Matter of Luther 2024 NY Slip Op 30277(U) January 19, 2024 Surrogate's Court, New York County Docket Number: File No. 2016-4353 Judge: Hilary Gingold 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. New York County Surrogate's Court DATA ENTRY DEPT.
SURROGATE'S COURT OF THE STATE OF NEW YORK JAN 1 9 2024 COUNTY OF NEW YORK --------------------------------------------------------------------------x Probate Proceeding, Will of
ELIZABETH LUTHER, DECISION AND ORDER
File No. 2016-4353 Deceased. --------------------------------------------------------------------------x GINGOLD,S.
The following papers were read in determining this motion:
Papers Numbered
Notice of Motion dated November 16, 2018 -Affirmation oflan W. MacLean dated November 16, 2018- Memorandum of Law in Support - Affidavit of William Weaver sworn to June 19, 2018 - Affidavit of Yalud Andrisani sworn to June 14, 2018 -Affidavit of Inez Reksten sworn to June 18, 2018 -Affidavit of Richard G. Schulze sworn to June 14, 2018 -Affirmation of Corinne M. Avanzino dated November 16, 2018 with Exhibits 1-11 - Affirmation of Corinne M. A vanzino dated November 16, 2018 with Exhibits 1-4 1-9
Affirmation of Michael L. Kenny Jr. dated January 10, 2091 with Exhibits A-P - Objectant's Memorandum of Law in Opposition -Affidavit of Elizabeth Weaver sworn to January 10, 2019 - Affidavit of Carla Daichman sworn to January 9, 2019 with Exhibits A-B 10-14
Affidavit of Richard G. Schulze sworn to February 25, 2019- Affidavit of Curtis Peter Junker sworn to February 25, 2019- Affidavit of James Donahue sworn to February 14, 2019 -Reply Affirmation of Steven Guerra dated February 27, 2019 -Affidavit of Michael B. Elefante sworn to February 27, 2019 15-20
In this contested probate proceeding in the estate of Elizabeth Luther, proponent Richard
G. Schulze (Schulze), moves for summary judgment pursuant to CPLR 3212, seeking dismissal of
[* 1] the objections of decedent's daughter, Elizabeth Weaver (Weaver). 1 The objections allege that
decedent lacked capacity, that the instrument was not duly executed and was the product of fraud
and undue influence perpetrated by Schulze.
Background
Decedent died on October 31, 2016, at the age of 82, survived by Weaver, her only child.
Under the propounded instrument, dated September 30, 2013, decedent left her entire estate, with
the exception of one item of personality (a silver tea set bequeathed to Weaver) to Old Sturbridge
Village (OSV), a non-profit organization located in Sturbridge, Massachusetts. In the propounded
instrument, decedent also exercised her power of appointment under three family trusts (Family
Trusts) in favor of OSV, thereby leaving the remainder of the substantial trust assets after her death
to OSV. Decedent nominated her brother, Schulze, as her executor, and preliminary letters
testamentary issued to him on December 6, 2016.
At the time the propounded instrument was executed, decedent was 79 years old and living
independently in a rent-controlled apartment on the Upper East Side of Manhattan, where she had
lived for 40 years. On March 28, 2013, six months before the propounded instrument was executed,
decedent was hospitalized at Gracie Square Hospital after suffering a mental health crisis at her
apartment. After approximately two weeks, she was transferred to Mary Manning Walsh Nursing
Home for rehabilitation. She was discharged home on April 23, 2013.
On August 9, 2013, decedent called Carlos J. Bianchi, Esq. (Bianchi), the draftsperson of
the instrument, whom she had met in 1993 and with whom she consulted with occasionally over
the years about her textile business. During this phone call, decedent told Bianchi that she and her
brother wanted to meet with him to discuss her will and other documents. According to Bianchi's
Objectant Elizabeth Weaver died during the pendency of this motion and Kimberly Dillon, as administrator of her estate, was substituted in this proceeding by stipulation and order dated December 7, 2023.
