John C. Rowley, J.
Unpublished Opinion
John C. Rowley, J.
By Notice of Cross Motion filed on or about November 4, 2021, Shane Spencer ("Spencer"), proponent of decedent's May 8, 2020 Last Will and Testament, by his attorney, Bousquet Holstein PLLC, Ryan S. Suser, Esq., of counsel, seeks an order granting summary judgment, denying the Objections filed by Rhonda Weigand ("Weigand"), a distributee of the decedent in this matter, with prejudice, granting the Petition for Probation, electronically filed on September 11, 2020, in its entirety, and admitting decedent's will to probate.
In opposition to the motion, counsel for Weigand, Deborah Wolf Miller, Esq., filed an Affirmation, dated November 21, 2021, supported by affidavits of Mikel Crispell and Melissa Mercer, a business associate and former employee of the decedent, respectively, and various other exhibits relating to decedent's property and Spencer's personal history. Notably, no affidavit of Weigand or any other members of decedent's family were submitted in opposition to the motion.
Procedural History
Decedent died testate on June 17, 2020. On September 11, 2020, Spencer electronically filed a petition for probate of the Will and an application for preliminary letters testamentary, which were issued to Spencer on November 19, 2020. Said preliminary letters testamentary expired on May 19, 2021. Spencer filed an application requesting that said preliminary letters be extended on May 20, 2021. On June 2, 2021, the Court extended the preliminary letters testamentary. Thereafter, on July 9, 2021, the Court revoked and replaced the June 2, 2021 preliminary letters and issued amended preliminary letters testamentary.
On July 8, 2021, Deborah Wolf Miller, Esq., filed a Notice of Limited Appearance stating that she appears on behalf of Weigand for the limited purpose of investigation into the circumstances surrounding the signing of a purported Last Will and Testament of Richard Dobson, dated May 8, 2020, conducting SCPA § 1404 depositions of the witnesses to said purported Will and the person who prepared the Will, the preparation and filing of an Objection to the petition of Shane Spencer for the probate of said purported Last Will and Testament, and negotiation of a resolution of this matter.
Objections to probate were electronically filed by Weigand, by and through Attorney Wolf Miller, on or about September 8, 2021. SCPA § 1404 examinations of Christine Woodcock Dettor, Esq., the attorney who drafted and remotely supervised the execution of the Last Will and Testament at issue, and Garry Huddle and Brook Wylde (f/k/a Brook Smith), witnesses of the signing of said Last Will and Testament, were held on October 15, 2021. Transcripts of said SCPA § 1404 examinations are attached to the Estate's motion papers.
At the outset, the Court notes that, after having reviewed the record and submissions, the remote supervision of the execution of the Will and the remote notarization of the Affidavit of Attesting Witnesses conducted by Attorney Dettor complied with Executive Orders 202.7 and 202.97, issued by Governor Cuomo on March 19, 2020 and April 15, 2021, respectively, in response to the Covid-19 pandemic emergency.
Weigand's attorney states in her Affirmation in Opposition that the deposition transcripts were not yet certified as accurate as of the date of their submission, on November 21, 2021. The Court has not since been notified by counsel that the transcripts were not subsequently certified as accurate.
On or about November 4, 2021, the instant motion was filed. On or about November 21, 2021, Attorney Wolf Miller filed an Affirmation in Opposition to the motion.
Objections
Weigand raises eighteen (18) objections:
1. Without receiving authority to dispose of estate property or make distributions, Spencer has:
a. taken estate property out of the decedent's home and outbuildings and removed substantial amounts of property form decedent's real property, without accounting for said property;
b. given away decedent's estate property despite having no authority to make distributions;
c. sold estate property below fair market value;
d. abandoned decedent's estate property without proper authority;
e. taken decedent's firearms, including family heirlooms, under false pretenses, without following NY's laws regarding the handling of a decedent's firearms; and
f. otherwise improperly distributed and/or disposed of estate property without authority from this Court, in direct violation of the restrictions placed upon Preliminary Letters, in violation of NY Penal Law, NY Estates, Powers and Trusts Law, and NY Surrogate's Court Procedure Act.
2. Spencer has knowingly failed to disclose the full extent of decedent's estate to this Court, by providing false valuations and omitting other assets in the Petition for Probate, Petition for Preliminary Letters, Amended Petition for Preliminary Letters, and in the Petition for Extension of Preliminary Letters.
