In re Porpora
| Decision Date | 13 February 2020 |
| Docket Number | 2018-751 |
| Citation | 125 N.Y.S.3d 530 (Table),66 Misc.3d 1228 (A) |
| Parties | In the MATTER OF the PROBATE PROCEEDING, WILL OF Santine PORPORA, Deceased. |
| Court | New York Surrogate Court |
John B. Swift, III, Esq., Attorney for Petitioner, 6 Corral Lane, Goshen, NY 10924
William A. Friedman, Esq,. Gaeta Law Firm, LLC, Attorney for Objectants, 400 Columbus Ave., Suite 180E, Valhalla, NY 10595
The following papers were read and considered on Petitioner's motion pursuant to CPLR § 3212(b) for an Order granting summary judgment admitting the Last Will and Testament of Santine Porpora to probate and dismissing the objections to probate filed herein and awarding costs and attorney's fees to the Petitioner:
1. Petitioner's Notice of Motion for Summary Judgment dated October 23, 2019, Swift Affirmation in Support dated October 23, 2019, Caplicki Affidavit sworn to October 21, 2019, John Porpora Affidavit sworn to October 23, 2019 together with Exhibits A through V;
2. Jan Porpora Affidavit in Opposition sworn to November 12, 2019 together with Exhibits A through K; Nicole Wagner Affidavit in Opposition sworn to November 12, 2019 together with Exhibits A and B; Affidavit of Jenny Eisenhauer in Opposition sworn to November 12, 2019 together with Exhibits A and B; Affidavit of Joseph DeBartolo in Opposition sworn to November 13, 2019 together with Exhibits A through G; Memorandum of Law in Opposition to Petitioner's Motion for Summary Judgment dated November 13, 2019;
3. Swift Reply Affirmation dated November 19, 2019; Caplicki Reply Affidavit sworn to on November 18, 2019; John Porpora Reply Affidavit sworn to on November 18, 2019 together with Exhibits A through V.
Decedent Santine Porpora died on August 16, 2018 leaving a document purported to be a last will and testament dated March 14, 2011 (the "March 2011 Will"). The March 2011 Will makes five specific bequests of $5,000.00 each to five of Decedent's grandchildren. The March 2011 Will bequeaths the residue of the estate to the Decedent's son, John Porpora, in the amount of 50% and to the Decedent's daughter, Jan Porpora, in the amount of 50%. (See Notice of Motion, Exhibit B).
John Porpora (the "Petitioner") has petitioned to probate the March 2011 Will. Jan Porpora, joined by Decedent's grandchildren Nicole Wagner and Jenny Eisenhauer (collectively, the "Objectants") have jointly filed objections to probate. (Notice of Motion, Exhibit G).
It is admitted and undisputed that the sole ground for objection to the March 2011 Will is the alleged undue influence of Petitioner John Porpora upon the Decedent in the 2011 Will's execution.
The Decedent had a series of alleged wills prepared during her life. The first was drafted in 1992 (the "1992 Will"). The 1992 Will bequeathed the Decedent's residuary estate to her three children, Petitioner John Porpora, Objectant Jan Porpora and Delores McKeeby in equal shares, and to their heirs per stirpes. (See Jan Porpora Affd., Exhibit C).
In 2009, however, Delores McKeeby passed away. Following this event, and due to it, the Decedent hired attorney-draftsman Dennis Caplicki, Esq. to prepare a new alleged will dated January 2010 (the "January 2010 Will"). (See Notice of Motion, Exhibit A; Caplicki Affd. in Support; Jan Porpora Affd. Exhibit E).
The January 2010 Will bequeathed the Decedent's residuary estate to her then-surviving children, Petitioner John Porpora (50%) and Objectant Jan Porpora (50%) and removed any share of the residuary estate from Delores (who had died) as well as any succession rights to Delores' heirs per stirpes. Instead, the January 2010 Will provided Delores' heirs (Objectants Nicole Wagner and Jenny Eisenhauer) with specific bequests of $5,000.00 each, and no succession rights to a third of the residuary estate, which had previously existed under the 1992 Will.
According to non-party witness Joseph DeBartolo (Decedent's brother), in late 2010 the Decedent expressed to him and his wife, Karen (now deceased), that the January 2010 Will was not what she wanted. Joseph alleges that the Decedent wanted her estate to be divided into three equal shares, such that Petitioner John Porpora would receive a third, Objectant Jan Porpora would receive a third and Delores' surviving children (Objectants Nicole Wagner and Jenny Eisenhauer) would receive Delores' third. To that end, Joseph claims that the Decedent asked him for help in preparing new will to supersede the January 2010 Will.