[* 2] deposition testimony and contemporaneous notes, decedent specifically told Bianchi during this
call that her daughter should be left out of her will. A few days later, on August 13, 2013, decedent
and Schulze met with Bianchi at his office and decedent executed a springing power of attorney
and durable health care proxy appointing Schulze as decedent's agent on both documents.
On September 19, 2013, less than two weeks before the execution of the propounded
instrument, Schulze emailed Bianchi to inform him that decedent could not locate her prior will
and that she would in fact need a will drafted. In the email, Schulze writes that decedent would
like him to be her executor and that she wishes to leave her estate to OSV. Schulze notes in the
email that, since he is chairman of the board at OSV, he must remain at "arms-length on the
discussion of [decedent's] will."
Thereafter, on September 26, 2013, decedent met with Bianchi at his office to discuss the
preparation of her will. Schulze was not present. Bianchi testified that at this meeting he confirmed
with decedent that she did not want to leave any of her assets to her daughter, other than the tea
set, and that she wanted leave her estate to OSV. At this meeting, Bianchi did not ask decedent
about her affiliation with OSV or why she chose such a charity. In addition, he did not ask her
about her assets or her family history.
Four days later, on September 30, 2013, decedent went to Bianchi's office to execute the
propounded instrument. Schulze was not present at this meeting. Bianchi discussed the substantive
provisions of the instrument with decedent, confirming that she wished to leave her entire estate
to OSV (except for the silver tea set) and to exercise her power of appointment over the Family
Trusts in favor of OSV. Decedent signed the instrument in front of three witnesses, employees of
Bianchi's law firm, each of whom signed an attestation clause and a self-proving affidavit (SCPA
§ 1406).
[* 3] Discussion
It is well-established that "[t]he proponent of a summary judgment motion must make a
prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence
to eliminate any material issues of fact from the case" (Pullman v Silverman, 28 NY3d I 060, I 062
[2016]). The burden then shifts to the motion's opponent "to present evidentiary facts in admissible
form sufficient to raise a genuine, triable issue of fact" (Sumitomo Mitsui Banking Corp. v Credit
Suisse, 89 AD3d 561,563 [1st Dept 2011], citing Zuckerman v City of New York, 49 NY2d 557,
562 [1980]). If there is any doubt as to the existence of a triable issue of fact, the motion for
summary judgment must be denied (0 'Brien v Port Auth. ofN Y. and NJ, 29 NY3d 27, 37 [2017],
citing Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957]).
Testamentary Capacity
As the movant, Schulze must make a prima facie showing of testamentary capacity, which
is measured by whether the testator: (1) understood the nature and consequences of executing a
will; (2) knew the nature and extent of his or her property being disposed of; and (3) knew the
Free access — add to your briefcase to read the full text and ask questions with AI
Matter of Luther 2024 NY Slip Op 30277(U) January 19, 2024 Surrogate's Court, New York County Docket Number: File No. 2016-4353 Judge: Hilary Gingold 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. New York County Surrogate's Court DATA ENTRY DEPT.
SURROGATE'S COURT OF THE STATE OF NEW YORK JAN 1 9 2024 COUNTY OF NEW YORK --------------------------------------------------------------------------x Probate Proceeding, Will of
ELIZABETH LUTHER, DECISION AND ORDER
File No. 2016-4353 Deceased. --------------------------------------------------------------------------x GINGOLD,S.
