State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: October 30, 2014 518715 

518947

________________________________

In the Matter of the Estate of

SUSAN G. VOSILLA, Deceased.

ANTHONY C. BUCCA, as Executor

of the Estate of SUSAN G. MEMORANDUM AND ORDER

VOSILLA, Deceased,

Respondent;

DORIA McGUNNIGLE,

Appellant.

________________________________

Calendar Date: September 12, 2014

Before: Peters, P.J., Stein, Garry, Egan Jr. and Clark, JJ.

__________

Whiteman Osterman & Hanna, LLP, Albany (William S. Nolan of

counsel), for appellant.

David E. Woodin, Catskill, for respondent.

__________

Stein, J.

Appeals (1) from an order of the Surrogate's Court of

Greene County (Bartlett III, S.), entered January 28, 2014,

which, among other things, granted petitioner's motion for

summary judgment dismissing respondent's objections to decedent's

will, and (2) from an order of said court, entered April 23, 2014

in Greene County, which, among other things, denied respondent's

motion to reopen a prior hearing.

On December 21, 2010, Susan G. Vosilla (hereinafter

decedent) executed a last will and testament and supplemental
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needs trust that named petitioner (decedent's friend and

attorney) as executor of the will and trustee of the trust, made

bequests to certain relatives and friends and, as a result of a

history of discord and animosity between decedent and respondent,

her sister, expressly disinherited respondent. Decedent

thereafter died on September 15, 2011, survived by respondent and

several other relatives. Within weeks of decedent's death,

petitioner filed a probate petition and, shortly thereafter,

respondent filed objections thereto, challenging decedent's

testamentary capacity and alleging that she was subject to undue

influence by petitioner. 

Preliminary letters testamentary were issued to petitioner

and an SCPA 1404 proceeding ensued, during which petitioner

testified and procured testimony from Martin Finn, the attorney

who drafted the will, and Julie Morin, Finn's paralegal, both of

whom were witnesses to the execution of the will. Two months

after the close of the SCPA 1404 hearing, petitioner moved for

summary judgment dismissing the objections filed by respondent

and to admit the will to probate. Over respondent's opposition,

Surrogate's Court found that there were no genuine issues of

fact, denied respondent's objections and granted the motion for

summary judgment allowing the will to proceed to probate. 

Respondent subsequently moved to reopen the SCPA 1404 hearing,

alleging newly discovered evidence and improper conduct by

petitioner as an adverse party (see CPLR 5015 [a] [2], [3]). 

Surrogate's Court, among other things, denied the motion, and

respondent now appeals from both the order granting summary

judgment and the order denying her motion to reopen the hearing.

We affirm. "Whether to dismiss a party's objections and

admit the challenged will to probate is a matter committed to the

sound discretion of Surrogate's Court and, absent an abuse of

that discretion, the court's decision will not be disturbed"

(Matter of Stafford, 111 AD3d 1216, 1217 [2013], lv denied 990

NYS2d 161 [2014]; see Matter of Shapiro, 100 AD3d 1242, 1243

[2012]; Matter of Colverd, 52 AD3d 971, 972 [2008]; see generally

Matter of Doody, 79 AD3d 1380, 1381 [2010]). While rare, summary

judgment in a contested probate proceeding is appropriate where a

petitioner establishes a prima facie case for probate and the
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objectant does not raise any factual issues regarding

testamentary capacity, execution of the will, undue influence or

fraud (see Matter of Stafford, 111 AD3d at 1217; Matter of

Colverd, 52 AD3d at 972; Matter of Nofal, 35 AD3d 1132, 1133

[2006]; see also Matter of Cioffi, 117 AD2d 860, 860-861 [1986];

cf. Matter of Paigo, 53 AD3d 836, 838 [2008]). Upon our review

of the record, we find that respondent has raised no such issues

and we, therefore, conclude that Surrogate's Court properly

awarded summary judgment to petitioner.

As to testamentary capacity, petitioner bore the initial

burden of establishing that decedent understood the nature and

consequences of making the will, the nature and extent of her

property, and the natural objects of her bounty (see Matter of

Kumstar, 66 NY2d 691, 692 [1985]; Matter of Prevratil, 121 AD3d

137, 140-141 [2014]; Matter of Walker, 80 AD3d 865, 866 [2011],

lv denied 16 NY3d 711 [2011]; Matter of Ruparshek, 36 AD3d 998,

999 [2007]). Notably, it was only necessary to demonstrate that

decedent had "a general, rather than a precise, knowledge of the

assets in . . . her estate" (Matter of Walker, 80 AD3d at 867). 