3. Spencer's knowing failure to disclose the full extent of decedent's estate to this Court, as well as to decedent's children and creditors, constitutes fraud, and has had a detrimental effect upon the actions of those with legal rights to recovery from decedent's estate but who have relied upon the information misrepresented in the Petition and three subsequent applications for Preliminary Letters and their extension filed by Spencer.
4. Spencer has been investigated by the NYS Attorney General for falsifying time records while previously serving as a Tompkins County Sheriff's Deputy.
5.Spencer is a person who does not possess the qualifications required for the faithful service of a fiduciary, by reason of dishonesty, improvidence, criminal history, and/or erratic and irrational behavior, and/or personal hostility toward the decedent's family members, and is otherwise unfit for faithful service as a fiduciary, pursuant to SCPA 707(1), as well as other statutory and NY common law.
6. Spencer has failed to deposit all funds received from the sale of all estate assets into an estate banking account.
7. Spencer has used decedent's estate funds to pay his own expenses and/or legal fees incurred solely for his own personal benefit.
8. Spencer's disposal and distribution of estate property without Court authority has already displayed a wanton disregard for the rule of law and the concept of waste, to the detriment of the decedent's distributees and creditors.
9. This Court has discretion, pursuant to SCPA 707(2), to determine that Spencer is ineligible and/or unable to faithfully serve as Executor.
10. Weigand objects to the representation of Spencer by the law firm of Bousquet Holstein, PLLC, due to their actual conflict of interest. Weigand had a lengthy, confidential conversation with a member of the firm on August 13, 2020, before she was informed that the firm could not represent her in this estate due to a conflict of interest because they already represented Spencer.
11. The document proffered as a will by Petition dated May 8, 202 was the produce of undue influence on the part of Spencer to the detriment of decedent's children, grandchildren, great-granddaughter, and creditors.
11. Decedent was released from the hospital on May 7, 2020 to receive hospice care at home and was in such poor condition that he was unable to even make his own medical decisions.
12. Spencer and/or his agents prevent Weigand from visiting her father at his home upon his release form the hospital, even when Weigand drove decedent's granddaughter and great-granddaughter to his home to visit.
13. Spencer hired an attorney for decedent and instructed the attorney to draft a Will for decedent, and then due to the Covid-19 pandemic, said attorney was unable to undertake the usual precautions to ensure that the Will was based upon the true and uninfluenced wishes of the decedent prior to its signing.
14. The Petition for Probate filed by Spencer fails to set forth all information required by NY Uniform Rules of Surrogate's Court and the SCPA, and fails to include all necessary supporting documentation.
15. The Petition for Probate filed by Spencer is not properly signed and notarized, and must be dismissed as a result of such substantial defect. The notarization of Spencer's signature is dated two days before the date of his actual signature.
15.All three of Spencer's sworn Petitions seeking Preliminary Letters fail:
a. to set forth an essential element of the petition, i.e. that no Will contest is expected;
b. to provide accurate information concerning the valuation of the estate assets, even after having opportunity to obtain such information; and
c. to provide all information required by NY Uniform Rules of Surrogate's Court and the SCPA.
16. Weigand has timely requested an extension of time by which to file this Objection, but Spencer has failed to provide the Court with the requested information in a timely manner so as to permit the Court to grant said extension for filing this Objection, necessitating the filing of this Objection to preserve the rights of the objecting party.
Disqualification of Bousquet Holstein, PLLC
Although Weigand did not file a formal application to disqualify Bousquet Holstein, PLLC, the Court will address her objection to their representation of Spencer at the outset to the extent that the presence of any conflict may impact consideration of the remaining matters.
Generally, "[a] party's entitlement to be represented in ongoing litigation by counsel of his [or her] own choosing is a valued right which should not be abridged absent a clear showing that disqualification is warranted and the movant bears the burden on the motion" (Olmoz v. Town of Fishkill, 258 A.D.2d 447, 447 [2d Dept 1999][internal citations omitted]). Because there are "significant competing interests inherent in attorney disqualification cases, the Court of Appeals has advised against 'mechanical application of blanket rules,' in favor of a 'careful appraisal of the interests involved'" (Tekni-Plex, Inc. v. Meyner & Landis, 89 NY2D 123, 131 [1996]).