The following papers were read in determining this motion:
Papers Numbered
Notice of Motion dated November 16, 2018 -Affirmation oflan W. MacLean dated November 16, 2018- Memorandum of Law in Support - Affidavit of William Weaver sworn to June 19, 2018 - Affidavit of Yalud Andrisani sworn to June 14, 2018 -Affidavit of Inez Reksten sworn to June 18, 2018 -Affidavit of Richard G. Schulze sworn to June 14, 2018 -Affirmation of Corinne M. Avanzino dated November 16, 2018 with Exhibits 1-11 - Affirmation of Corinne M. A vanzino dated November 16, 2018 with Exhibits 1-4 1-9
Affirmation of Michael L. Kenny Jr. dated January 10, 2091 with Exhibits A-P - Objectant's Memorandum of Law in Opposition -Affidavit of Elizabeth Weaver sworn to January 10, 2019 - Affidavit of Carla Daichman sworn to January 9, 2019 with Exhibits A-B 10-14
Affidavit of Richard G. Schulze sworn to February 25, 2019- Affidavit of Curtis Peter Junker sworn to February 25, 2019- Affidavit of James Donahue sworn to February 14, 2019 -Reply Affirmation of Steven Guerra dated February 27, 2019 -Affidavit of Michael B. Elefante sworn to February 27, 2019 15-20
In this contested probate proceeding in the estate of Elizabeth Luther, proponent Richard
G. Schulze (Schulze), moves for summary judgment pursuant to CPLR 3212, seeking dismissal of
[* 1] the objections of decedent's daughter, Elizabeth Weaver (Weaver). 1 The objections allege that
decedent lacked capacity, that the instrument was not duly executed and was the product of fraud
and undue influence perpetrated by Schulze.
Background
Decedent died on October 31, 2016, at the age of 82, survived by Weaver, her only child.
Under the propounded instrument, dated September 30, 2013, decedent left her entire estate, with
the exception of one item of personality (a silver tea set bequeathed to Weaver) to Old Sturbridge
Village (OSV), a non-profit organization located in Sturbridge, Massachusetts. In the propounded
instrument, decedent also exercised her power of appointment under three family trusts (Family
Trusts) in favor of OSV, thereby leaving the remainder of the substantial trust assets after her death
to OSV. Decedent nominated her brother, Schulze, as her executor, and preliminary letters
testamentary issued to him on December 6, 2016.
At the time the propounded instrument was executed, decedent was 79 years old and living
independently in a rent-controlled apartment on the Upper East Side of Manhattan, where she had
lived for 40 years. On March 28, 2013, six months before the propounded instrument was executed,
decedent was hospitalized at Gracie Square Hospital after suffering a mental health crisis at her
apartment. After approximately two weeks, she was transferred to Mary Manning Walsh Nursing
Home for rehabilitation. She was discharged home on April 23, 2013.
On August 9, 2013, decedent called Carlos J. Bianchi, Esq. (Bianchi), the draftsperson of
the instrument, whom she had met in 1993 and with whom she consulted with occasionally over
the years about her textile business. During this phone call, decedent told Bianchi that she and her
brother wanted to meet with him to discuss her will and other documents. According to Bianchi's
Objectant Elizabeth Weaver died during the pendency of this motion and Kimberly Dillon, as administrator of her estate, was substituted in this proceeding by stipulation and order dated December 7, 2023.
[* 2] deposition testimony and contemporaneous notes, decedent specifically told Bianchi during this
call that her daughter should be left out of her will. A few days later, on August 13, 2013, decedent
and Schulze met with Bianchi at his office and decedent executed a springing power of attorney
and durable health care proxy appointing Schulze as decedent's agent on both documents.
On September 19, 2013, less than two weeks before the execution of the propounded
instrument, Schulze emailed Bianchi to inform him that decedent could not locate her prior will
and that she would in fact need a will drafted. In the email, Schulze writes that decedent would
like him to be her executor and that she wishes to leave her estate to OSV. Schulze notes in the
email that, since he is chairman of the board at OSV, he must remain at "arms-length on the
discussion of [decedent's] will."
Thereafter, on September 26, 2013, decedent met with Bianchi at his office to discuss the
preparation of her will. Schulze was not present. Bianchi testified that at this meeting he confirmed
with decedent that she did not want to leave any of her assets to her daughter, other than the tea
set, and that she wanted leave her estate to OSV. At this meeting, Bianchi did not ask decedent
about her affiliation with OSV or why she chose such a charity. In addition, he did not ask her
about her assets or her family history.
Four days later, on September 30, 2013, decedent went to Bianchi's office to execute the
propounded instrument. Schulze was not present at this meeting. Bianchi discussed the substantive
provisions of the instrument with decedent, confirming that she wished to leave her entire estate
to OSV (except for the silver tea set) and to exercise her power of appointment over the Family
Trusts in favor of OSV. Decedent signed the instrument in front of three witnesses, employees of
Bianchi's law firm, each of whom signed an attestation clause and a self-proving affidavit (SCPA
§ 1406).
