Estate of Bux 2024 NY Slip Op 34583(U) December 19, 2024 Surrogate's Court, Bronx County Docket Number: File No. 2019-2267/A Judge: Nelida Malave-Gonzalez Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. SURROGATE'S COURT, BRONX COUNTY
December 19, 2024
ESTATE OF JOSEPHS. BUX, Deceased File No.: 2019-2267/A
In this contested probate proceeding, the proponent, the
decedent's son Christopher Bux ("Christopher''), refiled a motion seeking
summary judgment dismissing the prior objections and supplemental
objections filed by another son, Joseph Bux, Jr. ("Joseph Jr."), to the probate
of the decedent's will dated September 17, 2019. The court denied, without
prejudice, Christopher's previous summary judgment motion requesting the
court to dismiss Joseph Jr.'s prior objections on the grounds, inter alia, that
discovery was then incomplete, there were significant issues concerning
testamentary capacity and it was premature to assess the objections
concerning due execution, fraud and undue influence (see Matter of Bux,
NYLJ, Dec. 27, 2021 at 17, col 2 [Sur Ct, Bronx County 2021]).
Christopher then retained new counsel who filed an order to
show cause seeking to restore the summary judgment motion to the
calendar. That application was granted on consent of Joseph Jr.'s attorney,
who was thereafter granted leave to withdraw (see Matter of Bux, NYLJ, Feb.
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16, 2024 at 18, col 2 [Sur Ct, Bronx County 2024]). Joseph Jr. now proceeds
self-represented. Christopher avers that discovery is completed and the
testimony contained in the filed transcripts of the SCPA 1404 examinations
of the attesting witnesses, Gerald Sheiowitz, Esq., the attorney draftsperson
("Sheiowitz") and Hillary Sheiowitz ("Hillary"), Sheiowitz' daughter who works
as a paralegal in his law office, supports the granting of summary judgment
dismissing all of the objections.
In determining the refiled application, the court searched the
record and reviewed all of the prior submissions, including the prior
objections and pleadings with exhibits; the affirmation and memorandum of
law of Lucy F. Titone, Esq. in support of summary judgment annexing
Sheiowitz' and Hillary's SCPA 1404 examination transcripts; the
"supplemental verified objections" verified on the 26 th day of April, 2024;
Joseph Jr. 's supplemental affidavit in opposition to summary judgment sworn
to on the 25 th day of April, 2024 annexing affirmations from the decedent's
former spouse, Joyce Kelly; the decedent's brother, Michael Bux; a nephew,
Michael Bux, Jr.; a niece, Stephanie Bux; and decedent's co-workers at a
Pepperidge Farm depot, Marshal Harris and Patrick Gooding; Christopher's
reply affidavit sworn to the 6th day of May, 2024; affirmation of Lucy F.
Titone, Esq. dated May 6, 2024 with exhibits; and Sheiowitz' affidavit in
support dated May 5, 2024 with exhibits.
Background
The extensive history of the proceedings is detailed in the prior
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decision denying summary judgment dismissing the objections (see Matter
of Bux, NYLJ, Dec. 27, 2021 at 17) and will not be repeated herein except
for illustrative purposes as follows:
"The decedent died on October 1, 2019 at age 72. His distributees are the two sons and an estranged spouse for whom a waiver and consent was filed. The will was executed less than two weeks prior to the decedent's death from cancer and was attorney supervised with a self-proving affidavit. The decedent's signature on the instrument is shaky. The instrument bequeaths a bread route owned by the decedent and associated equipment, three parcels of realty located in upstate, New York and the entire residuary estate to the proponent and specifically makes no provisions for the objectant and the estranged spouse. On the same date that the will was signed, the decedent executed a durable power of attorney in favor of the proponent and a separate document conferring authority to certain gift transactions. It is not known whether such gifting authority was exercised. He also executed a health care proxy appointing the proponent as agent on September 21, 2019. Preliminary letters testamentary issued to the proponent on November 17, 2019."