Here, the sole basis for Weigand's objection to the representation of Spencer by the law firm of Bousquet Holstein, PLLC, is an assertion by Weigand's counsel in her Affirmation in Opposition, that, upon information and belief, Weigand allegedly had a twenty-minute conversation with an unnamed member of the firm, by telephone, on August 13, 2020, before she was informed in a subsequent conversation with unnamed person, the date of which conversation is also unspecified, that the firm could not represent her in this matter due to a conflict of interest because they already represented Spencer. Without an affidavit of a person with personal knowledge of the facts asserted, namely Weigand, setting forth the particular facts and circumstances of Weigand's alleged contact with the firm, the Court is unable to conduct a careful appraisal of the interests involved. Therefore, Weigand has failed to establish that disqualification is warranted.
Summary Judgment
The Estate contends that Weigand has failed to raise any genuine issues of fact sufficient to warrant a hearing on the Objections. Pursuant to CPLR R 3212 (b), a motion for summary judgment shall be granted if, based on all the papers and proof submitted, there exists no triable issue of fact. "While rare, summary judgment in a contested probate proceeding is appropriate where a petitioner establishes a prima facie case for probate and the objectant does not raise any factual issues regarding testamentary capacity, execution of the will, undue influence or fraud" (Matter of Vosilla, 121 A.D.3d 1489, 1490 [3d Dept 2014]).
A court may grant probate only when it is satisfied that the will before it is valid. Where it appears "that the will was duly executed and that the testator at the time of executing it was in all respects competent to make a will and not under restraint it must be admitted to probate" (SCPA § 1408 [2] [emphasis added]). The proponent of the will bears the burden of proving due execution of the will, testamentary capacity, and the genuineness of the testator's signature (In re Stegner, 253 A.D. 282, 284 [2d Dept 1938]). The objectant has the burden of proof on the issues of undue influence and fraud (see e.g., In re Will of Walther, 6 N.Y.2d 49, 54 [1959]; Estate of Malone, 46 A.D.3d 975, 977 [3d Dept 2007]; Matter of Clapper, 279 A.D.2d 730, 732 [3d Dept 2001]).
Due Execution and Testamentary Capacity
"When an attorney drafts a will and supervises its execution, a presumption of regularity is raised that the will was properly executed" (Estate of Leach, 3 A.D.3d 763, 764 [3d Dept 2004]). "[W]ith respect to testamentary capacity, the proponent of a will has the burden of establishing (1) that the decedent understood the nature and consequence of executing a will, (2) that the decedent knew the nature and extent of the property that he or she was disposing of, and (3) that the decedent knew the natural objects of his or her bounty, and his or her relations with them" (Estate of Leach, 3 A.D.3d at 765 [citing to Estate of Fish, 134 A.D.2d 44, 46 [3d Dept 1987]). It is well settled that the attesting affidavit of witnesses to the execution of a will creates "a presumption of testamentary capacity and prima facie evidence of the facts attested to" (Estate of Walker, 80 A.D.3d 865, 866 [3d Dept 2011]). "Evidence that decedent suffered from a number of physical ailments is insufficient to raise a material issue of fact with respect to testamentary capacity, absent proof that decedent's medical conditions affected his competence to make a will" (Estate of O'Brien, 182 A.D.2d 1135, 1135 [4th Dept 1992]).
Spencer produced an original copy of the Will with an affidavit of the two witnesses to its execution, namely Garry Huddle and Brook Wylde (f/k/a Brook Smith). The two subscribing witnesses attested to decedent's sound mind, memory, and understanding, creating a presumption of testamentary capacity and prima facie evidence of the facts attested to.
