Prevratil v. (In re Estate of Prevratil)

• Decision Date: 24 July 2014
• Citation: 990 N.Y.S.2d 697,2014 N.Y. Slip Op. 05478,121 A.D.3d 137
• Parties: In the Matter of the ESTATE OF Frank PREVRATIL, Deceased. Neil Prevratil, as Executor of the Estate of Frank Prevratil, Deceased, Under a Will Dated September 28, 2006, Appellant. (Proceeding No. 1.) In the Matter of the Estate of Frank Prevratil, Deceased. Rebecca L. Adrian et al., as Beneficiaries and/or Proposed Administrator s CTA of the Estate of Frank Prevratil, Deceased, Under a Will Dated May 24, 2011, Respondents; Neil Prevratil, Appellant, and Charles Prevratil, Respondent. (Proceeding No. 2.) In the Matter of the Estate of Frank Prevratil, Deceased. Frank A. Prevratil, as Executor of the Estate of Frank Prevratil, Deceased, Under a Will Dated May 24, 2011, Petitioner; Neil Prevratil, Appellant. (Proceeding No. 3.).
• Court: New York Supreme Court — Appellate Division

121 A.D.3d 137

990 N.Y.S.2d 697

2014 N.Y. Slip Op. 05478

In the Matter of the ESTATE OF Frank PREVRATIL, Deceased.

Neil Prevratil, as Executor of the Estate of Frank Prevratil, Deceased, Under a Will Dated September 28, 2006, Appellant. (Proceeding No. 1.)

In the Matter of the Estate of Frank Prevratil, Deceased.

Rebecca L. Adrian et al., as Beneficiaries and/or Proposed Administrator s CTA of the Estate of Frank Prevratil, Deceased, Under a Will Dated May 24, 2011, Respondents;

Neil Prevratil, Appellant,

and

Charles Prevratil, Respondent. (Proceeding No. 2.)

In the Matter of the Estate of Frank Prevratil, Deceased.

Frank A. Prevratil, as Executor of the Estate of Frank Prevratil, Deceased, Under a Will Dated May 24, 2011, Petitioner;

Neil Prevratil, Appellant. (Proceeding No. 3.).

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

July 24, 2014.

John T. Casey Jr., Troy, for appellant.

Rowlands & LeBrou, PLLC, Latham (James J. LeBrou of counsel), for respondents in proceeding No. 2.

Before: PETERS, P.J., LAHTINEN, McCARTHY and GARRY, JJ.

PETERS, P.J.

Appeal from an order of the Surrogate's Court of Columbia County (Nichols, S.), entered January 17, 2013, which granted a motion by petitioners and Charles Prevratil in proceeding No. 2 for summary judgment dismissing Neil Prevratil's objections to a May 24, 2011 will of decedent.

In 2006, decedent executed a will naming one of his two sons, Neil Prevratil, as executor and sole beneficiary of his estate. The major asset of decedent's estate was a farm which he used as a refuge for rescued horses. In February 2011, after decedent was diagnosed with lung cancer, he contacted an attorney for the purpose of revising his will. As decedent's medical condition worsened, decedent's brother, Charles Prevratil, and sister-in-law, Deborha Prevratil, traveled from their home in Florida to New York in April 2011 to care for decedent. On May 24, 2011, five days before his death, decedent executed a new will in which he named his other son, petitioner Frank A. Prevratil, as executor, and divided his estate equally between decedent's friends, petitioners Sonya J. Stack and Rebecca L. Adrian (hereinafter collectively referred to as petitioners), and Charles Prevratil. The will specifically disinherited Neil Prevratil.

On June 20, 2011, Neil Prevratil commenced proceeding No. 1 seeking to admit decedent's 2006 will to probate. Petitioners thereafter prevailed upon Frank A. Prevratil and his wife—the named successor executor—to petition to admit the 2011 will to probate. After they allegedly refused to do so, on August 6, 2011, petitioners commenced proceeding No. 2 seeking to admit the 2011 will to probate. Frank A. Prevratil subsequently commenced proceeding No. 3 also seeking probate of the 2011 will. Neil Prevratil filed objections to the 2011 will, claiming improper execution, lack of testamentary capacity and that the will was procured by fraud and undue influence, and also seeking a determination that petitioners had triggered the will's no contest clause by offering the will for probate and seeking letters of administration. Following discovery, petitioners and Charles Prevratil (hereinafter collectively referred to as the proponents) moved for summary judgment dismissing the objections. Surrogate's Court granted the motion and this appeal by Neil Prevratil ensued.

First addressing the challenge to decedent's testamentary capacity, the burden rested with the proponents 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 [his] bounty, and [his] relationship to them” (Matter of Ruparshek, 36 A.D.3d 998, 999, 828 N.Y.S.2d 623 [2007];see Matter of Kumstar, 66 N.Y.2d 691, 692, 496 N.Y.S.2d 414, 487 N.E.2d 271 [1985] ). Here, the proponents offered the self-executing affidavit of the attesting witnesses, who opined that decedent was of sound mind and memory and in all respects competent to make a will. This constituted prima facie evidence of the facts attested to and created a presumption of testamentary capacity ( see Matter of Walker, 80 A.D.3d 865, 866, 914 N.Y.S.2d 379 [2011],lv. denied16 N.Y.3d 711, 2011 WL 1584878 [2011];Matter of Paigo, 53 A.D.3d 836, 838, 863 N.Y.S.2d 508 [2008] ). Further, the testimony of these two witnesses and Harry Miller, the attorney who drafted the will, established that decedent was aware of the nature and extent of his property and knew who the objects of his bounty were both prior to and at the time of execution. To that end, Miller testified that decedent ardently wished the farm to remain a horse sanctuary after his death and, believing that Neil Prevratil would promptly sell the property, decided to change his will to devise such property to petitioners, who would further that goal.