Christopher's Contentions in Support of Summary Judgment
In support of the refiled summary judgment application,
Christopher's attorney avers that the will was attorney drafted and supervised
when duly executed by the decedent on September 17, 2019, the decedent
possessed testamentary capacity at all of the relevant times and he
indicated to others for many months prior to the will's execution the reasons
for making Christopher his sole testamentary beneficiary. Accordingly,
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Christopher urges that there is no issue of undue influence or fraud. In
further support, counsel annexes transcripts of the SCPA 1404 examinations
of Sheiowitz and Hillary. Hillary Sheiowitz ("Hillary S."), who works as a
paralegal in his law office.
(1) There Was Extensive Pre-Execution Planning
Sheiowitz testified that he practiced law for over 52 years
focusing on estates, real estate and guardianships. He recollected that the
decedent contacted him by telephone in or about May of 2019, asked him to
draft a will and scheduled an in-person appointment. However, the decedent
had to cancel this and several subsequent meetings as he was "not feeling
well." During this time, they had several telephone discussions concerning
what the decedent wanted "to put in the will." Sheiowitz personally met two
times with the decedent at The Hebrew Home for the Aged in Riverdale("The
Hebrew Home"). The first in person meeting was in June or July 2019 and
the second was on the date the will was executed. The first time they
reviewed the attorney's notes from the prior telephone conferences and
Sheiowitz told the decedent that he would draft the will consistent with his
indicated wishes that the disposition of the estate was "all to Christopher."
The decedent specifically noted that his estate consisted of a "bread route"
as well as three upstate properties, one in Middletown, New York and two in
Deposit, New York, but he was not sure whether they still belonged to him
as there were foreclosure proceedings, but he wanted to list all of them in the
will. Sheiowitz also testified that his notes state "another child
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Joseph-nothing. For reasons best known to me." The decedent also stated
that he wanted to exclude his wife Irene "because of a prior arrangement"
and ascribed the reason for disinheriting Joseph because "he is a criminal,
a convicted felon, and that he gave him so much money, which would be
more than half his inheritance" and "paid a lot of his legal fees over the
years." The decedent also discussed having a power of attorney with a gift
rider because he "wanted to make sure that his son [Christopher] gets
everything."
Although Sheiowitz acknowledges he discussed scheduling
meeting details with Christopher, he avers that they did not discuss any of
the decedent's assets or estate plan. On September 17, 2019, the date of
execution, Sheiowitz and Hillary went into the decedent's room and the
decedent was in a hospital bed. The only other person in the room was a
patient in the next bed. He asked the decedent whether he was ready to sign
his will and the decedent answered "Yes." Sheiowitz then handed the will to
the decedent, who put on glasses and silently read over all of the provisions
of the will while sitting up with his knees up. Sheiowitz then put a file folder
underneath the will to have a "base" for signing. He also testified that he
would never continue a will execution ceremony if a testator appeared to lack
testamentary capacity. The decedent also reviewed a power of attorney in
favor of Christopher and gift rider, initialed the instruments at various places
and signed those documents.
Hillary testified that although Christopher supplied the
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addresses for the decedent's brother and spouse and scheduling details, she
never observed Sheiowitz and Christopher discussing the decedent's
medical condition, assets or dispositive wishes. At the first meeting with the
decedent, she and Sheiowitz arrived at The Hebrew Home, signed in, went
directly to the decedent's room and proceeded to speak with him about what
he wanted to put in his will. The decedent stated that there were three
properties, there might be a partnership interest and one property may have
been "lost through foreclosure." There was also a Pepperidge Farm bread
route and no other substantial assets. The decedent also stated that
although he was separated from his spouse for over 10 years, they remained
legally married. He got very agitated when speaking about his son Joseph
Jr. and emphasized that he was a convicted felon who had been in two
different "jails." The decedent noted that he paid over $100,000 for Joseph's
legal representation, helped him throughout his life and "he already received
his inheritance." He wanted to leave everything to his son Christopher, who
had been "there for him" and "was a good guy."
(2) Due Execution
According to Hillary's SCPA 1404 testimony, on September 17,
2019, the date of execution, Hillary and Sheiowitz went to The Hebrew
Home. There was a doctor in the hallway with a chart outside the decedent's
room. Hillary told the doctor that they were there to have the decedent sign
some legal documents and she asked how the decedent was. The doctor
replied "He's lucid. You can go in." Once in the room, Sheiowitz asked the
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decedent "How are you doing?" The decedent responded that he had a
recent surgery and had been through a lot, but he "felt okay." There was
another patient in the room, and they pulled the curtain for privacy. After
asking the witnesses for his eyeglasses and to raise his bed, the decedent
proceeded to read the will. After Sheiowitz placed another file folder under
the will, the decedent propped up his legs so it was "like a desk." Hillary
recollected that after the decedent signed the will, she and Sheiowitz filled
out an affidavit at the law office and their signatures were notarized.
