McCarthy v. Ljungkull (In re Moles)

• Decision Date: 13 December 2011
• Citation: 2011 N.Y. Slip Op. 08966,933 N.Y.S.2d 685,90 A.D.3d 473
• Parties: In re Probate Proceeding, WILL OF Robin MOLES, Deceased.Elsie McCarthy, et al., Proponents–Respondents, v. Christopher R. Ljungkull, Contestant–Appellant.
• Court: New York Supreme Court — Appellate Division

2011 N.Y. Slip Op. 08966

90 A.D.3d 473

933 N.Y.S.2d 685

In re Probate Proceeding, WILL OF Robin MOLES, Deceased.Elsie McCarthy, et al., Proponents–Respondents,

v.Christopher R. Ljungkull, Contestant–Appellant.

Supreme Court, Appellate Division, First Department, New York.

Dec. 13, 2011.

Ross & Orenstein LLC, Minneapolis, MN (Jeff I. Ross of counsel), for appellant.

Turret & Associates, P.C., Melville (Ira A. Turret of counsel), for respondents.

GONZALEZ, P.J., FRIEDMAN, MOSKOWITZ, ACOSTA, RICHTER, JJ.

Decree, Surrogate's Court, New York County (Nora S. Anderson, S.), entered on or about May 16, 2011, admitting the document dated December 27, 2007 to probate as the last will and testament of Robin Moles, a/k/a Robin A. Moles, and bringing up for review an order, same court and Surrogate, entered on or about April 6, 2011, that granted proponents' motion for summary judgment dismissing the objection to probate based, inter alia, on undue influence and lack of testamentary capacity, unanimously reversed, on the law, without costs, the decree vacated, and the motion denied.

This proceeding relates to the validity of a will the deceased, Robin A. Moles, executed on December 27, 2007, in which the deceased disinherited all of the beneficiaries of her longstanding earlier will, including her nephew, objectant Christopher Ljungkull, and left her entire estate, worth in excess of $8 million, to her long-time companion and caregiver, petitioner Elsie McCarthy. Ljungkull filed objections on the grounds that, inter alia, the deceased lacked testamentary capacity and executed the will under undue influence.

Because there are issues of fact as to whether the decedent understood the consequences of executing the 2007 will and whether she was under undue influence at the time she executed it, we reverse. Circumstantial evidence may demonstrate undue influence, provided that the evidence is substantial ( Matter of Walther, 6 N.Y.2d 49, 54, 188 N.Y.S.2d 168, 159 N.E.2d 665 [1959] ). Here, there is considerable circumstantial evidence. The facts and circumstances surrounding the will signing, the nature of the will, decedent's family relations, the condition of her health and mind, her dependency upon and subjection to the control of petitioner, the opportunity and disposition of petitioner to wield her influence over the decedent, and the acts and declarations of petitioner all raise questions as to whether or not there was undue influence over the...