Matter of Jacobs

2012 NY Slip Op 33995(U)

• Court: Surrogate's Court, New York County
• Decided: November 27, 2012
• Docket: File No. 2008-1387
• Status: Unpublished

Opinion

Matter of Jacobs 2012 NY Slip Op 33995(U) November 27, 2012 Surrogate's Court, New York County Docket Number: File No. 2008-1387 Judge: Kristin Booth Glen 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: NEW YORK COUNTY ------------------------------------------------------------------x In the Matter of the Estate of

HERBERT JACOBS, File No. 2008-1387 Deceased.

-------------------------------------------------------------------x

GLEN, S.

This is a proceeding for probate in the estate of Herbert Jacobs. Decedent died on March

30, 2008, at the age of 92, leaving an estate of approximately $400,000. He was survived by his

nephew Ralph, objectant herein, and his niece Sylvia who are the children of his pre-deceased ' sister. Decedent also had two brothers, Leo and Irwin, whose whereabouts are unknown. A

GAL was appointed to represent the brothers' interests and takes no position on this motion.

Under the proffered instrument, dated April 15, 2004, decedent bequeaths his entire estate, in

various shares, to eight friends, including Joseph Gnesin and Morris Jacobs, the post-deceased

co-preliminary executor. 1 To Sylvia, decedent left $25; nothing was left to Ralph.

The objections filed by Ralph in this proceeding allege lack of due execution, lack of

testamentary capacity, undue influence, and fraud.

FACTS

The record reflects that decedent, who never married, worked at the State Insurance Fund

for more than 50 years, from 1946 to 1998. In August, 1998, he was hospitalized due to heart

Decedent's will provides that, if either of the co-executors fails to qualify or having qualified ceases to act, the remaining executor shall serve as the sole executor. Consequently, the instant motion has been filed by Gnesin only.

[* 1] problems, and on August 16, 1998, while at NYU Medical Center, he suffered a stroke.

Immediately after his stroke, decedent's niece Sylvia began assisting him in the management of

his financial affairs. Toward that end, Sylvia's son, Lance Kramer, Esq. (Ralph's counsel in this

proceeding), prepared a Power of Attorney. On September 17, 1998, decedent was transferred to

the NYU Rusk Institute of Rehabilitation Medicine. In February, 1999, decedent returned home

assisted by a full-time caretaker and continued to receive physical therapy. Several months into

decedent's recovery, decedent learned that Sylvia had used the Power of Attorney to transfer

more than $300,000 in cash and securities to her own account and filed a Retirement Option

Election Form with the NYS and Local Retirement System in which she selected an option that

provided decedent with a reduced payment during his lifetime and a larger death benefit to her as

decedent's beneficiary.

In May, 1999, Decedent received his first retirement check from the State, accompanied

by a letter informing him that his retirement benefits had been calculated in accordance with the

joint allowance-half option provision selected on his October 20, 1998 retirement application.

Shortly thereafter, decedent retained attorney Alan Fell. On decedent's behalf, Fell wrote a letter

to the State requesting a change in the option election, which was denied. Fell filed an appeal.

Fell's request for a hearing and redetermination was granted and on February 5, 2004, the agency

issued a decision reversing the election.

In 1999, decedent also commenced an action in Supreme Court, New York County,

against Sylvia, her husband Harold, and their son Lance to recover the misappropriated assets.

The transcript from those proceedings reflects that Sylvia and Lance agreed to return $275,000 to

• decedent and to execute an agreement waiving any right to object to decedent's will upon his

[* 2] death.

At his SCPA §1404 deposition Fell testified that, following the action taken by Sylvia

and her family, decedent wanted to change his October 8, 1968 will which named Sylvia as

executor and sole beneficiary. The first will decedent signed after Fell began representing him

was executed on July 23, 2001, and nominated "Gneisen"[sic] and Morris, as co-executors; each

was also a legatee of 1/3 of the residuary estate, with the remaining 1/3 bequeathed to decedent's

caretaker, Esther Jacob. Sylvia was bequeathed the sum of $25. In that will, decedent made "no

other provision for Sylvia or any other member of her family for reasons best known to Sylvia

and me."

In his Affidavit in support, Fell avers that, although decedent's assets remained the same,

in early 2002 decedent fired Esther Jacob and sought to remove her as a beneficiary of his estate.

Consequently, in a will dated February 28, 2002, decedent again nominated "Gneisen" and

Morris as co-executors, but in this will, he bequeathed his entire residuary estate, in equal shares,

to two charities. Sylvia was once again bequeathed the sum of $25.