(3) The Decedent Possessed Testamentary Capacity
Addressing Joseph Jr.'s allegations that the decedent had "a
long history of depression medications and psychotherapy with cancer
diagnosis and treatment, and that he was sad and scared with significant
fluctuation in mental status," Christopher's attorney opines that the medical
records from The Hebrew Home reflect that although the decedent had mild
memory impairment and his condition fluctuated, he knew the year and
month. On September 16, 2019, the day before the will execution, there is
a notation in the decedent's medical record by Dr. Resmi Sulekha, the
physician whom Hillary described as "Dr. Sulek" who advised the witnesses
in the hall that the decedent was lucid, that the decedent "had on and off
mental status.'' The observations made on September 17, 2019 by another
physician, Dr. Goldstein note without explanation, that while the decedent
"was oriented as to place and time, his attention, concentration, insight and
judgment were impaired." These observations were made at 3:48 p.m.,
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several hours after the will was executed in the late morning.
Counsel notes that none of the medical observations other than
the "lucid" pronouncement concern the decedent's condition at the time the
will was signed, and the only inquiry concerning testamentary capacity is
whether the decedent was lucid and rational at the time the will was made.
Counsel concludes that the medical documentation coupled with the
statements of the physicians and nurses at The Hebrew Home on the date
of execution clearly indicate that the decedent possessed testamentary
capacity.
(4) Lack of Undue Influence and Duress
Counsel concludes that the claim of undue influence and
duress are also meritless, given Sheiowitz's testimony that Christopher had
no input into testamentary planning and that the attorney never met him
prior to the decedent's directing Sheiowitz to prepare a will months prior to
the date of execution. Counsel urges that it is clear from the SCPA 1404
examinations that the decedent wanted to bequeath his entire estate to
Christopher, whom he characterized as a "good guy" who took care of him,
to the exclusion of his estranged wife and Joseph Jr., a convicted felon
whom he already gave approximately $100,000 for legal fees.
Joseph Jr.'s Opposition
(1) Lack of Testamentary Capacity
In opposition to summary judgment, Joseph filed an affidavit
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stating, inter alia, that his objection to the will is "simple." He asserts that the
decedent was administered the opioids Fentanyl, Oxycodone and OxyContin
at the time the will was executed and lacked testamentary capacity. Joseph
Jr. urges that his exclusion as a beneficiary, although he is a son of the
decedent and "helper" for many years demonstrates lack of capacity. He
refers to the court's prior decision denying summary judgment upon review
of medical records submission noting the decedent had a long history of
depression, was administered medications and psychotherapy "with
significant fluctuation of actual state" and that because of OxyContin and
Oxycodone "his attention, concentration, insight and judgment were
impaired, his mental state was "on and off, and he hallucinated."
In further opposition, Joseph Jr. annexes notarized affirmations
from the decedent's brother, Michael Bux, a nephew, Michael Bux, Jr. ("the
nephew") and two nieces, Michelle Bux and Stephanie Bux"the two nieces"),
to refute Sheiowitz' and Hillary's testimony that the decedent raised his leg
to make a "shelf' where the will could be signed as a physical impossibility
upon prior observation of his severely deteriorated condition.
The nephew's affirmation states that during his last visit with
the decedent at The Hebrew Home several weeks prior to his death, the
decedent was in pain despite taking many medications, and "he was not in
the right state of mind at all, mentally and physically." He wore a diaper,
could not get up or roll over and thought the nephew was his son Joseph Jr.
As the decedent always expressed love for all of his children, and Joseph Jr.
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always helped him with money and in other ways, the nephew cannot fathom
how he would "just give everything to Christopher."