Spencer also submitted testimony of the two subscribing witnesses and Christine Woodcock Dettor, Esq., the attorney who drafted the Will and remotely supervised its execution, that was elicited during a SCPA § 1404 examination. When asked how she came to prepare the Will for decedent, Attorney Dettor testified that she was originally contacted, by email, by Edna Brown, who works with Hospicare and provided home care services for decedent (see Estate Exhibit "I," Page 2 [Page 7 of the transcript, lines 14-19]). Attorney Dettor confirmed that she spoke directly with decedent, who was accompanied by Spencer and Weigand's daughter, Astreeian, at the time, about what was to be included in the Will before it was signed (see Estate Exhibit "I," Page 2 [Page 8 of the transcript, lines 3-20]) and again when she reviewed the Will with the decedent in front of the two attesting witnesses before decedent signed the Will (see Estate Exhibit "I," Page 3 [Page 11 of the transcript, lines 5-11]). Attorney Dettor also testified that prior to the execution of the Will, she spoke with the decedent in front of the decedent's granddaughter, Weigand's daughter Astreeian Weigand, and Spencer and confirmed decedent's intention to disinherit his children (see Estate Exhibit "I," Page 8 [Page 32 of the transcript, lines 22-25]; Page 9 [Page 33 of the transcript, lines 1-15]). When asked if the contents of the Will that was going to be signed was discussed with Astreeian Weigand, Attorney Dettor stated, "Yes, it was. And in fact, she said, and I absolutely quote, 'Whatever grandpa wants'" (Estate Exhibit "I," Page 5 [Page 17 of the transcript, lines 21-25]). Additionally, Attorney Dettor testified that, in the presence of the decedent and the two witnesses, she explained what she had been asked to prepare, what the decedent had indicated were his wishes, and she reviewed the contents of the Will, including the fact that the decedent had asked Spencer to be his representative and that he wanted Spencer to be the beneficiary (see Estate Exhibit "I," Page 9 [Page 14 of the transcript, lines 14-21]). Attorney Dettor also testified that after the document was reviewed and it was time to execute it, she asked decedent if the document was his last will and testament, whether it disposes of his property in accordance with his wishes and that he wishes that Spencer be the executor and beneficiary, and whether he would like Brook and Garry to witness his will, and that the decedent answered affirmatively to each question (see Estate Exhibit "I," Page 9 [Page 34 of the transcript, lines 22-25)]; Page 9 [Page 35 of the transcript, lines 1-15]). Thereafter, Attorney Dettor instructed the witnesses to watch the decedent affix his signature to the signature line and instructed the witnesses to affix their signature on the page beneath the decedent's signature as witnesses to the will (see Estate Exhibit "I," Page 9 [Page 35 of the transcript, lines 15-19]), and she verified the witnesses' identities by having them show her and text her photographs of their drivers' licenses (see Estate Exhibit "I," Page 9 [Page 36 of the transcript, lines 1-5]). She also confirmed that she specifically asked Spencer to leave the room before decedent executed the Will in the presence of the two witnesses, that she confirmed that Spencer left the room by asking the two witnesses, and that she herself observed that he was not in the room at the time of execution (see Estate Exhibit "I," Page 3 [Page 11 of the transcript, lines 18-25]).
Based upon the foregoing, the Court concludes that Spencer has met his burden of establishing due execution of the will and testamentary capacity. The totality of the evidence shifts the burden to Weigand to produce evidence creating a genuine triable issue of fact.
Weigand claims that decedent lacked testamentary capacity when he executed the propounded Will. In support of her claim, Attorney Wolf Miller argues in her Affirmation in Opposition that it is questionable whether the Will offered for probate reflects the actual testamentary wishes of the decedent for the following reasons:
(a) the call for decedent's Will to be drafted, the drafting of the Will, and the execution of the Will were all completed within the span of one day, May 8, 2020, that day being the decedent's first day home from the hospital;
(b) the attorney who drafted the Last Will and Testament and supervised its execution, Christine Woodcock Dettor, Esq., knew decedent had been discharged from the hospital, but did not have any information specifically about his medical condition or when he had been discharged from a hospital, that she never met with decedent in person, and she did not draft and never saw a copy of decedent's health care proxy prior to drafting his Will;
(c) decedent was so weak when his Will was signed on May 8, 2020 that he couldn't even sit up in bed and needed to be propped up on his side with pillows;
(d) Attorney Woodcock Dettor did not know who paid for decedent's Will and did not know if decedent had a prior Will and he did not ask her to revoke a prior Will;
(e) Attorney Woodcock Dettor never spoke to decedent alone to determine whether his Will reflected his own uninfluenced wishes;
(f) Attorney Woodcock Dettor never discussed decedent's actual family members with decedent and she was aware of only one adult grandchild;
(g) the Will did not include a recitation of decedent's distributees or other family members within the Will;
(h) the Will does not contain an in terrorem clause;
(I) it is uncertain whether decedent was fully aware of the existence and extent of his own next of kin at the time that he signed the document on May 8, 2020;
(j) Melissa Mercer, who worked for decedent and was familiar with his property and with him personally, found decedent's mental condition to be suspect and deteriorating even years before his last illness; and
(k) decedent's granddaughter, Astreeian, was decedent's health care proxy because he was not competent to make his own health care decisions in the hospital the day before this Will was signed, yet the Will offered does not mention her or any of his other children, grandchildren, or great-grandchildren.
