IN RE ZIRINSKY

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Docket Number

No. 2006-00012.

Attorney(S)

Novick Associates, Huntington, N.Y. (Donald Novick of counsel), for objectants-appellants. Greenfield Stein and Senior, LLP, New York, N.Y. (Gary B. Freidman pro se of counsel), for Gary B. Freidman, nonparty-appellant. Farrell Fritz, P.C., Uniondale, N.Y. (John R. Morken, Ilene S. Cooper, and Jaclene D'Agostino of counsel), for petitioner-respondent. Ruskin Moscou Faltischek, P.C., Uniondale, N.Y. (Michael K. Feigenbaum pro se and Robert F. Regan of counsel), for nonparty-respondent.

Judges

Reinaldo E. Rivera

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Smart Summary

Factual and Procedural Background

This appeal arises from a contested probate proceeding involving the estate of Ruth Zirinsky, deceased. The objectants, Linda Zirinsky Gilbert and Jill Zirinsky Hirsch, daughters of the decedent, challenged the probate of the decedent’s will, alleging undue influence by their brother, Robert Zirinsky, the proponent of the will. The proponent moved for summary judgment dismissing the objections, which the Surrogate's Court granted, admitting the will to probate. The objectants and Gary B. Freidman, guardian ad litem for certain grandchildren, separately appealed from the Surrogate's Court's December 6, 2005 decree.

The objectants contended that Robert Zirinsky exercised undue influence to alter the decedent’s longstanding estate plan, which had previously treated all three children equally. The new will provided that Robert would receive 50% of the family business and affiliated interests, while the objectants would each receive 25%. The decedent had explained in a letter accompanying the will that she loved all her children equally but believed it equitable for Robert, the only active participant in the family business, to receive a larger share. The will was executed within a year of the decedent’s cancer diagnosis at age 63. It was undisputed that the decedent lived a full and active life for eight years after executing the will, remaining close to all her children.

Legal Issues Presented

Whether the Surrogate's Court properly granted summary judgment dismissing objections to probate based on alleged undue influence exercised by the proponent over the decedent.
Whether the objections based on alleged fraud were properly dismissed.
Whether the objectants and guardian ad litem were entitled to additional discovery prior to the summary judgment determination.

Arguments of the Parties

Objectants' and Guardian ad Litem's Arguments

The proponent exercised undue influence over the decedent, leveraging a confidential relationship and involvement in the drafting process to induce the decedent to alter her will against her free will.
An inference of undue influence sufficient to require a trial arises from the proponent’s role as attorney and cotrustee, his confidential relationship with the decedent, and his participation in selecting the drafting attorney and initial meeting.
They contended that additional discovery was necessary to uncover facts essential to oppose the summary judgment motion.
They alleged fraud but failed to provide evidence that any false statements caused the decedent to execute the will differently than she otherwise would have.

Proponent's Arguments

The will was duly executed and the decedent possessed testamentary capacity at the time of execution.
No undue influence or fraud was exercised upon the decedent.
The decedent was alert, strong-minded, and independent despite her illness, and made a reasoned decision to alter the will in favor of the proponent due to his active role in the family business.
The confidential relationship was offset by the closeness of the family, negating any inference of undue influence.
The objectants and guardian ad litem failed to show that essential facts were exclusively within the proponent’s knowledge, thus additional discovery was unwarranted.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Matter of Spinello, 291 AD2d 406, 407	Establishing prima facie entitlement to judgment on summary judgment by showing due execution, testamentary capacity, and absence of undue influence or fraud.	Used to support the proponent’s prima facie entitlement to summary judgment dismissing objections.
Matter of Bustanoby, 262 AD2d 407, 408	Similar to Spinello, relating to summary judgment standards in probate contests.	Reinforced the legal standards for summary judgment dismissal of objections.
Matter of Walther, 6 NY2d 49, 53-56	Definition and evidentiary standards for undue influence invalidating a will; undue influence must amount to moral coercion destroying free agency.	Provided the controlling standard for undue influence; court found no substantial circumstantial evidence to infer undue influence.
Children's Aid Socy. of City of N.Y. v Loveridge, 70 NY 387, 394	Definition of undue influence as moral coercion restraining free will.	Quoted to clarify the required showing for undue influence.
Matter of Neenan, 35 AD3d 475	Confidential relationship as a factor in undue influence analysis.	Referenced to acknowledge the confidential relationship but balanced against family closeness.
Matter of Fiumara, 47 NY2d 845, 847	Undue influence and fraud standards; evidence of opportunity and motive alone insufficient to raise triable issue.	Supported dismissal of objections absent proof of actual undue influence or fraud.
Matter of Ryan, 34 AD3d 212	Undue influence standards and evidentiary requirements.	Used to reinforce the court’s finding of no undue influence.
Matter of Seelig, 13 AD3d 776	Undue influence evidentiary standards.	Further supported the court’s conclusion that no inference of undue influence was warranted.
Matter of Evanchuk, 145 AD2d 559, 560	Elements required to prove fraud invalidating a will.	Applied to dismiss fraud objection for lack of evidence of false statements causing the will’s execution.
Matter of Bianco, 195 AD2d 457, 458	Fraud standards in probate proceedings.	Reinforced dismissal of fraud claims.
Matter of D'Agostino, 284 AD2d 857, 861	Fraud and undue influence standards.	Supported dismissal of objections absent proof of fraud or undue influence.
CPLR 3212(f)	Requirement that facts essential to opposition must not be exclusively within moving party’s knowledge to deny summary judgment.	Applied to find no basis for additional discovery because objectants failed to show exclusive knowledge by proponent.
Matter of DiCorcia, 35 AD3d 463	Exclusive knowledge standard for discovery in summary judgment context.	Supported denial of cross-motion for additional discovery.