(2) The Will was Procured by Undue Influence
In support of the allegation of undue influence, Joseph Jr.
notes that although Christopher maintains that only Joseph Jr. was not
permitted to visit the decedent at the Hebrew Home during his final illness,
other relatives and close friends were also barred from visiting for several
weeks prior to the date of death. He annexes the affidavits of his mother
Joyce Kelly ("the former spouse") and the decedent's friend and caretaker,
Angela Boniello, stating that they were also refused entrance to The Hebrew
Home shortly before the decedent's death, upon Christopher's instruction.
As the decedent begged the former spouse to "make sure you come back"
during her last visit, she cannot fathom why she was prevented from
returning.
Joseph Jr. urges that Christopher excluded everyone close to
the decedent from comforting and taking care of him so that Christopher
would appear to be the only interested, caring family member and be
designated the decedent's sole heir. The former spouse adds that although
the decedent did pay some of Joseph Jr.'s legal fees, she remortgaged her
own home to pay the remainder. She and the decedent often visited Joseph
Jr. together while he was incarcerated in Brooklyn. During those visits, the
decedent would remark how much Joseph Jr. helped him and that he
"wanted Joe to have his business." The former spouse notes that Joseph Jr.
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paid the legal fees involving criminal proceedings in Rockland County
concerning the second spouse's business and also for matrimonial
proceedings with the second spouse, without repayment.
Christopher's Reply
Christopher's reply affidavit refutes the lack of access by family
members other than Joseph Jr., who was denied entry to The Hebrew Home
after he "made a scene" and had to be escorted from the premises.
Christopher notes that, although he had a tumultuous childhood and his
mother "threw him out" at the age of 16, and his parents failed to support
him; nonetheless, he was self-supporting, graduated from college and
received a doctoral degree in physical therapy. He is married with two
children and owns a home. The decedent was proud of his accomplishments
and maintained a close relationship with Christopher and his family.
Joseph Jr., on the other hand, was always a handful. He was
involved with drug dealing at an early age. Christopher alleges that when the
decedent remarried, Joseph Jr. "forged" deed transfer documents changing
the house from the decedent's sole name to himself and took the decedent
and the second spouse to court. As a result, Joseph Jr. paid the second
spouse for her half interest in the realty and claimed that he should be the
sole owner because he previously lent money to the decedent. He also
removed the decedent and Christopher from the decedent's home and
moved the first spouse there.
Christopher alleges that the decedent had no further contact
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with Joseph Jr. for the next 10 years, four of which Joseph Jr. was
incarcerated in federal prison. The decedent found out that Joseph Jr. had
multiple suicide attempts and paid over$100,000 in legal fees to expedite his
release. Although the decedent allowed him to work in the bread route,
Joseph Jr. was of no help. He accumulated parking tickets, stole money and
crashed the bread truck leaving the decedent without a license and unable
to work for a year. When the decedent was diagnosed with kidney cancer,
Christopher and the decedent's brother, Alexander Bux ("Alexander''), took
care of him. Joseph Jr. did not help out in any way, and the decedent had no
contact with him until several weeks prior to his death.
Christopher stresses that the decedent was cognitively intact
during his visits with him at The Hebrew Home. The decedent continued to
state during many conversations with Christopher and his family that he was
proud of Christopher's accomplishments despite his earlier challenges, and
he was sorry that he was unable to help pay for Christopher's schooling and
wasted so much money and time on Joseph Jr.
In further reply, Christopher's attorney annexes a copy of an
undated letter from Christopher to the Hebrew Home with a list of the
persons authorized to visit the decedent that expressly excludes Joseph Jr.
as of September 20, 2019. Counsel alleges that Joseph Jr. was barred from
visiting The Hebrew Home only for the last week of the decedent's life
because of the aforesaid violent outburst. Also submitted is Sheiowitz's
affidavit referencing an annexed photograph of the decedent reading the will
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at the time of execution.
Christopher also submits the affidavit of the decedent's brother
Alexander, who is a nurse practitioner for over 30 years and a professor at
Lehman College, stating that, in his opinion as a credentialed medical
professional, although the decedent was in pain, he was lucid, engaging and
aware of his visitors and was able to communicate until the day before his
death. Annexed is a photograph of the decedent standing next to Alexander
beside a hospital bed taken approximately two weeks prior to his death.
Alexander reiterates that the decedent wanted Christopher to receive his
entire estate because he gave Joseph Jr. over $100,000 for legal fees and
Joseph Jr. had "taken his home" and remained estranged when his
grandmother, the decedent's mother, was dying.
