Matter of Murray

• Decision Date: 13 March 2008
• Docket Number: 502875.
• Citation: 2008 NY Slip Op 02068,49 A.D.3d 1003,853 N.Y.S.2d 680
• Parties: In the Matter of the Estate of ANTOINETTE M. MURRAY, Deceased. DEBORAH A. SLEZAK, as Executor of ANTOINETTE M. MURRAY, Deceased, Respondent; RICHARD FOLMSBEE et al., Appellants.
• Court: New York Supreme Court — Appellate Division

49 A.D.3d 1003

853 N.Y.S.2d 680

2008 NY Slip Op 02068

In the Matter of the Estate of ANTOINETTE M. MURRAY, Deceased DEBORAH A. SLEZAK, as Executor of ANTOINETTE M. MURRAY, Deceased, Respondent RICHARD FOLMSBEE et al., Appellants.

502875.

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

Decided March 13, 2008.

Appeal from an order of the Surrogate's Court of Saratoga County (Seibert, Jr., S.), entered April 6, 2007, which granted petitioner's motion for summary judgment dismissing respondents' objections to decedent's will and admitted the will to probate.

Peters, J.

Antoinette M. Murray (hereinafter decedent) died in October 2005 leaving a will dated April 2002 which bequeathed $1,000 each to two churches, and the remainder of her estate to the ESF College Foundation, Inc. to create a scholarship fund named for herself and her predeceased husband. When petitioner, the attorney who drafted the will and presided over its execution, offered the will for probate, respondents, who are decedent's grandnieces and grandnephews, filed objections contending, among other things, that decedent lacked testamentary capacity and that the will was procured by undue influence. Following discovery, petitioner moved for summary judgment dismissing respondents' objections and admitting decedent's will to probate. Surrogate's Court granted petitioner's motion and respondents now appeal.

Respondents first contend that Surrogate's Court erred in granting petitioner's motion for summary judgment because a question of fact exists as to whether decedent possessed the requisite testamentary capacity when she executed the will. The initial burden of proving competency to execute the will rested with petitioner, who had to demonstrate that decedent "understood the consequences of executing the will, knew the nature and extent of the property being disposed of and knew the persons who were the natural objects of her bounty, and her relationship to them" (Matter of Ruparshek, 36 AD3d 998, 999 [2007]; see Matter of Castiglione, 40 AD3d 1227, 1228 [2007], lv denied 9 NY3d 806 [2007]). Respondents concede that Surrogate's Court properly found that petitioner met her initial evidentiary burden of proving that decedent possessed the requisite testamentary capacity. Such evidence included petitioner's own affirmation, in which she described in detail the events surrounding the drafting and signing of decedent's will, during which time she adjudged decedent to be competent as well as the concurrent work that petitioner performed in assisting decedent in decedent's capacity as the executor of her sister's estate, which included multiple financial transactions that were executed through June 2003. Petitioner also proffered the affidavits of subscribing witnesses Darcy Lewis and Bonnie Yetter, both of whom also testified that decedent was of sound mind and fully competent when she signed the subject will. Additionally, petitioner submitted the affidavit of William Busino, decedent's physician from 1983 until her death, who stated that there were no facts in decedent's medical records from 2002 which suggested incompetence and that, upon his personal recollection, throughout the entirety of 2002, decedent was competent to execute a will.^* The burden thus shifted to respondents to raise a genuine issue of fact (see Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; Matter of Seelig, 13 AD3d 776, 777 [2004], lv denied 4 NY3d 707 [2005]).

To meet their burden, respondents proffered medical records of decedent, as well as numerous depositions from both party and nonparty witnesses. The medical records were unavailing inasmuch as the earliest report from a neurologist, dated October 2003, suggested that decedent's dementia was first diagnosed around April 2003, a full year after the...