Matter of Brown

Appellate Division of the Supreme Court of New York

Matter of Brown

2016 NY Slip Op 7993, 144 A.D.3d 587, 42 N.Y.S.3d 23

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

DecidedNovember 29, 2016

Docket2304 2056/10

StatusPublished

This text of 2016 NY Slip Op 7993 (Matter of Brown) 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

Matter of Brown, 2016 NY Slip Op 7993, 144 A.D.3d 587, 42 N.Y.S.3d 23 (N.Y. Ct. App. 2016).

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Opinion

Decree, Surrogate’s Court, New York County (Nora S. Anderson, S.), entered February 23, 2015, which, insofar as appealed from as limited by the briefs, admitted a will dated October 20, 2004 to probate, unanimously affirmed, without costs.

The will bequeaths decedent’s entire estate to nonparty Radio Drama Network, Inc. Thus, the only way objectant can argue that Richard L. Kay (the proponent of the will) tricked decedent is by challenging the October 20, 2004 restatement of the Himan Brown Revocable Trust. However, as the Surrogate noted, objectant lacks standing to contest the 2004 restatement because he had no beneficial interest in any prior version of the trust (see Matter of Ramm v Allen, 118 AD3d 708, 709-710 [2d Dept 2014]). Accordingly, the objections of fraud and undue influence were properly dismissed.

The objections that decedent lacked capacity to make a will and that the will was not duly executed can exist independent of objectant’s challenges to the restatement of the trust. However, this issue is not properly before us on this appeal.

Objectant objects to the uncertified visiting nurse report submitted by proponent. However, this does not create a triable issue of fact as to capacity. Proponent did not rely solely on the report. Rather, he submitted transcripts of depositions of an attesting witness and of people who knew decedent. This type of testimony is acceptable (see Matter of Kumstar, 66 NY2d 691, 692 [1985]; Matter of Fiumara, 47 NY2d 845, 847 [1979]).

We have considered objectant’s remaining arguments and find them unavailing.

Concur—Mazzarelli, J.P., Renwick, Richter, Manzanet-Daniels and Feinman, JJ.

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Decree, Surrogate’s Court, New York County (Nora S. Anderson, S.), entered February 23, 2015, which, insofar as appealed from as limited by the briefs, admitted a will dated October 20, 2004 to probate, unanimously affirmed, without costs.

The will bequeaths decedent’s entire estate to nonparty Radio Drama Network, Inc. Thus, the only way objectant can argue that Richard L. Kay (the proponent of the will) tricked decedent is by challenging the October 20, 2004 restatement of the Himan Brown Revocable Trust. However, as the Surrogate noted, objectant lacks standing to contest the 2004 restatement because he had no beneficial interest in any prior version of the trust (see Matter of Ramm v Allen, 118 AD3d 708, 709-710 [2d Dept 2014]). Accordingly, the objections of fraud and undue influence were properly dismissed.

The objections that decedent lacked capacity to make a will and that the will was not duly executed can exist independent of objectant’s challenges to the restatement of the trust. However, this issue is not properly before us on this appeal.

Objectant objects to the uncertified visiting nurse report submitted by proponent. However, this does not create a triable issue of fact as to capacity. Proponent did not rely solely on the report. Rather, he submitted transcripts of depositions of an attesting witness and of people who knew decedent. This type of testimony is acceptable (see Matter of Kumstar, 66 NY2d 691, 692 [1985]; Matter of Fiumara, 47 NY2d 845, 847 [1979]).

We have considered objectant’s remaining arguments and find them unavailing.

Concur—Mazzarelli, J.P., Renwick, Richter, Manzanet-Daniels and Feinman, JJ.

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Bluebook (online)

2016 NY Slip Op 7993, 144 A.D.3d 587, 42 N.Y.S.3d 23, Counsel Stack Legal Research, https://law.counselstack.com/opinion/matter-of-brown-nyappdiv-2016.

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