[* 3] Discussion
It is well-established that "[t]he proponent of a summary judgment motion must make a
prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence
to eliminate any material issues of fact from the case" (Pullman v Silverman, 28 NY3d I 060, I 062
[2016]). The burden then shifts to the motion's opponent "to present evidentiary facts in admissible
form sufficient to raise a genuine, triable issue of fact" (Sumitomo Mitsui Banking Corp. v Credit
Suisse, 89 AD3d 561,563 [1st Dept 2011], citing Zuckerman v City of New York, 49 NY2d 557,
562 [1980]). If there is any doubt as to the existence of a triable issue of fact, the motion for
summary judgment must be denied (0 'Brien v Port Auth. ofN Y. and NJ, 29 NY3d 27, 37 [2017],
citing Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957]).
Testamentary Capacity
As the movant, Schulze must make a prima facie showing of testamentary capacity, which
is measured by whether the testator: (1) understood the nature and consequences of executing a
will; (2) knew the nature and extent of his or her property being disposed of; and (3) knew the
natural objects of his or her bounty (Matter of Kumstar, 66 NY2d 691 [1985]). Here, the affidavits
of the witnesses to the propounded instrument, attesting to decedent's sound mind, memory, and
understanding, create a presumption of testamentary capacity sufficient to meet proponent's prima
facie burden on summary judgment (Matter of Neuman, 210 AD3d 492,493 [1st Dept 2022]). As
further proof, the deposition testimony of Bianchi and the attesting witnesses all support a finding
of capacity. In addition, the affidavits of decedent's grandson and two personal assistants
demonstrate that decedent was aware of her assets and regularly reviewed bank statements from
her accounts and trusts.
[* 4] In opposition, Weaver cites to the medical records from decedent's stay at the nursing home
six months before the execution of the propounded instrument, as well as an affidavit from
decedent's therapist who treated her at that time, indicating that decedent had problems with her
memory, cognition and mood. However, Weaver offers no proof of decedent's mental or physical
impairment at the time of the execution of the propounded instrument.
Although the medical records indicate that decedent was initially confused and disoriented
upon her admission to the nursing home, her cognitive facilities and mood quickly improved and
she was released about a week later to her home, where she continued to live independently (Matter
ofSchlaeger, 74 AD3d 405,406 [1st Dept 2010] [no triable issue of fact bearing on capacity raised
by medical records showing that while decedent was terminally ill and initially confused and
disoriented upon admission to hospital, his cognitive facilities quickly improved]). Moreover, even
if decedent's health was in decline, "old age, physical weakness [or even] senile dementia" does
not disqualify an individual from executing a will as long as the testator was acting rationally when
she executed the will (Matter of Hedges, 100 AD2d 586, 588 [2d Dept 1984]; see also Matter of
Llewellyn, NYLJ, January 5, 2019, at 19 [Sur Ct, NY County] [dismissing capacity objection even
where Article 81 guardian appointed for decedent], aff'd 135 AD3d 499 [1st Dept 2016]). Here,
all of the contemporaneous evidence at the time the instrument was executed reflects that decedent
was capable of making a will (Schlaeger, 74 AD3d at 406 [dismissing lack of testamentary
capacity where decedent was lucid on the days before and on the date he made the will]).
Weaver also argues that decedent lacked understanding of the nature and extent of her
assets and that she did not know the objects of her bounty. In support, Weaver, points to the
deposition testimony of Bianchi, who states that he did not ask decedent about her assets or about
her family history prior to the instrument's execution. However, a testator need not have "precise
s
[* 5] knowledge" of her assets but rather an "awareness of ... the general nature and extent of one's
real and personal property" (Matter of Fish, 134 AD2d 44, 46 [3d Dept 1987]). Here, Weaver has
not submitted any evidence to show that decedent lacked such knowledge and thus has failed to
rebut the showing of testamentary capacity. Accordingly, this objection is dismissed.