In conclusion, Christopher submits the affidavit of Irene
Danyushenko, the decedent's second spouse ("Irene") stating that although
she was separated from the decedent for many years, they remained friends
and stayed in touch. She and the decedent bought a house together in West
Nyack, New York in 2003 and lived there happily with her son and
Christopher until Joseph Jr. moved in. Joseph Jr. hid large amounts of cash
and guns in the house, picked fights with her son who was only 13 years old
at the time and threatened to kill Irene and her son if she did not sign her
interest in the house over to the decedent and leave. Fearing for both their
lives, Irene and the son fled with only the clothes on their backs and never
returned. Although Irene signed over her entire interest in the realty to the
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decedent as requested, she was only partially compensated months later.
Joseph Jr. Subsequently commenced an eviction proceeding against
Christopher and the decedent. As a result, the decedent had to move back
into his mother's small one bedroom apartment in the Bronx. Irene
concludes that the decedent "hated Joseph Jr. for this" and that she never
saw him visit the decedent at the hospital or "do anything nice for him."
Summary Judgment
Summary judgment cannot be granted unless it clearly appears that
no material issues of fact exist (see Phillips v Joseph Kantor & Co., 31 NY2d
307 [1972]; Glick & Dolleck, Inc. v Tri-Pac Export Corp., 22 NY2d 439
[1968]). The movants must make a prima facie showing of entitlement to
judgment as a matter of law, tendering sufficient evidence in admissible form
to demonstrate the absence of any material issue of fact (see Alvarez v
Prospect Hosp., 68 NY2d 320 [1986]; Friends of Animals, Inc. v Associated
Fur Mfrs. Inc., 46 NY2d 1065 [1979]). When the movants have made out a
prima facie case, the burden shifts to the party opposing the motion to
produce evidentiary proof in admissible form sufficient to establish the
existence of material issues of fact (see Zuckerman v City of New York, 49
NY2d 557 [1980]). Summary judgment is a drastic remedy which requires
that the party opposing the motion be accorded every favorable inference
and issues of credibility may not be determined on the motion but must await
the trial (see F. Garofalo Elec. Co. v New York Univ., 300 AD2d 186 [1 st Dept
2002]).
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Burden of Proof
In a contested probate proceeding, summary judgment is
appropriate where a petitioner establishes a prima facie case for probate and
the objectant fails to raise a triable issue of fact concerning the viability of the
will (see Matter of Moskowitz, 116 AD3d 958 [2d Dept 2014]); Matter of
Sabatelli, 161 AD3d 872 [2 nd Dept 2018]).
The proponent of a will has the burden of proving that the
propounded instrument was duly executed in conformance with statutory
requirements (see EPTL 3-2.1 [a]; Matter of Schmidt, 194 AD3d 723 [2 nd
Dept 2021 ]; Matter of Bux, NYLJ, Dec. 17, 2021 at 17, col 12 [Sur Ct, Bronx
County 2021]).
The proponent must also establish that the decedent
understood the nature and consequences of making the will, the nature and
extent of his or her property, and the natural objects of his or her bounty (see
Matter of Kumstar, 66 NY2d 691,692 [1985], Matter of Falkowsky, 197 AD3d
1300 [2d Dept 2021]; Matter of Bux, NYLJ, Dec. 17, 2021 at 17).
The objectant bears the burden of establishing that the will was
procured as a result of undue influence exercised over the decedent (see
Matter of Nurse, 160 AD3d 745 [2 nd Dept 2018]). To establish undue
influence, facts must be sufficiently set forth to show that the influencing
party had a motive to influence, and that such influence was actually
exercised (see Matter of Walther, 6 NY2d 49 [1959]; Matter of Fellows,
16AD3d 995 [3 rd Dept 2005]). In order to demonstrate the existence of a
[* 15] 16
confidential relationship, there must be evidence of circumstances that
demonstrate inequality or a controlling influence (see Matter of Burrows, 203
AD3d 1699 [4 th Dept 2022]; Matter of Nurse, 160 AD3d at 745). Where the
existence of a confidential relationship is established, the burden shifts to the