By April 15, 2004, when the will here offered for probate was signed, decedent had

received a lump sum payment of $175,000 from the State Insurance Fund as well as the return of

$275,000 from Sylvia and her family. According to Fell, decedent determined to execute a new

will because of receipt of these assets. Based on conversations that he had with decedent and

with decedent's friends, some of whom worked with decedent for over fifty years at the NYS

Insurance Fund, Fell also notes that decedent had not had a relationship with Ralph for many

years prior to his stroke.

[* 3] SUMMARY JUDGMENT

On a summary judgment motion, the movant must make a "prima facie showing of

entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the

absence of any material issues of fact "(Alvarez v Prospect Hosp., 68 NY2d 320,324 [1986]).

Once the movant has made a prima facie case, the burden shifts to the opposing party to provide

proof establishing that there are material questions of fact that require a trial (Zuckerman v City

ofNew York, 49 NY2d 557 [1980]). In determining whether such factual issues exist, the court

must view the evidence in a light most favorable to the non-moving party (see Council o/City of

New York v Bloomberg, 6 NY3d 380, 401 [2006]).

CAPACITY

While the proponent has the burden of proof on this objection, the self-proving affidavits

of the two witnesses raise a presumption of capacity (Matter ofSchlaeger, 74 AD3d 405, 406

[1st Dept 2010]). In addition, the attorney drafter's affidavit swears to decedent's testamentary

capacity based on his knowledge of decedent through their long attorney-client relationship. At

his SCPA § 1404 examination, Fell testified that, although decedent's 1998 stroke affected his

gait and his eyesight, it in no way diminished his capacity to make, understand and execute a

will. In addition, decedent's actions, after the stroke, taken to recover the funds wrongly

transferred from his account, powerfully demonstrate his continuing legal capacity.

Ralph argues that decedent was confused and disoriented at the time he executed the

proffered will, but, to support his contention, he relies solely on the carefully edited testimony of

[* 4] 2 Dr. Govindan Gopinathan, a neurologist, in a March 12, 2003 hearing on the pension election · In

addition to a six-year temporal distance, the medical records on which Dr. Gopinathan relied

indicated that at that time decedent "was taking Levaquin, a very potent antibiotic ... which

causes confusion." There is no indication that decedent was similarly medicated on April 15,

2004; all the evidence as to his condition on that, the only relevant date, is that he had full

capacity. Ralph has not raised a triable issue of fact as to capacity and, accordingly, the motion

for summary judgment is granted as to that objection.

DUE EXECUTION

If an attorney-drafter supervises the execution of a will, there is a presumption of

regularity that the will was properly executed (Matter of Halpern, 76 AD3d 429, 431 [1st Dept

2010]). In addition, a valid attestation clause raises a presumption of the will's validity (Id. at

431 ). Here, proponent satisfies his burden by both the attestation clause and by supervision by an

attorney, here, the drafter Fell. The will was executed in Fell's office and bears the signatures of

three witnesses, Anita Simke, a secretary, Jay H. Rick, an attorney and Fell's law partner, and Fell

himself. Fell' s affidavit in support of the summary judgment motion states that, because of

decedent's visual disability, the entire will was read to him. The two witnesses testified that they

were present when decedent signed his will; Rick recalls that, while Fell read the will aloud to

2 In that hearing, Dr. Gopinathan testified on decedent's behalf that, as Ralph quotes, after decedent's stroke in 1998, in addition to a defect in his visual field, decedent also "from then onward [developed] disorientation and confusion which has been documented on several notes by the physicians in the chart." However, a review of the decision from the administrative hearing dated February 5, 2004, demonstrates that the proffered medical testimony was based on Dr. Gopinathan's review of decedent's medical records from October 14, 1998 [when the application for service retirement was signed] to October 28, 1998 [when the retirement option election form was signed - some six years prior to execution of the will here offered for probate].

[* 5] decedent, the latter would, from time to time, nod and state "that's correct, that's right. That's

what I want."

The only evidence adduced by Ralph in support of this objection is that Shnke testified

that she did not have a copy of the will and so did not read along as Fell read it to decedent. She

was also only "pretty sure" that the witnesses were present when the will was executed. This is

insufficient to raise a triable issue of fact as to due execution and, accordingly, the motion for

summary judgment is also granted as to this objection.

FRAUD On this motion, Ralph has apparently abandoned his allegations of fraud. Summary

judgment dismissing the objections based on those allegations is therefore granted.

UNDUE INFLUENCE "In order to avoid a will, upon the ground of undue influence, it must be shown that the

influence exercised an1ounted to 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 free will and desire, but which he was unable to refuse

or too weak to resist" (Children's Aid Society v Loveridge 70 NY 387, 394 [1877]); see also

Matter of Walther, 6 NY2d 49 [1959]). Ralph must show not only that the person wielding such

an influence had the motive and opportunity to supplant decedent's wishes with his own, but also,

that he or she actually exercised such an influence (see Matter of Fiumara, 4 7 NY2d 845 (1979),

Matter of Walther, 6 NY2d at 49). The evidence here is entirely to the contrary.

