In re Estate of Longley

• Decision Date: 13 May 2014
• Docket Number: No. 2011–3799.,2011–3799.
• Parties: In the Matter of the ESTATE OF Dorothy LONGLEY, a/k/a Dorothy H. Longley, Deceased.
• Court: New York Surrogate Court

26 N.Y.S.3d 725 (Table)

In the Matter of the ESTATE OF Dorothy LONGLEY, a/k/a Dorothy H. Longley, Deceased.

No. 2011–3799.

Surrogate's Court, Erie County, New York.

May 13, 2014.

Kathryn A. Jackson, Esq., Attorney for the Preliminary Executor Mary Ann Lathan.

Polowitz & Schwach, LLP, Co–Counsel for the Preliminary Executor Mary Ann Lathan, Lawrence R. Schwach, Esq., of Counsel.

Michael Jonascu, Esq., Attorney for Ruth Ann Salvador.

BARBARA HOWE, J.

Decedent, Dorothy Longley, died at age 90 on August 22, 2011. Her husband had predeceased her and they had had no children, but she was survived by her sister, Ruth Ann Salvador [hereafter, Ruth Ann], and her brother, Earl Horn.

Decedent's niece, Mary Ann Lathan [hereafter, Mary Ann¹ ], has offered a document for probate entitled "Last Will and Testament of DOROTHY LONGLEY", dated December 11, 2010.² In essence, that Will leaves numerous specific bequests to charitable organizations, cash bequests to various legatees, fifty percent of the residuary estate to Mary Ann and fifty percent of the residuary estate to Mary Ann's four children; and it nominates Mary Ann as the fiduciary of the estate.

Objections to probate have been filed by Ruth Ann. She alleges:

"1.That the said DOROTHY LONGLEY was not at the time of the making of said alleged Will of sound mind and memory and capable of making a Will, and she thus lacked requisite testamentary capacity at such time.

2. That the said paper writing was not freely or voluntarily made or executed by the said DOROTHY LONGLEY, as her last will and testament, but that the said paper was obtained and procured by fraud and undue influence of MARY ANN LATHAN, the primary legatee and devisee named therein, and by other persons acting in concert or privity with the said MARY ANN LATHAN, including but not necessarily limited to the son-in-law of said MARY ANN LATHAN, and/or by others whose names are currently unknown to the objectant herein. The signature of the decedent was thereby obtained and the subscription and publication thereof was procured by such undue influence as to constitute a moral coercion brought to bear upon the decedent, thus restraining independent action and destroying free agency or which otherwise constrained the decedent to do that which was against her free will and desire.

3. That the said instrument offered for probate was not duly executed as required by law in that the said DOROTHY LONGLEY did not request one or both of the alleged attesting witnesses to act in such capacity as a witness or witnesses thereto.

4. That the execution of the alleged will of DOROTHY LONGLEY was obtained by duress, in that she was essentially deprived of her free will in the execution of the will and the steps leading up to the execution of the will" (emphasis added).

Pending now before me is a motion by the estate for summary judgment seeking to dismiss the objections and admit the December 11, 2010 Will to probate. Ruth Ann opposes that relief, and each side has submitted a memorandum of law on the issues.

(I)

Before admitting a Will to probate, a Court must inquire particularly into all the facts and must be satisfied with the genuineness of the Will and the validity of its execution (see SCPA 1408[1] ). The proponent of a Will must establish that it was duly executed pursuant to EPTL 3–2.1. A testator must sign the Will at its end (EPTL 3–2.1[a][1] ), and must either sign in the presence of at least two attesting witnesses, or acknowledge his signature to each attesting witness separately (EPTL 3–2.1[a][2] and [4 ] ). And, generally, the testator must declare at some time during the execution ceremony that the instrument signed is his Will (EPTL 3–2.1[a][3] ).

The legal standards for deciding a motion such as that pending before me are clear. Procedurally:

"Summary judgment may be granted only where it is clear that no triable issue of material fact exists (see, e.g. Alvarez v. Prospect Hosp., 68 N.Y.2d 320 [1986] ; Phillips v. Joseph Kantor & Co., 31 N.Y.2d 307 [1972]. The traditional reluctance to grant summary judgment in probate proceedings has long since passed, and it is now recognized that [a]lthough summary must be exercised cautiously, it is proper in a contested probate proceeding where the proponent submits a prima facie case for probate and the objectant fails to raise any genuine factual issues' (Matter of Minervini, 297 A.D.2d 423, 424 [2002] ; Matter of Coniglio, 242 A.D.2d 901 [1997] ). Indeed, it is also clear that summary judgment may be granted even when such proceedings involve issues of a fact-sensitive nature, such as fraud and undue influence (see, e.g., Matter of Neuman, 14 A.D.3d 567 [2005] ; Matter of Goldberg, 180 A.D.2d 528 [1992] ).