Due Execution
Proponent has the burden of showing that the propounded instrument was duly executed in
accordance with the statutory requirements (EPTL 3-2.1; Matter of Falk, 47 AD3d 21, 26 [1st
Dept 2007]). Here, Schulze has met this burden by demonstrating that the instrument's execution
was supervised by an attorney and is supported by a signed attestation clause and self-proving
affidavits (Matter of Halpern, 76 AD3d 429, 431 [1st Dept 2010], aff'd 16 NY3d 777 [2011];
Matter ofCollins, 60 NY2d 466,471 [1983]). The attestation clause serves as prima facie evidence
that the instrument was duly executed (Matter ofCollins, 60 NY2d at 471). In view of proponent's
prima facie case as to due execution, objectant can avoid summary dismissal of her objection only
if she presents evidence raising a question of material fact as to the bona tides of the will execution.
Apart from her claim that decedent lacked capacity, which this court has rejected, Weaver's motion
papers are devoid of any evidence as to the invalidity of the execution of the instrument.
Accordingly, the objection as to lack of due execution is dismissed.
Undue Influence
As the movant, Schulze has the burden of showing that the propounded instrument was the
product of decedent's wishes (Matter ofLlewellyn, 135 AD3d 499,500 [1st Dept 2016]; Matter of
Rozo/, 219 AD3d 1428, 1429 [2d Dept 2023]; Matter of MacGuigan, NYLJ, April 20, 2015 at 21,
col 4 [Sur Ct, NY County], aff'd 140 AD3d 625 [1st Dept 2016]). Once this burden is met,
objectant must establish evidence of undue influence by showing not only motive and opportunity,
[* 6] but also the actual exercise of influence so great it amounts to "moral coercion, which restrain[s]
independent action and destroy[s] free agency ... [and which the testator is] unable to refuse or
too weak to resist (Matter of Walther, 6 NY2d 49, 53 [1959]; Matter ofAoki, 99 AD3d 253,265
[1st Dept 2012]). Since the actual exercise of such influence is difficult to prove, undue influence
is usually 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 any direct involvement in the
preparation or execution of the instrument; (4) whether the propounded instrument deviates from
the testator's prior dispositive plan; (5) whether the 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 (Matter ofRoberts, 34 Misc.3d 1213[A], *8 [Sur Ct, NY County 2011]). While objectant
may prove undue influence by circumstantial rather than direct evidence, such evidence must be
substantial in nature and conclusory assertions will not suffice (Matter ofAoki, 99 AD3d at 265).
Here, Schulze has met his initial burden by submitting a copy of the instrument together
with the self-proving affidavits and the testimony of the attesting witnesses, which prove that
decedent understood the terms of the will, that the instrument reflected decedent's wishes and that
it was not executed under restraint (Matter of Korn, 25 AD3d 379, 379 [1st Dept 2006] [self-
executing affidavit and testimony of attesting witness and drafting attorney were sufficient to meet
proponent's prima facie burden that decedent was free of undue influence]).
In opposition, Weaver asserts that Schulze pressured decedent to make a will while also
influencing her decision to insert OSV as the primary beneficiary. Schulze, as chairman of the
board of OSV, had the motive to influence decedent's choice of OSV as a beneficiary (Matter of
Schwartzman, NYLJ, March 27, 2000, at 34, col. 4 [Sur Ct, Westchester County] [proof of
[* 7] financial gain is not a requirement of undue influence]). There is also evidence to show Schulze
had the opportunity to influence decedent's decisions. Decedent's medical records from the
rehabilitation center and Schulze's April 21, 2013 email to decedent's grandsons show that
Schulze was regularly corresponding with decedent and her caregivers at the facility and
overseeing her discharge home by, among other things, hiring his housekeeper to help her with her
bills and daily activities. Bianchi also testified that Schulze reached out to him while decedent was
in the rehabilitation center to ask him to prepare a living will for decedent.