According to Joseph, he, his wife Karen and the Decedent sat down and wrote handwritten notes regarding proposed changes to the January 2010 Will. None of those notes have been provided to the Court as an exhibit. Joseph states that Karen located a new attorney for the Decedent, Robert McManus, Esq., and that she and Joseph took the Decedent to meet him. Joseph stated that the Decedent was very clear with Mr. McManus that he should only address her (i.e., the Decedent) with regard to the will discussion. After the Decedent's meeting with Mr. McManus, Joseph, Karen and the Decedent reviewed the draft will prepared by Mr. McManus and created a document entitled "CORRECTIONS TO Last Will and Testament of Santine Porpora" for Mr. McManus' use. Joseph stated that the document was typed by Karen. The document, itself, states that some of its content came from Joseph and Karen while other parts came from things that the Decedent said to them. Item No.8 purports to relate statements by the Decedent that she had been thinking a lot lately about fairness and decided that her granddaughters, Objectants Nicole and Jenny, should inherit the share that their mother, Delores, would have inherited if she survived, and that there should not be specific bequests to the grandchildren.1 (See DeBartolo Affd., Ex. B).
A new purported will prepared by Mr. McManus was then signed on November 19, 2010 (the "November 2010 Will"). (See Notice of Motion, Exhibit F). Thereafter, on November 24, 2010, Joseph wrote a letter to Petitioner John Porpora and Objectant Jan Porpora wherein he discussed how he and the Decedent worked together (in a manner specifically intended to be surreptitious) to change the January 2010 Will with a new lawyer. Purportedly, Joseph had the Decedent sign the letter and state that all questions should be directed to him rather than to the Decedent herself.2 (See DeBartolo Affd., Exhibit C).
By letter dated February 19, 2011, Petitioner John Porpora responded to Joseph's letter, expressing his dismay, questioning the Decedent's capacity to make the November 2010 Will and asking Joseph to destroy the November 2010 Will.3 (See DeBartolo Affd., Exhibit D).
Thereafter, on March 14, 2011, the Decedent returned to attorney-draftsman Dennis Caplicki, Esq. to execute the March 2011 Will offered for probate here. According to the affidavit and deposition testimony of Mr. Caplicki, he understood that the Decedent wished to change under January 2010 Will to provide $5,000.00 bequests to all five of her grandchildren, instead of $5,000.00 bequests only being made to Objectants Nicole and Jenny. At the time of the March 2011 Will's preparation and execution, Mr. Caplicki was not aware of Mr. McManus' November 2010 Will, nor did the Decedent inform him of the November 2010 Will. However, Mr. Caplicki testified that at both of his will executions, in January 2010 and in March 2011, he observed the Decedent to be of sound mind and composure, with no indications of any lack of testamentary capacity or undue influence being placed upon her.
At the time the Decedent made the January 2010 Will, the November 2010 Will and the March 2011 Will, she was 92 and 93 years of age, respectively. When she died on August 16, 2018, she was 100 years old and within four months of becoming 101 years old.
Petitioner John Porpora has held powers of attorney and health care proxies for the Decedent since 1989, when the Decedent was 71, following the death of Decedent's husband in 1987. To the Petitioner's credit, as well as to the Objectants' credit, the record does not contain any allegations concerning Petitioner's mistreatment, abuse or domination of the Decedent, whatsoever, despite the fact that Petitioner was the primary source of assistance and attorney-in-fact to the Decedent for the past three decades.
However, the record does reveal acrimony in the family-at-large. It arises from a dispute over $15,000.00 between Petitioner John Porpora and Objectants Nicole and Jenny. The Petitioner had lent $15,000.00 to his sister Delores, during her lifetime, to repair and improve her real property. The Petitioner expected that the $15,000.00 would be repaid to him after Delores died. No one disputes the various forms of assistance, financial and otherwise, that Petitioner provided to Delores during her lifetime. Nonetheless, for unstated reasons, Objectants Nicole and Jenny dispute this particular claim for the repayment of $15,000.00. As a result of Jenny and Nicole failing to address their alleged responsibility, the Petitioner and his wife have decided to "shun" Nicole and Jenny and to refuse to appear at any family events that Nicole and Jenny attend until the dispute is resolved. Petitioner and his wife have also urged their daughter not to have any association with Nicole and Jenny until this dispute is resolved.
The Objectants' allegation of undue influence as it relates to the March 2011 Will is based upon the acrimony arising from the $15,000.00 dispute. The Objectants allege, primarily through the testimony of non-party Joseph DeBartolo, that the Petitioner urged the Decedent to execute a new will (the March 2011 Will) to override the previous will (the November 2010 Will) due to his dispute with Nicole and Jenny and/or his own personal "greed". When Joseph was asked if he had any facts to support his conclusion that the Petitioner unduly influenced the Decedent in going back to Mr. Caplicki to execute the March 2011 Will, he stated as...
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