Matter of Estate of Zirinsky

• Decision Date: 11 September 2007
• Docket Number: 2006-00012.
• Citation: 841 N.Y.S.2d 637,43 A.D.3d 946,2007 NY Slip Op 06703
• Parties: In the Matter of the Estate of RUTH ZIRINSKY, Deceased. ROBERT ZIRINSKY, Respondent; LINDA ZIRINSKY GILBERT et al., Appellants. GARY B. FREIDMAN, Nonparty Appellant; MICHAEL K. FEIGENBAUM, Nonparty Respondent.
• Court: New York Supreme Court — Appellate Division

43 A.D.3d 946

841 N.Y.S.2d 637

2007 NY Slip Op 06703

In the Matter of the Estate of RUTH ZIRINSKY, Deceased ROBERT ZIRINSKY, Respondent LINDA ZIRINSKY GILBERT et al., Appellants GARY B. FREIDMAN, Nonparty Appellant MICHAEL K. FEIGENBAUM, Nonparty Respondent.

2006-00012.

Appellate Division of the Supreme Court of the State of New York, Second Department.

Decided September 11, 2007.

In a contested probate proceeding, the objectants, Linda Zirinsky Gilbert and Jill Zirinsky Hirsch, appeal, and Gary B. Freidman, as guardian ad litem for Julia Francis Hirsch, Emily Margaret Hirsch, Kate Lauren Hirsch, Benjamin Samuel Gilbert, and Zachary William Gilbert, separately appeals, from a decree of the Surrogate's Court, Nassau County (Riordan, J.), dated December 6, 2005, which granted the proponent's motions for summary judgment dismissing the objections to

probate, denied the objectants' cross motion for additional discovery, and admitted the will to probate. [See 10 Misc 3d 1052(A) 2005 NY Slip Op 51881(U).]

Ordered that the decree is affirmed, with one bill of costs payable by the appellants appearing separately and filing separate briefs.

The objectants in this probate proceeding are the daughters of the decedent, Ruth Zirinsky. They contend that their brother, Robert Zirinsky, the proponent of the decedent's will, exercised undue influence over the decedent to induce her to depart from her longstanding estate plan which treated all three children equally, and to instead execute a new will in which she exercised a testamentary power of appointment in such a way that the proponent would receive 50% of the family business and affiliated interests, and the objectants would each receive 25%. The decedent explained in a letter to her children that accompanied the will that she loved them "all equally," but had made the difficult decision that it was "both equitable and in the long term interest of the business that Robert, as the only active participant, should succeed to a larger share." The will was executed within a year after the decedent had been diagnosed with cancer at the age of 63. The record is undisputed that, for the next eight years until she died, the decedent continued to reside with her second husband, leading a full and active life, and remaining close to all her children.

The Surrogate's Court granted the proponent's motions for summary judgment dismissing the objections to probate of the decedent's will, and we affirm. In support of his motions, the proponent established his prima facie entitlement to judgment as a matter of law by showing, among other things, that the will had been duly executed, that the decedent possessed testamentary capacity, and that no undue influence or fraud had been exercised upon the decedent (see Matter of Spinello, 291 AD2d 406, 407 [2002]; Matter of Bustanoby, 262 AD2d 407, 408 [1999]). In opposition, the objectants and Gary B. Freidman, the guardian ad litem for the objectants' children, contended that an inference of undue influence sufficient to require a trial arose from the evidence, inter alia, that the proponent, an attorney and cotrustee with the decedent of trusts established for her benefit, was in a confidential relationship with the decedent, and that he was involved in selecting the attorney who drafted the will and participated in the first meeting between the decedent and the attorney draftsman.

For a will to be invalidated based on undue influence, "`[i]t must be shown that the influence exercised amounted 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 free will and...