There is also proof that Schulze was involved with the preparation of the instrument and
may have influenced decedent's choice of beneficiary. In a September 19, 2013 email to Bianchi,
Schulze asks him to prepare a will for decedent as soon as possible and also lays out the terms of
the will, including decedent's intent to make Schulze her executor and to leave her estate assets to
OSV. Bianchi testified that he first learned of decedent's intention to leave her estate to OSV from
this email, thus demonstrating that it was Schulze, not decedent, who first informed Bianchi about
decedent's testamentary wishes. A few days later, in an email to Bianchi dated September 26,
2013, Schulze suggested that Bianchi incorporate specific language in the will to support this
bequest by referring to decedent's love of OSV. Bianchi included this language in the instrument,
which states that decedent's choice of OSV as her primary beneficiary is made "out of [her] love"
for the institution. Indeed, Bianchi stated in his deposition that he suspected Schulze of influencing
decedent's choice of beneficiary. Taken together, this evidence is indicative of at least some
significant degree of involvement by Schulze in the preparation of the propounded instrument
(Matter ofNeuman, NYLJ, April 8, 2022 at 19, col 4 [Sur Ct, NY County]; Matter of Roberts, 34
Misc.3d 1213[A], *8 [Sur Ct, NY County 2011]). Under these circumstances, fact issues exist
about whether Schulze, who had a personal interest in OSV as chairman of its board, unduly
[* 8] influenced decedent to disinherit her daughter and leave her estate to OSV, precluding summary
judgment as to this objection.
Fraud
To raise a material issue of fact, objectant must show, by clear and convincing evidence,
that a false statement or promise was made to decedent which caused her to execute a will
disposing of her property differently than she would have in the absence of such misrepresentation
(Matter of Ryan, 34 AD3d 212, 215 [1st Dept 2006]). Proponent makes his prima facie case for
summary judgment by demonstrating that there was an absence of any fraudulent statement or
misrepresentation by Schulze or anyone else that caused the instrument to be executed. Here,
objectant has failed to plead the elements of her claim with particularity as required by CPLR
3016(b). In addition, in her papers in opposition to proponent's motion, objectant failed to address
the fraud objection. Therefore, this objection is deemed abandoned and is dismissed.
Finally, movant's request for objectant to pay his legal fees is denied as the objections are
not frivolous and were not made in bad faith (SCPA 2302[3][a]).
Accordingly, it is
ORDERED that the motion for summary judgment is granted with respect to the objections
based on lack of testamentary capacity, lack of due execution and fraud, and these objections are
dismissed; and it is further
ORDERED that the motion for summary judgment is denied with respect to the objection
of undue influence; and it is further
ORDERED that the request for legal fees is denied; and it is further
[* 9] ORDERED that the parties shall appear for a pre-trial conference on March 11, 2024 at
11:00 am in person in courtroom 509 at 31 Chambers, New York, New York 10007; and it is
further
ORDERED that all attending counsel must have the authority to settle the matter and be
able to contact their clients during the conference.
,c;l~ Dated: January~' 2024
To:
Ian Mac Lean, Esq. The MacLean Law Firm, PC 235 Main Street, Suite 630 White Plains, New York 10601 (212) 682-1555 ianwmaclean@mlfpc.com Attorney for Petitioner Richard G. Schulze
Michael L. Kenny Jr., Esq. Wiggin and Dana LLP 437 Madison Avenue, 35 th Floor New York, New York 10022 (212) 551-2628 mkenny@wiggin.com Attorney for Objectant Kimberley Dillon, as the administrator of the Estate of Elizabeth Weaver
David G. Samuels, Esq. Perlman & Perlman, LLP 521 Fifth A venue, 30 th Floor New York, New York 10175 (212) 889-0575 david@perlmanandperlman.com Attorney for Respondent Old Sturbridge, Inc.
Deborah Y. McCarthy, Esq. Assistant Attorney General, Charities Bureau
[* 10] Office of the Attorney General of the State ofNew York 28 Liberty Street, 19th Floor New York, New York 10005 (212) 416-8397 Deborah.Mccarthy@ag.ny.gov Attorney for Respondent State of New York
[* 11]