HON. MARGARET C. REILLY JUDGE
Unpublished Opinion
John D. Scherer, Esq. Lester & Associates, P.C.
Joseph W. Peckelis 1 Hilltop Road
AMENDED DECISION
HON. MARGARET C. REILLY JUDGE
The following papers were considered in the preparation of this decision:
Notice of Motion.. ............................................ 1
Affirmation in Support of Motion with Exhibits. . . . ................. 2
Petitioner's Memorandum of Law in Support. . ..................... 3
Affidavit in Opposition.. ....................................... 4
The court hereby sua sponte vacates its decision, dated June 22, 2021 and replaces it with the following:
In this contested probate proceeding, Joy M. Hood (petitioner), moves for an order: (1) pursuant to CPLR 3212, granting summary judgment dismissing respondent's objections in their entirety and admitting the will of Albert J. Peckelis (decedent) to probate; (2) awarding the petitioner sanctions and costs for bringing this motion; and (3) substituting pursuant to CPLR 1015 (a) the petitioner for Rosemarie LoPresti, who post-deceased the decedent. The respondent/objectant, Joseph W. Peckelis, opposes the motion.
The decedent, Albert J. Peckelis, also known as Albert Peckelis, died a resident of Nassau County on July 17, 2016, survived by his three adult siblings: Patricia Korn, Susan Peckelis and Joseph Peckelis. An instrument purported to be the last will and testament of the decedent, dated April 10, 2016, was offered for probate by Rosemarie LoPresti, the nominated executor, as well as the sole beneficiary of the decedent's estate. Rosemarie LoPresti died on June 16, 2018. The petitioner was appointed the executor of Rosemarie LoPresti's estate by decree of this court, dated August 24, 2018. The petitioner filed a notice of appearance in the instant proceeding on March 15, 2019.
CPLR 1015 (a) provides "[i]f a party dies and the claim for or against him is not thereby extinguished the court shall order substitution of the proper parties." Where a litigant dies during a pending proceeding, "the court must (sua sponte, or on motion) order substitution of the proper party, normally the executor or administrator of the deceased's estate" (Matter of Guide, NYLJ, Dec. 11, 1991 at 22, col. 6 [Sur Ct, Nassau County 1991]). The respondent's arguments that the petitioner lacks standing have no merit. Accordingly, the petitioner's motion to be substituted pursuant to CPLR 1015 is GRANTED.
The respondent filed objections to probate alleging: lack of due execution, lack of testamentary capacity and undue influence. The petitioner now seeks summary judgment dismissing the respondent's objections and granting probate.
SUMMARY JUDGMENT
"[T]he 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 N.Y.2d 320, 324 [1986]). The failure to make such a prima facie showing requires denial of the motion, regardless of the sufficiency of the opposing papers (Winegrad v New York Univ. Med. Ctr, 64 N.Y.2d 851 [1985]). "Once this showing has been made, however, 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" (Alvarez v Prospect Hosp., 68 N.Y.2d 320, 324 [1986]).
Due Execution
The proponent has the burden of proof on the issue of due execution (Matter of Moskowitz, 116 A.D.3d 958 [2d Dept 2014]). EPTL 3-2.1 provides, in part:
"(a) . . . every will must be in writing, and executed and attested in the following manner:
(1) It shall be signed at the end thereof by the testator . . .
(2) The signature of the testator shall be affixed to the will in the presence of each of the attesting witnesses, or shall be acknowledged by the testator to each of them to have been affixed by him or by his direction . . .
(3) The testator shall, at some time during the ceremony or ceremonies of execution and attestation, declare to each of the attesting witnesses that the instrument to which his signature has been affixed is his will.
(4) There shall be at least two attesting witnesses, who shall, within one thirty day period, both attest the testator's signature, as affixed or acknowledged in their presence, and at the request of the testator, sign their names and affix their residence addresses at the end of the will . . . . "
"Where the will is drafted by an attorney and the drafting attorney supervises the will's execution, there is a presumption of regularity that the will was properly executed in all respects" (Matter of Sabatelli, 161 A.D.3d 872, 873-874 [2d Dept 2018]). The presumption, however, is rebuttable (Matter of Clark, NYLJ, Aug. 23, 2013 at 38 [Sur Ct, New York County 2013]). The presence of an attestation clause and a self-proving affidavit also gives rise to a presumption that the statutory requirements were satisfied (Matter of Malan, 56 A.D.3d 479 [2d Dept 2008]).
The execution of the propounded instrument, which includes an attestation clause and a self-proving affidavit, was supervised by the attorney who drafted it, as well as another attorney, thereby creating a presumption of regularity. In support of her motion for summary judgment, the petitioner offers the deposition testimony and affidavit of the attorney draftsman, the depositions and affidavits of the two attesting witnesses, as well as the affidavit of the additional attorney present at the execution, all of which bolster the presumption of due execution and demonstrate full compliance with the necessary statutory requirements for proper execution of a will.
The petitioner has successfully met her burden of proving due execution of the propounded instrument. The burden of proof then shifts to the respondent to produce evidentiary proof in admissible form to raise a material issue of fact (Matter of Halpern, 76 A.D.3d 429 [1st Dept 2010], affd 16 N.Y.3d 777 [2011]). The respondent has failed to do so. The respondent's affidavit in opposition fails to address the issue of due execution at all. There being no issue of fact concerning due execution, summary judgment is GRANTED to the petitioner dismissing this objection.