To defeat a motion for summary judgment, the opponent must assemble and lay bare affirmative proof to demonstrate the existence of a genuine triable issue of fact (Stainless, Inc. v. Employers Fire Ins. Co., 69 A.D.2d 27 [1979], affd 49 N.Y.2d 924 [1980] ). Allegations must be specific and detailed, substantiated by evidence in the record; mere conclusory assertions will not suffice (Matter of Newman, 14AD 3d 567 [2005] ). Moreover, the court is required to search the record when it is engaged in the process of issue finding (Fullan v. 142 E. 27th St. Assocs., 1 N.Y.3d 211 [2004] ; Insurance A.G. v. Moor–Jankowski, 77 N.Y.2d 235 [1991] )" (Matter of Zirinsky, 10 Misc.3d 1052A [2005], emphasis added, affd 43 AD3d 946 [2007] ; see also, Matter of Colverd, 52 A.D.3d 971 [2008], Matter of Ryan, 34 A.D.3d 212 [2006], and Matter of Kubecka, 15 Misc.3d 1129A [2007] ).

A Court may grant probate when it is satisfied that the Will 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 and testamentary capacity (see, e.g., Matter of Kumstar, 66 N.Y.2d 691, 692 [1985] and Matter of Moser, 27 Misc.2d 415 [1961] ; see, also, PJI 7:28 ), whereas the burden of proof on the issue of undue influence or fraud rests upon the party who asserts such claim (see, e.g., Matter of Walther, 6 N.Y.2d 49, 54 [1959] ; see also Matter of Mele, 113 A.D.3d 858, 860 [2014] and Matter of Paigo, 53 A.D.3d 836, 839 [2008] ).

The issue at this juncture is whether the estate has established prima facie its entitlement to summary judgment admitting the Will to probate, and, if so, whether Ruth Ann has raised any material issues of fact which would require a trial (Matter of Pollock, 64 N.Y.2d 1156 [1985] ).

(II)

Decedent was born in 1920, and was trained as a school teacher. She taught the 4th, 6th and 7th school grades until she retired from teaching in 1984.

In 1944, she married her husband, Russ, who was also a teacher. He died on May 31, 2003, and his Will left his entire estate to decedent.³

Decedent's sister, Ruth Ann, testified at her deposition that she and decedent had largely been estranged since the death of their mother in 1994. According to Ruth Ann:

"My mother died. My mother had a will. A very small will. In fact, when she went to this lawyer, she really didn't know him. She was just on the street. My mother had two things that were very important to her. One that my mother's diamond engagement ring would go to my brother and that Lori and Mary Ann would each get a thousand dollars apiece.

The will disappeared. Dorothy had taken it. So my brother never got the ring and this is where trouble started right there."

After that, Ruth Ann and decedent would speak at a funeral or a wedding, and later sometimes would speak on the phone, but the relationship was not close.

Decedent's niece, Lori Hartig [hereafter, Lori], Ruth Ann's daughter, was asked at her deposition to describe decedent:

"Q. I have to ask you because it's quite telling when you said she was Aunt Dorothy. Tell us about her personality.

A. Aunt Dorothy's nickname was the duchess. She always had a very almost royal bearing. She expected things the way they were to be and that's how she expected them and she expected them to always be that way.

Q. Would you describe her as friendly?

A. Oh, yes.

Q. Friendly toward all people, not just her immediate family and friends?

A. No. She was always very outgoing, friendly.

Q. She liked her job as a teacher, didn't she?

A. She did, yes.

Q. Did she talk about her students, former students?

A. Every once in a while. I knew that Tom Weaver, Kathy Weaver's husband, had been one of her prior students.

Q. Would you described her as a trusting individual?

A. In some things. Not in all.

Q. Give me an example.

A. She did not like people in her business. She was not thrilled with-she didn't believe anybody needed to know her business .

Q. Very private about her personal affairs, her financial affairs and things of that nature.

A. Yes, sir.

Q. Her legal affairs?

A. Yes, sir.

Q. Was she a person that you would describe as someone who is open to suggestion?

A. Before February, I don't feel she was any more open to suggestion than anybody else would be. You would tell her your opinion. If she saw it and liked it, she might change her mind. She might not. There were things she was very adamant on; religion, things like that. You couldn't change her mind on something like that.

Q. So morals or values, ingrained values, were something that she would not be very flexible on.

A. Correct" (emphasis added).

On February 2, 2010, decedent met with attorney Kathryn Jackson. Jackson drafted a Will, health care proxy, and power of attorney for decedent to review. This preliminary draft of decedent's Will left most of decedent's personal property to Lori, and it split the residuary estate equally among Lori, Mary Ann, and Richard Longley (her predeceased husband's nephew). Richard Longley and Thomas Alcamo were named fiduciaries of the estate.

Also in February, 2010, decedent asked her niece, Lori, who...