In re the Estate of Brody

Appellate Division of the Supreme Court of New York

In re the Estate of Brody

197 A.D.2d 447, 602 N.Y.S.2d 621, 1993 N.Y. App. Div. LEXIS 9822

CourtAppellate Division of the Supreme Court of the State of New York

DecidedOctober 21, 1993

StatusPublished

Cited by2 cases

This text of 197 A.D.2d 447 (In re the Estate of Brody) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In re the Estate of Brody, 197 A.D.2d 447, 602 N.Y.S.2d 621, 1993 N.Y. App. Div. LEXIS 9822 (N.Y. Ct. App. 1993).

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Opinion

—Order, Surrogate’s Court, New York County (Renee Roth, S.), entered on or about August 17, 1992, which, inter alia, granted objectant’s renewed motion for leave to file late objections to the probate of the propounded instrument, unanimously modified, on the law, the facts and in the exercise of discretion, to the extent of denying such leave, and otherwise affirmed, without costs.

While objectant demonstrated a reasonable excuse for his default in filing timely objections to the propounded instrument, he failed to make a prima facie showing on the issues of lack of testamentary capacity and undue influence. Objectant’s speculation that decedent had been disoriented in her final months was controverted by decedent’s hospital physician during that period. Although petitioner Rosemary Spencer Kaye, who was named as an executor and a substantial beneficiary in the propounded instrument, concededly spent much time with decedent at home in her final months, objectant has not controverted petitioners’ contention that it was natural for Ms. Kaye, a longtime friend, to have been by decedent’s side at that time. Moreover, at the time the propounded instrument was prepared and executed, Ms. Kaye was in Michigan, hundreds of miles away from decedent’s New York apartment, a fact that is itself evidence of an absence of undue influence (see, Poluliah v Fidelity High Income Fund, 102 AD2d 720, 723). Although decedent’s two prior wills did not name Ms. Kaye as a beneficiary, we note [448]*448that she had figured in decedent’s dispositive scheme in some fashion for many years and that the final will includes many additional bequests made in the wake of the death of decedent’s husband.

In view of the foregoing, it is not necessary to address objectant’s motion to have the court recuse itself or petitioners’ cross-motions to disqualify objectant’s counsel and to suppress an affidavit pursuant to CPLR 4507. Concur—Murphy, P. J., Carro, Ross and Asch, JJ.

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—Order, Surrogate’s Court, New York County (Renee Roth, S.), entered on or about August 17, 1992, which, inter alia, granted objectant’s renewed motion for leave to file late objections to the probate of the propounded instrument, unanimously modified, on the law, the facts and in the exercise of discretion, to the extent of denying such leave, and otherwise affirmed, without costs.

While objectant demonstrated a reasonable excuse for his default in filing timely objections to the propounded instrument, he failed to make a prima facie showing on the issues of lack of testamentary capacity and undue influence. Objectant’s speculation that decedent had been disoriented in her final months was controverted by decedent’s hospital physician during that period. Although petitioner Rosemary Spencer Kaye, who was named as an executor and a substantial beneficiary in the propounded instrument, concededly spent much time with decedent at home in her final months, objectant has not controverted petitioners’ contention that it was natural for Ms. Kaye, a longtime friend, to have been by decedent’s side at that time. Moreover, at the time the propounded instrument was prepared and executed, Ms. Kaye was in Michigan, hundreds of miles away from decedent’s New York apartment, a fact that is itself evidence of an absence of undue influence (see, Poluliah v Fidelity High Income Fund, 102 AD2d 720, 723). Although decedent’s two prior wills did not name Ms. Kaye as a beneficiary, we note [448]*448that she had figured in decedent’s dispositive scheme in some fashion for many years and that the final will includes many additional bequests made in the wake of the death of decedent’s husband.

In view of the foregoing, it is not necessary to address objectant’s motion to have the court recuse itself or petitioners’ cross-motions to disqualify objectant’s counsel and to suppress an affidavit pursuant to CPLR 4507. Concur—Murphy, P. J., Carro, Ross and Asch, JJ.

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Bluebook (online)

197 A.D.2d 447, 602 N.Y.S.2d 621, 1993 N.Y. App. Div. LEXIS 9822, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-estate-of-brody-nyappdiv-1993.

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