beneficiary to show that the transaction is fair and free from undue influence
(see Matter of Albert, 137 AD3d 1266 [2 nd Dept 2016]; Matter of Bartel, 161
Misc 2d 455, 458 [Sur Ct, NY County], aff'd sub nom. Cordovi v Karnbad,
214 AD2d 4 76 [1 st Dept 1995]). Mere speculation and conclusory allegations,
without specificity as to precisely where and when the influence was actually
exerted, are insufficient to raise an issue of fact (see Matter of Ryan, 34
AD3d 212 [1st Dept 2006], Iv denied 8 NY3d 804 [2007]); Matter of Coniglio,
242 AD2d 901 [2 nd Dept 1997]).
The objectant likewise has the burden of proof on the issue of
fraud and must demonstrate, by clear and convincing evidence, that
fraudulent statements were made to the decedent, the proponent knew they
were false, and that they caused the decedent to change her will (see Matter
of Eastman, 63 AD3d 738 [2 nd Dept 2009]; Matter of Gross, 24 AD2d 333,
334 [2 nd Dept 1997]).
Due Execution
Where, as here, the attorney-draftsperson supervised the will's
execution there is a presumption of regularity that the will was properly
executed in all respects (see Matter of Kindberg, 207 NY 220 [1912]; Matter
of Cottrell, 95 NY 329 1884]; Matter of Finocchio, 270 AD2d 418 [2 nd Dept
[* 16] 17
2000]; see also Matter of Coniglio, 242 AD2d 901 [4 th Dept 1997]; Matter of
Hedges, 100 AD2d 586 [2 nd Dept 1986], appeal dismissed, 63 NY2d 944
[1984]). The SCPA 1404 testimony of Sheiowitz, who had over 50 years'
experience supervising the preparation and execution of testamentary
instruments, confirms that, at the time of the will's execution on September
17, 2019, the decedent declared the document to be his last will and
testament, signed it in the attorney's presence and requested that the
attorney sign as a witness (EPTL 3-2.1 [a] [2] - [4]). This testimony and that
of Hillary, the other attesting witness, establish that all formalities of due
execution were complied with. The objections consist merely of allegations
and present no specifics indicating lack of due execution to rebut that
presumption. Accordingly, Christopher has met his burden concerning due
execution.
Testamentary Capacity
In addition to due execution, the proponent must also establish
that the decedent possessed testamentary capacity by demonstrating that
the decedent understood the nature and consequences of making the will,
the nature and extent of his or her property and the natural objects of his or
her bounty (see Matter of Kumstar, 66 NY2d 691 [1985]; Matter of
Falkowsky, 197 AD3d 1300 [2 nd Dept 2021]). The SCPA 1404 testimony
establishes that the will was prepared over the course of several months
utilizing the information provided by the decedent. Specifically, the decedent
accurately informed Sheiowitz that his assets consisted of the bread route
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and several pieces of realty, of which he might only have a fractional interest
and at least one of which might be in foreclosure. The decedent also
acknowledged at all relevant times that his distributees were a spouse from
whom he was estranged and the two sons and that he was adamant that
Christopher was to be the sole testamentary beneficiary and Irene and
Joseph Jr. were not to receive anything.
It is uncontroverted that the decedent was hospitalized with
terminal cancer when the will was executed in the late morning of September
17, 2019. The notes of The Hebrew Home medical staff indicate that, at
various times on that date, the decedent had "on and off mental status,
vascular dementia with depression." Dr. Goldstein notes at 3:48 p.m. that
the decedent was oriented as to place and time, but his attention,
concentration, insight and judgment were impaired." In contrast, Nurse
Sewell reports at 9:55 p.m. that evening "patient alert and oriented, refused
medications including Oxycodone, patient states that medication makes him
hallucinate." There is nothing in the medical notes or SCPA 1404
examination transcripts that the decedent was sedated, lethargic or lacked
understanding at the time the will was executed. Moreover, even if the
decedent's health was in decline, "old age, physical weakness or even senile
dementia" do not disqualify an individual from executing a will as long as the
testator was acting rationally when he executed the will (see Matter of
Hedges, 100 AD3d 586 [2d Dept 1984]; Matter of Luther, NYLJ, Jan. 24,
2024 at 9, col 3 [Sur Ct, NY County 2024]).