Ralph argues, with no evidentiary support, that decedent was frail, mentally incapacitated,

[* 6] and unable to care for himself or his affairs, so that as a result he was dependent on proponent. To

the contrary, Fell's 1404 testimony was that he had represented decedent since 2000, and that,

although his stroke affected his eyesight and his gait, it did not diminish his intelligence, his wit or

his capacity. After his stroke, upon learning of Sylvia's actions, he retained counsel to protect his

interests and to recover the assets she and her family had wrongfully taken. During the period of

Fell's representation he was aware that decedent had twice traveled to the Caribbean with friends.

There is absolutely nothing in the record to support Ralph's claim of frailty, incapacitation and

inability to care for himself.

Similarly absent is any evidence that, as Ralph claims, proponent controlled decedent's

finances.

According to his (affidavit) Gnesin first met decedent in 1973 during the course of

conducting business with decedent's employer. Gnesin testified that decedent executed a durable

power of attorney on February 1, 2007, appointing him, Morris Jacobs, and Vincent Troianiello as

attorneys-in-fact. However, Gnesin also testified that he never transacted any business on

decedent's behalf because decedent handled all of his financial affairs himself. Gnesin further

testified that, from the April of 1999 to decedent's death in 2008, he would visit with decedent

every week to go over decedent's bills, that he would return to his office with the bills so that

someone in his office could prepare invoices and checks, and that he would return the following

week to decedent's apartment with invoices (which he would magnify to make it easy for

decedent to read), and checks for decedent to sign. The uncontroverted testimony is that decedent

was able to comprehend his business and expenses and that he was able to express his wishes as

to what bills needed to be paid and how his assets were to be handled.

[* 7] Gnes in held to establish a Ralph apparently relies upon the powe r of attorney that

undue influence. However, a powe r of confidential relationship whic h woul d ease his burden on

p sufficient to require explanation of a attorney does not itself rise to a confidential relationshi upon and subject to the control of the bequest, absent a show ing that the principal was dependent

, at 34, col 6 [Sur Ct, New York attorney-in-fact (Matter of Whitney, NYL J, July 21, 2009

42-07[1]). County]; 3 Warr en's Heaton, Surro gate's Cour t Pract ice§

sary dependence and control. Here there is a comp lete lack of evidence as to the neces

dential relationship with the requisite Even, however, were Ralph able to demonstrate a confi will, 3 the undue influence objection involvement in the prepa ration and execution of deced ent's

onship exists, and the perso n alleged to would fail. It is well settled that, even when such relati the will (whic h Gnes in did not) and have exerted undue influence secur ed the lawyer who drafts re is a viable inference that conflicts attended the execu tion (whic h Gnes in also did not), ifthe

(e.g. Matter of Walther, 6 NY2 d 49 with the inference of undue influence, the objection fails 4

2012]). Here, there is substantial evidence [1959]; Matter ofAoki, 948 NYS 2d 597,6 03 [1st Dept

reaso n to disinherit Sylvia and her family; that decedent had no relationship with Ralph, and every s of many years, of whom Gnes in was rather, the "natu ral objects of his boun ty" were his friend of undue influence by Gnes in that the only one. Indeed it is noteworthy in rebutting any claim

g Gnes in's testimony that he 3 Ralph attem pts to avoid summ ary judgm ent by discreditin in view ofFe ll's some what did not convey deced ent's testamentary directions to Fell, Fell what decedent wanted, that woul d contradictory testimony. Howe ver, even if Gnes in told r, Gnes in was not prese nt at the not change the result since Fell was deced ent's chose n lawye to him, decedent clearly indicated his execution of the will, and, when the will was read aloud wishes. tion of undu e influence, proo f 4 Because there is seldo m direct evidence of the actual asser nce. is generally based on an inference from circumstantial evide 8

[* 8] propounded will gives him substantially less than an earlier will in which he received a third of

decedent's estate. There is, therefore, a viable, if not compelling, inference not only that

decedent's will was the product of a fully capacitated and thoughtful man, but also that his choice

of his dear friends as his beneficiaries- as he indicated to Fell- was reasonable and appropriate.

On the record submitted here, there is no evidence that decedent's volition was overborne,

or that his testamentary disposition was anything other than a free, unconstrained and appropriate

choice. Accordingly, summary judgment is also granted as to the objection of undue influence.

Probate decree signed.

Dated: November'J..7 , 2012.

SURROGATE

[* 9]