Notably, no documentation, such as medical records or affidavits of individuals with actual personal knowledge of the facts alleged, supporting these claims have been filed. Weigand offers no proof in support of her claim that after being released from the hospital decedent was in such poor condition that he was unable to even make his own medical decisions. Assertions by Ms. Mercer, who states in her Affidavit (Exhibit 5) that she worked for decedent for 2 ½ years from 2004 through 2006 and saw him approximately once per week in the community thereafter, that decedent "was always having trouble finding his keys" and that he was "very paranoid" and "accuse[d] people of stealing things which he had given to them as a gift" are insufficient to raise a triable issue of fact as to the decedent's competence at the time of executing the will. "[E]vidence of memory loss and 'declining cognitive abilities does not, without more, create a question of fact on the issue of testamentary capacity, as the appropriate inquiry is whether the decedent was lucid and rational at the time the will was signed'" (Matter of Giaquinto, 164 A.D.3d 1527, 1529 [3d Dept 2018] [internal citations omitted]).
Accordingly, the Court concludes that Weigand has offered no competent, admissible evidence which would warrant a trial on the issues of due execution and testamentary capacity and summary judgment on those issues is warranted.
Undue Influence
In her objections, Weigand alleges that the document offered as decedent's Will "was the product of undue influence on the part of [Spencer] to the detriment of decedent's children, grandchildren, great-granddaughter, and creditors." However, Weigand has not submitted any documentation or affidavits of individuals with actual personal knowledge of any facts that would support that conclusion.
As previously stated, the objectant bears the burden of establishing the existence of undue influence. Proof of undue influence requires evidence not only of motive and opportunity, but of "acts allegedly constituting the influence, as well as when and where such acts occurred" (Estate of Walker, 80 A.D.3d at 867). In Estate of Malone, 46 A.D.3d 975, 977 (3d Dept 2007), the Third Department set out the rigorous standard, stating:
To establish undue influence, the burden is on the objectant to show that the influencing party's actions are so pervasive that the will is actually that of the influencer, not that of the decedent (citations omitted). The influence must rise to a level where it amounts 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 [or her] free will and desire, but which he [or she] was unable to refuse or too weak to resist (citations omitted). Facts must be sufficiently set forth to show that the influencing party had a motive to influence, the opportunity to influence, and that such influence was actually exercised (citation omitted). 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' (citations omitted). Simply '[c]onclusory allegations and speculation' without specificity as to times, dates, and places are insufficient to raise an issue of fact as to undue influence (citations omitted). Furthermore, if the circumstantial evidence offered would support conflicting inferences, a conclusion of undue influence cannot be made (citations omitted).
Here, Weigand has offered no competent, admissible evidence of specific instances, times or places of any acts constituting undue influence. The events described by counsel for Weigand as constituting undue influence simply do not rise to the level of intrusion necessary to demonstrate that undue influence was actually exercised and that the Will was not really of decedent's mind. Therefore, the Court concludes that Weigand has failed to meet her burden of proof on the issue of undue influence and summary judgment on that issue is warranted.
Lastly, the Court notes that in arguing that summary judgment is premature because discovery is incomplete, counsel for Weigand asserts that "[t]here is still a significant amount of relevant information which has yet to be disclosed to this Court to determine whether the May 8, 2020 'Will' offered for probate reflects the actual testamentary wishes of a very compromised decedent" and that the delays in serving discovery demands and filing requests for judicial subpoenas (none have been filed, to date) are due to Weigand's inability to pay by the hour for the work needed and her counsel's health limitations. Significantly, Weigand fails to identify any sources and/or offer any explanation as to the nature of such "significant... relevant information" that she has failed to seek to obtain thus far. Mere speculation that further discovery might uncover some evidence to help Weigand prove her case is insufficient to invoke the provisions of CPLR R 3212 (f) (see Estate of Leach, 3 A.D.3d at 765-66).
As for Weigand's argument that the notarization of Spencer's signature is dated two days before the date of his actual signature, that refers to the fact that Spencer's signature on the Petition is dated August 19, 2020 and his signature on the Verification is dated August 17, 2020. Weigand does not cite any authority that supports the proposition that the Petition should be denied on that basis and it is well established that such trivial defects shall be ignored if a substantial right of a party is not prejudiced (see CPLR § 3026). Weigand has not alleged any actual prejudice resulting from such a defect.
Weigand's remaining objections, including those pertaining to Spencer's eligibility to serve as Executor, have no bearing on whether or not the Will should be admitted to probate.
Accordingly, it is hereby
ORDERED, that the Estate's motion for summary judgment is GRANTED in all respects; and it is further
ORDERED, that Weigand's Objections, dated September 8, 2021, are DISMISSED; and it is further
ORDERED, that the Last Will and Testament of Richard L. Dobson, dated May 8, 2020, is admitted to probate.
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