Surrogate Calvaruso of Monroe County issued a decision in Matter of Feller on January 4, 2010, worth reading for its summary of the burdens of proof and presumptions that objectants to a will must overcome to survive summary judgment.
In Feller, the decedent’s will left her estate to 10 charities and 4 individuals in equal shares. Eight of her 11 distributees (those who would inherit her estate in the absence of a valid will) filed objections to the will based upon due execution, testamentary capacity and undue influence. The Attorney General, on behalf of the charities, filed a motion for summary judgment in support of the validity of the will. The court rejected all claims by the distributees, granted summary judgment and admitted the will to probate.
The claim that the will was never properly executed was based on the fact that the testatrix had only responded in the affirmative to the attorney’s queries regarding the request that witnesses sign the will, and that she had not herself requested that the witnesses sign the will. The court rejected this claim:
Attorneys routinely lead their clients through the will execution formalities in order to ensure that the requirements of EPTL 3-2.1 are satisfied in order to qualify a document as last will and testament entitled to be admitted to probate. Such publication and instruction of a request is not required to be in any “ironclad ceremonial or ritualistic language.”
The objectants also claimed that the testator lacked testamentary capacity at the time she executed her will. The court found that the objectants failed to offer sufficient evidence to raise a triable issue of fact. The court wrote:
Proponent [of the will] bears the burden to prove testamentary capacity at trial. For purposes of a summary judgement motion, once a proponent makes a prima facie case for probate, the burden switches to the objectant to show a triable issue of fact….
There is a presumption of testamentary capacity when a will is drafted and the execution is supervised by an attorney, particularly when the evidence indicates that the testatrix executed the will only after careful review and discussion of its contents. Here, objectants have failed to raise competent evidence creating a genuine issue of fact to overcome the presumption.
The court also rejected the claim of undue influence because objectants failed to present any evidence of undue influence:
At a minimum, the objectant must make a showing of actual acts of undue influence, including time and place of the occurrence….
Though undue influence is typically proved by circumstantial evidence rather than direct evidence, this does not preclude summary judgement where a material issue of fact has not been shown. In fact, it is proper for the Surrogate to issue summary judgement where objectant has not made out a prima facie case of undue influence. Where a reasonable conclusion other than undue influence is supported by the facts, it is improper to conclude that undue influence existed:
[Undue influence] may be proved by circumstantial evidence but the circumstances must lead to it not only by a fair inference but as a necessary conclusion. To avoid the will of a competent testator on the ground of undue influence, the contestant must show facts entirely inconsistent with the hypothesis of the execution of the will by any means other than undue influence. In re Will of Henderson, 253 A.D. 140, 145 (1937).
The full text of the decision can be read here.