With the burden shifted to Neil Prevratil to produce evidence demonstrating a triable issue of fact ( see Matter of Scaccia, 66 A.D.3d 1247, 1251, 891 N.Y.S.2d 484 [2009];Matter of Murray, 49 A.D.3d 1003, 1005, 853 N.Y.S.2d 680 [2008] ), he focused upon decedent's weakened condition and use of analgesic medications during the period of time preceding the will signing. That decedent suffered from terminal cancer and was in a declining physical state as a result thereof does not, without more, create a question of fact on the issue of testamentary capacity, as “the appropriate inquiry is whether the decedent was lucid and rational” at the time the will was signed (Matter of Paigo, 53 A.D.3d at 838, 863 N.Y.S.2d 508 [internal quotation marks and citations omitted]; see Matter of Alibrandi, 104 A.D.3d 1175, 1176, 960 N.Y.S.2d 760 [2013];Matter of Murray, 49 A.D.3d at 1005, 853 N.Y.S.2d 680;Matter of Williams, 13 A.D.3d 954, 957, 787 N.Y.S.2d 444 [2004],lv. denied5 N.Y.3d 705, 801 N.Y.S.2d 2, 834 N.E.2d 781 [2005] ). Furthermore, Deborha Prevratil testified that decedent stopped taking pain medication on the evening before the will signing “because he wanted to be of clear mind,” and there is no evidence in the record of any medication ingestion by decedent until after the 2011 will had been executed. Lacking any proof that decedent was not rational, lucid or competent at the time he executed the will, Surrogate's Court properly granted summary judgment dismissing this objection ( see Matter of Castiglione, 40 A.D.3d 1227, 1228, 837 N.Y.S.2d 360 [2007],lv. denied9 N.Y.3d 806, 842 N.Y.S.2d 782, 874 N.E.2d 749 [2007];Matter of Seelig, 13 A.D.3d 776, 777, 786 N.Y.S.2d 610 [2004],lv. denied4 N.Y.3d 707, 795 N.Y.S.2d 517, 828 N.E.2d 620 [2005] ).

Neil Prevratil also argues that decedent's will was the product of undue influence on the part of Deborha Prevratil and the proponents. “To establish undue influence, the burden is on the objectant to show that the influencing party's actions are so pervasive that the will is actually that of the influencer, not that of the decedent” (Matter of Malone, 46 A.D.3d 975, 977, 846 N.Y.S.2d 782 [2007] [citations omitted]; see Matter of Greenwald, 47 A.D.3d 1036, 1037, 849 N.Y.S.2d 346 [2008] ).

“[T]he influence exercised [must] amount[ ] 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 [or her] free will and desire, but which he [or she] was unable to refuse or too weak to resist” (Matter of Walther, 6 N.Y.2d 49, 53, 188 N.Y.S.2d 168, 159 N.E.2d 665 [1959];see Matter of Alibrandi, 104 A.D.3d at 1178, 960 N.Y.S.2d 760;Matter of Greenwald, 47 A.D.3d at 1037, 849 N.Y.S.2d 346).

Although undue influence may be proven through circumstantial evidence, such evidence must be “of a substantial nature” (Matter of Walther, 6 N.Y.2d at 54, 188 N.Y.S.2d 168, 159 N.E.2d 665 [internal quotation marks and citations omitted]; see Matter of Aoki, 99 A.D.3d 253, 265, 948 N.Y.S.2d 597 [2012];Matter of Moles, 90 A.D.3d 473, 474, 933 N.Y.S.2d 685 [2011] ).

Initially, we find that the evidence adduced was insufficient to establish that a confidential relationship existed between decedent and either Stack or Deborha Prevratil, such that the burden would shift to the proponents to show that the transaction from which they benefited was free from undue influence ( see Matter of Graeve, 113 A.D.3d 983, 984, 979 N.Y.S.2d 197 [2014];Matter of Seelig, 13 A.D.3d at 779, 786 N.Y.S.2d 610;Feiden v. Feiden, 151 A.D.2d 889, 891, 542 N.Y.S.2d 860 [1989] ).¹ Although Stack transmitted documents to decedent's attorneys during the revision process—including both the initial changes naming her and Adrian as beneficiaries of the estate as well as the subsequent addition of Charles Prevratil as a beneficiary—Miller testified that decedent had authorized documents to be sent to him through Stack, as decedent did not have a fax machine. Testimony further established that any changes to the will were reviewed with decedent to confirm that they reflected his intent. There is nothing in the record to indicate that Stack's role was anything more than a “conduit to effectuate decedent's desires” ( Matter of Greenwald, 47 A.D.3d at 1038, 849 N.Y.S.2d 346). As for Deborha Prevratil, although she prepared meals and administered medications for decedent in the final period of his illness, he was not under her exclusive care and control and had fairly regular contact with friends as his illness progressed ( compare Oakes v. Muka, 69 A.D.3d 1139, 1140, 893 N.Y.S.2d 677 [2010],appeal dismissed15 N.Y.3d 867, 910 N.Y.S.2d 33, 936 N.E.2d 915 [2010] ). Nor was there any proof that decedent's mental condition had deteriorated or that Deborha Prevratil had any role in his financial affairs. Moreover, any legal presumption that decedent's decision to include Charles Prevratil as a beneficiary was the product of undue influence was counterbalanced by the familial relationship between the...