Here, petitioner proffered, among other things, the selfproving affidavits of Finn and Morin, each of whom declared that

decedent was "of sound mind, memory and understanding, under no

constraint, duress, fraud or undue influence, and in no respect

incompetent to make a valid [l]ast [w]ill and [t]estament." Such

evidence "constituted prima facie evidence of the facts attested

to and created a presumption of testamentary capacity" (Matter of

Prevratil, 121 AD3d at 141; see Matter of Walker, 80 AD3d at

866). In a separate affidavit, Finn also averred that, at the

time that decedent signed the will, she "was oriented to person,

place, and time, had an understanding of the natural objects of

her bounty and, further, had an awareness of her present assets

and potential future assets." Finn further alleged that decedent

made it clear that she had an acrimonious relationship with

respondent – her only sibling – and did not wish to provide for

respondent in her will; Finn and Morin also testified similarly

at the SCPA 1404 hearing. 
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Petitioner also proffered an affidavit from attorney Robin

Depuy-Shanley, who was the court evaluator in a Mental Hygiene

Law article 81 guardianship proceeding concerning decedent that

had been commenced by petitioner two months prior to the

execution of the will.1 Although Depuy-Shanley prepared a report

in the context of that proceeding in which she concluded that

decedent required assistance with property management, she opined

in her affidavit that, when she met with decedent in October and

November 2010 – a month or two before the execution of the will –

decedent possessed testamentary capacity, as she was well aware

of the substantial assets that she received as a result of her

mother's death and of the natural objects of her bounty. 

In addition, petitioner submitted an affidavit from Janet

Schwarzenegger, the attorney who petitioner initially contacted

in November 2010 to draft decedent's will.2 According to

Schwarzenegger, the first time that she met with decedent,

petitioner was not present and decedent clearly explained how she

wanted her assets to be distributed, including a 17.5% share to

petitioner's wife and a modest bequest to petitioner to help

defray the costs of caring for her pets. Schwarzenegger also

averred that, during all of her subsequent interactions with

decedent, decedent demonstrated a clear understanding of how she

1 Immediately after the death of decedent's mother,

decedent contacted petitioner and asked for his assistance out of

concern that she would be unable to appropriately manage the

substantial assets that she was about to inherit. Based on her

familiarity with guardianship proceedings concerning her mother,

decedent inquired of petitioner whether he would act as her

guardian. Thus, with decedent's approval, petitioner filed a

Mental Hygiene Law article 81 proceeding requesting that he be

appointed guardian over decedent's property. Petitioner later

withdrew the guardianship petition after determining that a trust

was better suited to protect decedent and her assets.

2 Although Schwarzenegger drafted a will, inasmuch as Finn

was preparing the trust document, it was ultimately determined

that Finn would also prepare a coordinated will.
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wished her property to be distributed, and, in particular, was

adamant that she did not want her sister to benefit from her

estate. At no time did Schwarzenegger have reason to question

decedent's testamentary capacity. The foregoing, together with

additional proof proffered by petitioner in support of the

motion, constituted prima facie evidence of decedent's

testamentary capacity (see Matter of Prevratil, 121 AD3d at 141;

Matter of Walker, 80 AD3d at 866), shifting the burden to

respondent to demonstrate a triable issue of fact (see Matter of

Prevratil, 121 AD3d at 141). 