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Significantly, both Sheiowitz and Hillary testified that they went
to The Hebrew Home in the late morning of September 17, 2019 to have the
will executed. After checking in, they went upstairs and Dr. Sulekha, the
decedent's treating physician, greeted them outside the decedent's room,
remarked that "he's lucid" and ushered them inside. The testimony
establishes that the decedent knew that they came to have his will executed,
remained alert during the entire time they were there and read each page of
the instrument prior to signing it. The testimony that they would not have
proceeded had the decedent exhibited lack of testamentary capacity and
their signatures on a self-proving affidavit corroborating the same also
provide the basis upon which to establish a prima facie case for testamentary
capacity (see Matter of McCarthy, 269 AD145 [1 st Dept 1045]; affd 296 NY
987 [1947]; Matter of Peragine, NYLJ Jul. 17, 2023 at 20, col 3 [Sur Ct, NY
County 2023]).
Although the notes of The Hebrew Home staff and several
relatives of the decedent depict the decedent as depressed and disoriented
at various times, Joseph Jr. did not submit any evidence in admissible form
to create an issue of fact as to decedent's lack of testamentary at the time
he executed the will. Based upon the testimony and medical evidence
submitted as noted hereinabove, Christopher has met his burden of
demonstrating that the decedent possessed testamentary capacity when the
propounded instrument was executed.
Undue Influence and Fraud
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To establish undue influence, facts must be sufficiently set forth
to show that the influencing party had a motive to influence, and that such
influence was actually exercised (see Matter of Walther, 6 NY2d 49 [1959];
Matter of Aoki, 99 AD3d 253 [1 st Dept 2012]). Since the actual exercise of
undue influence is difficult to prove, undue influence is proven by
circumstantial evidence, such as: (1) the testator's physical and mental
condition; (2) whether the attorney who drafted the instrument was the
testator's attorney or was associated with the beneficiary; (3) whether the
beneficiary had a direct involvement in the preparation or execution of the
instrument; (4) whether the propounded instrument deviates from the
testator's priordispositive plan; (5)whetherthe person who allegedly wielded
undue influence was in a position of trust; and (6) whether the testator was
isolated from the natural objects of his affection (see Matter of Luther, NYLJ,
Jan. 24, 2024 at 9 col 3 [Sur Ct, NY County 2024]; Matter of Roberts, 34
Misc. 3d 1213 [A], 2011 NY Slip Op 52472 [U] [Sur Ct, NY County 2011]).
"Where there is a confidential relationship between the grantor/testator and a beneficiary in a transaction such that they were dealing on unequal terms due to one party's weakness, dependence or trust justifiably reposed upon the other and unfair advantage is rendered probable, the burden of proof with respect to allegations of undue influence will be shifted to the stronger party to show, by clear and convincing evidence, that no undue influence was used. In determining whether a confidential relationship exists, the existence of a family relationship does not, per se, create a presumption of undue influence: there must be evidence of other facts or circumstances showing inequality or controlling influence. The existence of such a relationship will ordinarily be a question of fact (see Matter of Rozof, 219 AD3d 1428 [2 nd Dept. 2023]; Matter of Neumann, 210 AD3d 492 [1 st Dept. 2022]; Matter of
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Nealon, 104 AD3d 1088 [3 rd Dept 2013], affd 22 NY3d 1045 [2014])."
Notably, the evidence suggests that the decedent's relatives
and friends are split into Christopher and Joseph Jr. "camps." Christopher,
Irene and Alexander opine that the decedent was resolute about disinheriting
Joseph Jr. because of felony convictions, paying over $100,000 for his legal
defense and the litigation concerning the Rockland County Realty. They also
allege that Joseph Jr. was estranged from the decedent for over 10 years
and during most of his final illness. They depict Joseph Jr. only as a liability,
and that the decedent had essentially given up on him.
In contrast, Joseph Jr., the former spouse, the two nieces and
employees at the bread route maintain that the decedent had a loving
relationship with Joseph Jr., who they maintain financially salvaged the bread
route for the decedent and also actively worked the route during the
decedent's incapacities. The former spouse also refutes the claims that the
decedent was estranged from Joseph Jr. and paid his significant legal costs,
since it was she who paid most of Joseph Jr.'s legal bills and took out a
mortgage on her home to do so. The former spouse also alleges that the
decedent went with her many times to visit Joseph Jr. after he was
incarcerated and expressed love for him during the visits. The decedent's
brother Michael Bux, the two nieces and the nephew also aver that it was
Joseph Jr. who helped out the decedent and the decedent's mother, and the
decedent continued to express love for Joseph Jr. This belies the testimony
[* 21] 22 of Christopher and the other brother Alexander, that Joseph Jr. neglected the
decedent and the decedent's mother at the end of their lives.
