Michels v. Michels (In re Michels)

• Decision Date: 31 March 2021
• Docket Number: File No. 390506/16,2019–00566
• Citation: 192 A.D.3d 1110,145 N.Y.S.3d 555
• Parties: In the MATTER OF Rita MICHELS, etc., deceased. John Michels, appellant; v. Lorraine Michels, et al., respondents.
• Court: New York Supreme Court — Appellate Division

192 A.D.3d 1110
145 N.Y.S.3d 555

In the MATTER OF Rita MICHELS, etc., deceased.

John Michels, appellant;
v.
Lorraine Michels, et al., respondents.

2019–00566
File No. 390506/16

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

Argued—December 8, 2020
March 31, 2021

145 N.Y.S.3d 556

Jonathan E. Kroll & Associates, PLLC, Garden City, N.Y. (Rachel Schulman of counsel), for appellant.

Law Offices of E. Michael Rosenstock, P.C., Rockville Centre, NY, for respondents.

LEONARD B. AUSTIN, J.P., SYLVIA O. HINDS–RADIX, FRANCESCA E. CONNOLLY, VALERIE BRATHWAITE NELSON, JJ.

DECISION & ORDER

In a contested probate proceeding, the petitioner appeals from an order of the Surrogate's Court, Nassau County (Margaret C. Reilly, S.), dated October 16, 2018. The order, insofar as appealed from, denied those branches of the petitioner's

145 N.Y.S.3d 557

motion which were for summary judgment dismissing the objections to probate based on lack of due execution and undue influence.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs payable personally by the objectants, and those branches of the petitioner's motion which were for summary judgment dismissing the objections to probate based on lack of due execution and undue influence are granted.

Rita Michels (hereinafter the decedent) died on June 14, 2016. She was survived by three of her five children and by multiple grandchildren, including Anne Marie Michels, Lorraine Michels, and Joseph Michels (hereinafter collectively the objectants), who are the children of Charles Michels (hereinafter Charles), the decedent's son, who predeceased the decedent. From approximately 2001, Anne Michels (hereinafter Anne), the decedent's daughter, lived with the decedent in the decedent's home.

In September 2016, the petitioner, John Michels, as executor of the decedent's estate, offered a written instrument dated February 24, 2010, for probate (hereinafter the 2010 will). The 2010 will distributed all of the decedent's property to a living trust created on October 16, 2003, and any amendments or restatements thereto. The trust provided that each of the decedent's children would receive an equal share of the trust property upon the decedent's death. However, the trust excluded the descendants of Charles from any distribution. An amendment to the trust dated February 24, 2010, provided that Anne would have the right to live in the decedent's home rent free until it was sold.

In April 2017, the objectants filed objections to probate, alleging, inter alia, lack of due execution and undue influence. After the completion of discovery, the petitioner moved for summary judgment dismissing the objections to probate. In an order dated October 16, 2018, the Surrogate's Court, inter alia, denied those branches of the petitioner's motion which were for summary judgment dismissing the objections based on lack of due execution and undue influence. The petitioner appeals.

The 2010 will was prepared by the decedent's estate attorney and executed in...