Testamentary Capacity
The proponent has the burden of proving testamentary capacity (Matter of Kumstar, 66 N.Y.2d 691 [1985]). This burden may be met by "establishing that the decedent understood the nature and consequences of making the will, the nature and extent of his or her property, and the natural objects of his or her bounty" (Matter of Sabatelli, 161 A.D.3d 872, 874 [2d Dept 2018]). Mere proof that the decedent suffered from physical infirmity is not necessarily inconsistent with testamentary capacity and does not preclude a finding thereof (Matter of Fiumara, 47 N.Y.2d 845 [1979]) as the relevant inquiry is whether the decedent was lucid and rational at the time the will was made and executed (see Matter of Hedges, 100 A.D.2d 586 [2d Dept 1984]). "[U]ntil the contrary is established a testator is presumed to be sane and have sufficient mental capacity to make a valid will" (Matter of Scher, 20 Misc.3d 1141[A] [Sur Ct, Kings County 2008], citing Matter of Betz, 63 A.D.2d 769 [3d Dept 1978]).
The respondent, in his objections, alleges that the decedent lacked testamentary capacity. The witnesses to the execution of the propounded instrument signed a self-proving affidavit, which recites that the decedent was under no physical or mental impairment that would have affected his capacity to make a valid will. The affidavit constitutes prima facie evidence of the facts attested to and creates a presumption of testamentary capacity (Matter of Jacobs, 153 A.D.3d 622 [2d Dept 2017]). The deposition testimony and supporting affidavits of the attorney draftsman and the two witnesses, all of whom had known the decedent for a number of years, provide additional evidence that the decedent possessed the requisite testamentary capacity at the time he executed the propounded instrument.
In response to the petitioner's prima facie proof of the decedent's testamentary capacity, the respondent has once again failed to raise a triable issue of fact. The respondent's affidavit in opposition fails to address the issue of the decedent's testamentary capacity at all. There being no issue of fact concerning testamentary capacity, summary judgment is GRANTED to the petitioner dismissing this objection.
Undue Influence
"To be 'undue,' the influence exerted must amount to mental coercion that led the testator to carry out the wishes of another, instead of [his or her] own wishes, because the testator was unable to refuse or too weak to resist" (Maisannes v Ryan, 34 A.D.3d 212, 213 [1st Dept 2006] [internal citation and quotation omitted]). Undue influence is seldom practiced openly, but it is the product of persistent and subtle suggestion imposed upon a maker fostered by the exploitation of a relationship of trust and confidence (Matter of Burke, 82 A.D.2d 260 [2d Dept 1981]). "Without a showing that undue influence was actually exerted upon the decedent, mere speculation that the opportunity and motive to exert such influence existed is insufficient" (Matter of Chiurazzi, 296 A.D.2d 406, 407 [2d Dept 2002]).
Undue influence may be proved by circumstantial evidence, but the evidence must be substantial (Matter of Walther, 6 N.Y.2d 49 [1959]; Matter of Favaloro, 94 A.D.3d 989 [2d Dept 2012]). Among the factors that may be considered are: (1) the testator's physical and mental condition (Matter of Callahan, 155 A.D.2d 454 [2d Dept 1989]); (2) whether the attorney who drafted the will was the testator's attorney (Matter of Elmore, 42 A.D.2d 240 [3d Dept 1973]); (3) whether the propounded instrument deviates from the testator's prior testamentary pattern (Children's Aid Socy. v Loveridge, 70 NY 387 [1877]; Maisannes v Ryan, 34 A.D.3d 212 [1st Dept 2006]); and (4) whether the person who allegedly wielded undue influence was in a position of trust (Matter of Burke, 82 A.D.2d 260 [2d Dept 1981]).
The respondent raises the objection that the petitioner exerted undue influence upon the decedent. The deposition testimony and supporting affidavits of the attorney draftsman and the two witnesses establishes that the petitioner was not present at the execution and took no part whatsoever in the preparation or execution of the propounded instrument at all.
The respondent's affidavit in opposition to the motion for summary judgment fails to offer any evidence of undue influence exerted upon the decedent by the petitioner. In the absence of any substantive basis for the objection of undue influence, summary judgment is GRANTED to the petitioner dismissing this objection.
Petitioner has established her entitlement to summary judgment dismissing the respondent's objections of lack of due execution, lack of testamentary capacity and undue influence. Since the respondent's objections to probate have all been dismissed, the will shall be admitted to probate.
With regard to so much of the petitioner's motion as seeks sanctions and costs, Part 130 of the Rules of the Chief Administrator of the Courts (22 NYCRR Part 130) provides for the award of costs and imposition of financial sanctions for frivolous conduct in civil litigation. Conduct which "is completely without merit in law" or "is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another" is frivolous and subject to the award of costs and/or the imposition of sanctions (22 NYCRR 130-1.1 [c] [1], [2]; Mascia v Maresco, 39 A.D.3d 504 [2d Dept 2007]). The court declines to award costs or sanctions.
Accordingly, the petitioner's motion for summary judgment is GRANTED, to the extent that the respondent's objections are dismissed and the will shall be admitted to probate.
Settle decree on notice.