Court's Reasoning and Analysis

The court affirmed the Surrogate's Court’s grant of summary judgment dismissing the objections to probate. The proponent demonstrated prima facie entitlement to judgment as a matter of law by proving due execution of the will, testamentary capacity of the decedent, and absence of undue influence or fraud. The court applied established legal standards requiring undue influence to amount to moral coercion destroying free agency, which must be supported by substantial circumstantial evidence.

The court found that despite the decedent’s cancer diagnosis, she was alert, strong-minded, and independent when executing the will. Her decision to favor the proponent, who actively managed the family business, was a reasoned exercise of testamentary power and not the product of undue influence. While a confidential relationship existed, it was counterbalanced by the close family relationships, negating any inference of undue influence. Furthermore, the objectants failed to produce evidence of fraud or that false statements caused the decedent to execute the will differently than she intended.

The court also concluded that the objectants and guardian ad litem did not demonstrate that facts essential to oppose the summary judgment were exclusively within the proponent’s knowledge, thus denying their request for additional discovery. Remaining contentions were found without merit.

Holding and Implications

The decree of the Surrogate's Court granting summary judgment dismissing the objections to probate and admitting the will to probate is affirmed.

The appellants are directed to pay one bill of costs. The decision directly resolves the probate dispute by confirming the validity of the decedent’s will and denying claims of undue influence and fraud. No new legal precedent is established; rather, the court applied well-settled principles concerning undue influence, testamentary capacity, and summary judgment standards in probate contests.

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In the Matter of the Estate of RUTH ZIRINSKY, Deceased. ROBERT ZIRINSKY, Respondent; LINDA ZIRINSKY GILBERT et al., Appellants. GARY B. FREIDMAN, Nonparty Appellant; MICHAEL K. FEIGENBAUM, Nonparty Respondent.

Ordered that the decree is affirmed, with one bill of costs payable by the appellants appearing separately and filing separate briefs.

The objectants in this probate proceeding are the daughters of the decedent, Ruth Zirinsky. They contend that their brother, Robert Zirinsky, the proponent of the decedent's will, exercised undue influence over the decedent to induce her to depart from her longstanding estate plan which treated all three children equally, and to instead execute a new will in which she exercised a testamentary power of appointment in such a way that the proponent would receive 50% of the family business and affiliated interests, and the objectants would each receive 25%. The decedent explained in a letter to her children that accompanied the will that she loved them "all equally," but had made the difficult decision that it was "both equitable and in the long term interest of the business that Robert, as the only active participant, should succeed to a larger share." The will was executed within a year after the decedent had been diagnosed with cancer at the age of 63. The record is undisputed that, for the next eight years until she died, the decedent continued to reside with her second husband, leading a full and active life, and remaining close to all her children.

The Surrogate's Court granted the proponent's motions for summary judgment dismissing the objections to probate of the decedent's will, and we affirm. In support of his motions, the proponent established his prima facie entitlement to judgment as a matter of law by showing, among other things, that the will had been duly executed, that the decedent possessed testamentary capacity, and that no undue influence or fraud had been exercised upon the decedent ( see Matter of Spinello, 291 AD2d 406, 407; Matter of Bustanoby, 262 AD2d 407, 408). In opposition, the objectants and Gary B. Freidman, the guardian ad litem for the objectants' children, contended that an inference of undue influence sufficient to require a trial arose from the evidence, inter alia, that the proponent, an attorney and cotrustee with the decedent of trusts established for her benefit, was in a confidential relationship with the decedent, and that he was involved in selecting the attorney who drafted the will and participated in the first meeting between the decedent and the attorney draftsman.

For a will to be invalidated based on undue influence, "`[i]t must be shown that the influence exercised amounted to a moral coercion, which restrained independent action and destroyed free agency, or which, by importunity which could not be resisted, constrained the testator to do that which was against his free will and desire, but which he was unable to refuse or too weak to resist'" ( Matter of Walther, 6 NY2d 49, 53, quoting Children's Aid Socy. of City of N.Y.v Loveridge, 70 NY 387, 394). Undue influence "may . . . be proved by circumstantial evidence, but this evidence . . . must be of a substantial nature" ( Matter of Walther, 6 NY2d at 54). The record as a whole establishes that the decedent, although undergoing treatment for cancer, was alert, strong-minded, and financially, mentally, and emotionally independent when she decided to change her will to favor the proponent, who had actively managed the family real estate business. The fact that the proponent may have been in a confidential relationship with the decedent ( see Matter of Neenan, 35 AD3d 475) is counterbalanced in this case by the closeness of the family ( see Matter of Walther, supra at 56). No inference of undue influence arises in these circumstances ( see Matter of Fiumara, 47 NY2d 845, 847; Matter of Walther, supra; Matter of Ryan, 34 AD3d 212; Matter of Seelig, 13 AD3d 776).

The Surrogate's Court also properly dismissed the objection based on fraud, since the objectants and Freidman failed to submit any evidence that someone "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" ( Matter of Evanchuk, 145 AD2d 559, 560; see Matter of Bianco, 195 AD2d 457, 458; Matter of D'Agostino, 284 AD2d 857, 861). Without a showing that undue influence or fraud was actually exercised upon the decedent, evidence that opportunity and motive existed to exert such influence will not suffice to raise a triable issue as to whether the will reflected the intent of the testator ( see Matter of Fiumara, supra at 847; Matter of Walther, supra).

The objectants and Freidman failed to establish that facts essential to oppose the cross motion were within the exclusive knowledge of the proponent ( see CPLR 3212 [f]; Matter of DiCorcia, 35 AD3d 463).

The remaining contentions of the objectants and Freidman are without merit. [ See 10 Misc 3d 1052(A), 2005 NY Slip Op 51881(U).]