To that end, respondent relied on an attorney's affidavit

and argued that decedent had a history of various medical and

psychological conditions that required treatment. Even assuming

the existence of such conditions, these unsupported allegations

were insufficient to create a question of fact, as "'the

appropriate inquiry is whether the decedent was lucid and

rational' at the time the will was signed" (id., quoting Matter

of Paigo, 53 AD3d at 838).3 We are also unpersuaded by

respondent's contention that the guardianship petition brought by

petitioner is sufficient to raise a question of fact as to

decedent's testamentary capacity. The sole purpose of that

petition – which was subsequently withdrawn – was to seek

appointment of a guardian over decedent's property, as a result

of decedent's own concerns that she did not have the necessary

experience to manage the substantial inheritance that she was

going to receive from her mother and her wish to protect such

assets. Such inexperience and desire to safeguard her

inheritance does not demonstrate that decedent lacked

testamentary capacity. Inasmuch as respondent failed to raise an

issue of fact with respect to decedent's testamentary capacity,

Surrogate's Court properly granted summary judgment dismissing

the objection on that ground (see Matter of Prevratil, 121 AD3d

at 141; Matter of Walker, 80 AD3d at 867; compare Matter of

3 Contrary to respondent's assertion, petitioner was not

required to submit an independent medical report in order to

establish decedent's testamentary capacity (see Matter of Doody,

79 AD3d at 1381). 
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Paigo, 53 AD3d at 839).

Turning to respondent's second objection, the fact that a

decedent was subject to undue influence is established when he or

she "'was actually constrained to act against [his or her] own

free will and desire by identifying the motive, opportunity and

acts allegedly constituting the influence, as well as when and

where such acts occurred'" (Matter of Stafford, 111 AD3d at 1217,

quoting Matter of Colverd, 52 AD3d at 973). Here,

notwithstanding the confidential relationship between decedent

and petitioner (see Matter of Henderson, 80 NY2d 388, 392-393

[1992]; see also Matter of Graeve, 113 AD3d 983, 984 [2014]), the

record is bereft of any direct or circumstantial evidence

indicating that petitioner exercised undue influence over

decedent (see Matter of Prevratil, 121 AD3d at 143). "On the

contrary, [the evidence] indicate[s] that the will was the

product of the free and unfettered act of [decedent]" (Matter of

Walther, 6 NY2d 49, 54 [1959] [citation omitted]).

Our review of the record reveals that decedent had known

petitioner for many years, as he had performed legal work for her

father and had previously provided pro bono legal assistance to

her in various criminal actions involving her relatives. After

the death of her mother, decedent and her friend approached

petitioner and asked for his assistance because she did not know

how to manage her finances. Petitioner and decedent discussed,

among other things, her need for a will and she told petitioner

that she had decided on her beneficiaries, one of whom was

petitioner. Petitioner advised decedent that it would be a

problem for him to be a beneficiary given his position as her

attorney and, when decedent could not be dissuaded from her plan,

petitioner ultimately told decedent that she would need a new

attorney to draft the will. As a result, decedent met with

Schwarzenegger during the pendency of the guardianship

proceeding, who then drafted a will based upon decedent's

directives.

Decedent was present in court during the guardianship

proceeding and spoke favorably about petitioner, proclaimed her

trust for him and stated that she wanted him to be her guardian. 
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Depuy-Shanley affirmed that, based upon her observations, it was

evident that there "was a genuine fondness" between decedent and

petitioner and that petitioner "would act in such a way and

manner so as to protect [decedent]." Other witnesses confirmed

that they had similarly observed decedent's fondness and trust

for petitioner and never observed him trying to pressure or

influence decedent. Notably, Schwarzenegger and Finn each

indicated that they discussed decedent's testamentary plan

outside the presence of petitioner. In fact, Schwarzenegger "saw

absolutely no indication of any undue influence being exerted

upon [decedent] with respect to her testamentary dispositions by

anyone, including [petitioner]."4 Similarly, based upon his

meetings with decedent, Finn – who had no prior professional

relationship with petitioner – had no doubt that decedent

understood the consequences of the will and that it was the

product of her own design, not of any undue influence exerted by

petitioner. Respondent's speculative and conclusory allegations

of undue influence offered in opposition to petitioner's motion

were insufficient to raise a question of fact (see Matter of

Stafford, 111 AD3d at 1219) that would preclude an award of

summary judgment dismissing this objection.

Respondent's challenge to Surrogate's Court denial of her

motion to reopen the SCPA 1404 hearing is also unavailing. The

new evidence allegedly discovered by respondent's husband

following the SCPA 1404 hearing consisted entirely of matters of

public record in existence prior to that hearing (see CPLR 5015

[a] [2]). We reject respondent's assertion that this evidence

4 Respondent asserts that, by referring decedent to

Schwarzenegger and corresponding with Schwarzenegger about how

the will should be drafted, petitioner procured the will. 

Notably, the will that was ultimately drafted by Schwarzenegger

differed – with respect to the named beneficiaries and amounts

bequeathed thereto – from petitioner's directions to

Schwarzenegger. Moreover, while respondent further asserts that

petitioner was negotiating with Finn on his own behalf, the

interactions to which respondent refers pertained not to the

will, but to the trust, which is not at issue here.
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could not have been discovered in a timely fashion or that it

probably would have altered the outcome of the probate proceeding

(see Matter of American Comm. for Weizmann Inst. of Science v

Dunn, 10 NY3d 82, 96 [2008]). Additionally, respondent's claim

of fraud or misconduct on the part of petitioner (see CPLR 5015

[a] [3]) is based entirely on petitioner's alleged conduct in the

context of matters that are wholly unrelated to the instant

probate proceeding. As a result, we cannot say that Surrogate's

Court abused its considerable discretion in denying respondent's

motion (see Matter of McLaughlin, 111 AD3d 1185, 1186 [2013]).

Respondent's remaining contentions, including her assertion

that summary judgment was premature, have been considered and are

found to be lacking in merit.

Peters, P.J., Garry, Egan Jr. and Clark, JJ., concur.

ORDERED that the orders are affirmed, with costs.

ENTER:

Robert D. Mayberger

Clerk of the Court