Sheiowitz' testimony establishes that he was retained directly
by the decedent and Christopher did not participate in the will planning.
Although a power of attorney was executed along with the will there is no
showing that it was actually exercised. These facts standing alone would not
support an inference that Christopher had a confidential relationship with the
decedent. Moreover, evidence that the decedent exercised some control
over his financial affairs is not dispositive whether his actions were taken free
of improper influence and manipulation (see Matter of Kotsones, 37 NY2d
1154 [2022]; Rollwagen v Rollwagen, 63 NY 504[1876]).
However, the SCPA 1404 testimony and the documents
demonstrate that Christopher was in charge of the decedent's care at The
Hebrew Home during the relevant times and he had a long standing
animosity towards Joseph Jr. dating from childhood. Although Christopher
submits a list of alleged authorized visitors at the Hebrew Home for the week
prior to the date of death, there is no corroboration that these persons were
allowed to visit. Significantly, there is testimony from several of those same
individuals that they were, in fact, prevented from visiting the decedent
during this time period. The consistent testimony of Joseph Jr. as well as that
of the former spouse, friend/caretaker, the two nieces and the decedent's
other brother, Michael Bux, that the decedent continued to express love for
Joseph Jr. and that they were excluded from The Hebrew Home by
[* 22] 23
Christopher beginning several weeks prior to the date of execution and
continuing until his death, create triable issues of fact as to whether
Christopher controlled access to the decedent at the end of his life in order
to be designated sole testamentary beneficiary.
On this state of the record, Joseph Jr. is entitled to have the
jury consider his objections concerning undue influence and the evidence
regarding whether Christopher had a confidential relationship with the
decedent, the decedent's relationship with Joseph Jr., whether Christopher
utilized undue influence and, if so, did the decedent exercise free will when
executing the testamentary instrument (see Matter of Walther, 6 NY2d at 49;
Matter of Nealon, 104 AD3d 1088 [3 rd Dept 2013]; Matter of Williams, 172
AD3d 514 [1 st Dept 2019]). The court and jury should also be afforded the
opportunity to see and hear the witnesses and consider their demeanor in
order to assess their credibility (see Matter of Kosones, 37 NY at 1154 ).
At this time, there is no overt showing on the submissions of
fraud and duress. However, given the statements of Christopher, Alexander
and Irene, juxtaposed with the allegations of lack of contact and access by
Joseph Jr., the former spouse, caretaker, nieces and nephews, there exist
issues of fact concerning whether fraud was employed by Christopher upon
the decedent given his end of life physical and mental condition concerning
his relationships with Joseph Jr. and other family members warranting
determination by a jury.
CONCLUSION
[* 23] 24
On this state of the record, for the reasons
stated hereinabove, this decision constitutes the order of the
court granting summary judgment in favor of Christopher dismissing Joseph
Jr.'s objections as follows: Objection No. 1 as to lack of testamentary
capacity; Objection No. 2 as to lack of due execution, and that branch of
Objection No. 3 alleging duress and mistaken understanding as to the import
of the terms of the will. Summary judgment seeking to dismiss the remaining
branches of Objection No. 3 sounding in fraud and undue influence is
denied, as is Objection No. 4 with respect to an alleged confidential
relationship.
The matter shall appear on the court's pre-trial calendar
on January 21, 2025 at 9:30a.m. The parties and Christopher's attorney
shall appear and be prepared to discuss the issues to be presented, the
witnesses expected to testify, documents to be admitted into evidence and
the filing of the note of issue, certificate of readiness and statement of the
issues (see Uniform Rules for Surrogate's Court [22 NYCRR] §§ 207.29 and
207.30).
The Chief Clerk shall mail a copy of this decision and order to
counsel for Christopher and to Joseph Bux Jr.
?M&~v&:~ SURROGATE
[* 24]