Court Considers the Trifecta of Standard Challenges

Objections “101″ to the probate of a will would introduce the three most common grounds: lack of due execution (the will was not properly signed); lack of testamentary capacity (the decedent did not know what s/he was doing); and undue influence (a trust or confidence was exploited), But, as a recent case illustrates, objections are easier said than done.

In a contested probate proceeding, Joy M. Hood moved for an order: granting summary judgment dismissing the objections of Joseph W. Peckelis and admitting the will of Albert J. Peckelis to probate. Joseph opposed the motion.

Albert 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 Albert’s last will and testament, dated April 10, 2016, was offered for probate by Rosemarie LoPresti, the nominated executor, as well as the sole beneficiary of Albert’s estate. Rosemarie LoPresti died on June 16, 2018. Hood was appointed the executor of Rosemarie’s estate by decree dated August 24, 2018. Hood filed a notice of appearance in the proceeding on March 15, 2019.

Joseph filed objections to probate alleging: lack of due execution, testamentary capacity, and undue influence. Hood sought summary judgment dismissing Joseph’s objections and granting probate.

Hood had the burden of proof on the issue of due execution of the will by Albert. EPTL 3-2.1 provides that:

(a) …every will must be in writing, and executed and attested in the following manner:

• It shall be signed at the end thereof by the testator…
• 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…
• 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.
• 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. The presumption, however, is rebuttable. The presence of an attestation clause and a self-proving affidavit also gives rise to a presumption that the statutory requirements were satisfied.

The execution of the propounded instrument, which included an attestation clause and a self-proving affidavit, was supervised by the attorney who drafted the will, as well as another attorney, thereby creating a presumption of regularity. In support of her motion for summary judgment, Hood offered 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 bolstered the presumption of due execution and demonstrated full compliance with the necessary statutory requirements for the proper execution of a will.

Hood successfully met her burden of proving due execution of the will. The burden of proof then shifted to Joseph to produce evidentiary proof in admissible form to raise a material issue of fact. Joseph failed to do so. His affidavit in opposition failed to address the issue of due execution at all. There being no issue of fact concerning due execution, summary judgment was granted to Hood dismissing Joseph’s objection.

Hood had the burden of proving testamentary capacity. That 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.” Mere proof that Joseph suffered from physical infirmity was not necessarily inconsistent with testamentary capacity and did not preclude a finding that he had such capacity, as the relevant inquiry was whether Albert was lucid and rational at the time the will was made and executed. But, until the contrary was established, Albert was presumed to be sane and had sufficient mental capacity to make a valid will.

Joseph, in his objections, alleged that Albert lacked testamentary capacity. The witnesses to the execution of the propounded instrument signed a self-proving affidavit, which recited that Albert was under no physical or mental impairment that would have affected his capacity to make a valid will. The affidavit constituted prima facie evidence of the facts attested to and created a presumption of testamentary capacity. 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, provided additional evidence that Albert possessed the requisite testamentary capacity at the time he executed the will.

In response to Hood’s prima facie proof of Albert’s testamentary capacity, Joseph once again failed to raise a triable issue of fact. Joseph’s affidavit in opposition failed to address the issue of Albert’s testamentary capacity at all. There was no issue of fact concerning Albert’s capacity. So summary judgment was granted dismissing that objection.

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 wishes because the testator was unable to refuse or too weak to resist. Undue influence is seldom practiced openly, but it is the product of persistent and subtle suggestions imposed upon a maker fostered by the exploitation of a relationship of trust and confidence. Without a showing that undue influence was actually exerted upon the decedent, mere speculation that the opportunity and motive to exert such influence existed was insufficient.

Undue influence may be proved by circumstantial evidence, but the evidence must be substantial. Among the factors that may be considered are:

• the testator’s physical and mental condition;
• whether the attorney who drafted the will was the testator’s attorney;
• whether the propounded instrument deviates from the testator’s prior testamentary pattern; and
• whether the person who allegedly wielded undue influence was in a position of trust.

Joseph raised the objection that Hood exerted undue influence on Albert. The deposition testimony and supporting affidavits of the attorney draftsman and the two witnesses established that Hood was not present at the execution and took no part whatsoever in the preparation or execution of the will.

Joseph’s affidavit in opposition to the motion for summary judgment failed to offer any evidence of undue influence exerted upon Albert by Hood. In the absence of any substantive basis for the objection of undue influence, summary judgment was granted to Hood dismissing that objection.

Hood established her entitlement to summary judgment dismissing Joseph’s objections of lack of due execution, lack of testamentary capacity, and undue influence. And the will was admitted to probate.