent’s statement that petitioner was “controlling his life.”

3.2. Legal Reasoning

A. Procedural compliance: former 22 NYCRR 202.8-g

The court treated former 22 NYCRR 202.8-g as a case-management rule aimed at clarifying the factual record on summary judgment. While respondents’ separate statement of material facts lacked required evidentiary citations, their supporting memorandum of law and attorney affirmation supplied citations “for each fact alleged.” On that basis—and because petitioner showed no prejudice—the court declined to impose the harsh remedy of denying the motion.

Doctrinally, this is a “substance over form” approach: the key question is whether the court and the opposing party were meaningfully able to identify the record support for asserted facts. Worsell indicates that a technical defect in the standalone statement may be excused when the motion papers as a whole provide the functional equivalent.

B. Confidential/fiduciary relationship and burden shifting

Because petitioner did not challenge the confidential/fiduciary relationship finding, the appeal proceeded on a narrowed posture. Still, the court’s description is instructive: the decedent was disabled, dependent on dialysis, and petitioner handled medical appointments, health care, legal matters, supplies, and financial support for years. This level of reliance and involvement supports the conclusion that petitioner occupied a position of trust and influence sufficient to shift the burden on undue influence.

C. Summary judgment on undue influence: competing inferences

The court applied a two-step, burden-sensitive summary judgment analysis:

  1. Petitioner’s prima facie showing. Petitioner relied heavily on the drafting attorney’s deposition: he discussed disinheritance with the decedent, the decedent was “adamant,” and the attorney saw nothing concerning in demeanor. Together with due execution, this established the presumption of regularity.
  2. Respondents’ triable issue showing. Respondents countered with circumstantial and testimonial evidence suggesting motive, opportunity, and possible exercise of influence: alleged prior intent to benefit children, petitioner’s role in scheduling the attorney appointment with urgency, the attorney’s lack of awareness of traumatic brain injury/mental illness/marihuana use, a friend’s testimony about delusions/confusion, petitioner’s admitted resentment and removal of children from visitation, and testimony that decedent said petitioner was controlling his life.

Rather than deciding credibility or choosing between narratives, the court held that these facts could support an inference of undue influence and therefore must be resolved at trial. The opinion underscores that undue influence claims often turn on “surrounding circumstances” and the totality of relational dynamics, not a single dispositive fact.

D. Dead Man’s Statute and summary judgment proof

Invoking Matter of McNeil, the court reaffirmed a practical evidentiary rule for motion practice: even if certain testimony about communications with a decedent may be barred at trial under CPLR 4519, it can be considered on summary judgment so long as it is not the only proof offered. Here, the challenged statement was only one piece within a broader mosaic of evidence about dependency, control, and the will’s procurement.

This reasoning avoids converting CPLR 4519 into an automatic “summary judgment shield” for the will proponent in caregiver-beneficiary disputes, while still preserving the statute’s trial-stage exclusionary function.

3.3. Impact

Motion practice in New York courts (former 22 NYCRR 202.8-g)

Although former 22 NYCRR 202.8-g was repealed, Worsell remains instructive for analogous procedural regimes and for courts’ general approach to technical defects in motion formatting: where record citations exist elsewhere in the papers and no prejudice is shown, the court may reach the merits. Practically, litigants should not assume technical noncompliance guarantees denial; conversely, movants should not rely on leniency—especially where a court cannot easily trace facts to proof.

Will contests involving caregiver-beneficiaries

Worsell reinforces a recurring pattern in probate litigation: a confidential relationship can shift the burden to the beneficiary, but the beneficiary may still make a prima facie showing through drafting-attorney testimony and execution formalities. The decisive question becomes whether objectants can point to circumstantial evidence creating triable issues on motive, opportunity, and exercise—especially where the caregiver controls access, scheduling, and daily life.

Dead Man’s Statute as a limited tool at the summary judgment stage

The opinion strengthens the principle that CPLR 4519 generally will not eliminate an objectant’s ability to defeat summary judgment when other evidence corroborates the challenged communications. For litigators, this places a premium on building a multi-source evidentiary record (medical history, third-party witnesses, timeline of procurement, access restrictions, and drafting-attorney knowledge gaps).

4. Complex Concepts Simplified

  • Confidential and/or fiduciary relationship: A relationship where one person reasonably places trust in another who has superior influence or control (often due to dependency). In probate, this can trigger heightened scrutiny of transactions benefiting the trusted person.
  • Burden shifting (undue influence): Once a confidential relationship is shown and the beneficiary profits, the beneficiary may have to prove (here, “by clear and convincing evidence”) the absence of undue influence.
  • Clear and convincing evidence: A higher standard than “more likely than not,” requiring proof that makes the fact highly probable.
  • Presumption of regularity: If a will appears properly executed, courts presume regularity in execution, supporting probate unless rebutted by contrary proof.
  • Undue influence (motive, opportunity, exercise): Not just the chance to influence, but evidence the influence was actually used so the will reflects the influencer’s intent rather than the decedent’s.
  • Dead Man’s Statute (CPLR 4519): A rule limiting testimony about communications with a decedent in certain cases, designed to prevent one-sided accounts when the decedent cannot respond. Worsell reiterates that, on summary judgment, such testimony can be considered if it is not the sole proof.
  • Summary judgment: A pretrial ruling granted only when there is no genuine dispute of material fact; in will contests it is “rare” because intent, influence, and credibility often require trial.

5. Conclusion

Matter of Worsell is significant for three reasons. First, it adopts a pragmatic, prejudice-based approach to technical defects in summary judgment statements of material facts, accepting a “functional[ly] equivalent” set of citations contained elsewhere in the motion papers. Second, it illustrates how a caretaker’s extensive involvement can establish a confidential relationship and shift the burden regarding undue influence, without making undue influence automatic. Third, it confirms that the Dead Man’s Statute generally will not prevent an objectant from defeating summary judgment when the challenged testimony is corroborated by other evidence.