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Copr. (c) 2011, Secretary of State, State of New York
NY,2011.
Matter of Walker
80 A.D.3d 865, 914 N.Y.S.2d 379, 2011 WL 31747, 2011 N.Y. Slip Op. 00082
In the Matter of the Estate of Susie M. Walker, Also Known as Susie Mae Walker, Deceased. Delanor A. Perry-
Davis, Formerly Known as Delanor A. Perry, as Executor of Susie M. Walker, Deceased, Appellant; Tommy B.
Walker, Respondent.
Supreme Court, Appellate Division, Third Department, New York
Dismissal of Objection—Failure to Challenge Presumption of Due Execution
Wills
Probate
Testamentary Capacity
attorney approximately six months earlier; decedent need only have general, rather than precise, knowledge of assets
in his or her estate; moreover, fact that decedent handled her own financial affairs during year preceding her death
supported inference that she apprehended size of her estate.
Wills
Peters, J. Appeal from an order of the Surrogate's Court of Delaware County (Lambert, S.), entered July 7, 2010,
which denied petitioner's motion for summary judgment dismissing respondent's objections to decedent's will.
Decedent died in June 2009 survived by her son, respondent, and her great-grandson, Anthony D. Walker. In an
© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.
August 2007 will, decedent bequeathed her entire estate to her grandson, who is the child of petitioner and respond-
ent. Following her grandson's sudden death, decedent executed a new will, dated October 26, 2007, which named
Walker as the sole beneficiary of her estate and specifically disinherited respondent. Petitioner, as executor of dece-
dent's estate, offered the will for probate and respondent filed objections, alleging that the **2 will was not *866
properly executed, decedent lacked testamentary capacity and the will was the product of undue influence and fraud.
Following discovery, petitioner moved for summary judgment dismissing the objections. Surrogate's Court denied
the motion and this appeal by petitioner ensued.
Surrogate's Court erred in failing to dismiss respondent's objection to the execution of the will. The execution was
supervised by the attorney who drafted the will, and the will was accompanied by a self-executing affidavit signed
denied5 NY3d 705 [2005], quoting Matter of Buchanan, 245 AD2d 642, 644 [1997],lv dismissed91 NY2d 957
[1998];accord Matter of Paigo, 53 AD3d 836, 838 [2008]). The burden of proving capacity rests with the proponent
of the will, who must demonstrate that decedent “understood the consequences of executing the will, knew the na-
ture and extent of the property being disposed of and knew the persons who were the natural objects of her bounty,
and her relationship to them” (Matter of Ruparshek, 36 AD3d 998, 999 [2007];see Matter of Kumstar, 66 NY2d
will, who stated that decedent was alert and rational at the time she executed the will. Johnston further averred that
decedent made it abundantly clear that she did not want to leave any of her property to respondent, instead wishing
to leave her entire estate to Walker, and unequivocally confirmed that the contents of the instrument reflected her
express wishes. In this regard, record evidence confirms that decedent regularly expressed her dissatisfaction with
respondent and disappointment in the manner in which he treated her *867 and, for that reason, did not want him to
day decedent executed the will, she did not discuss decedent's assets with her or ascertain the exact amount of the
property comprising her estate. Johnston explained, however, both in her testimony and affidavit, that she discussed
decedent's assets with her on prior occasions, including during the preparation of a power of attorney approximately
six months earlier, at which time she was made aware that decedent's principal asset consisted of an apartment that
she owned in Brooklyn and that decedent had limited funds in bank accounts. Contrary to respondent's contention, a
Nor did respondent proffer sufficient evidence to raise an issue of fact on the issue of undue influence. “To prove
undue influence, a respondent must demonstrate that the decedent ‘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
Here, the crux of respondent's contention is that petitioner, who is respondent's ex-wife and resided with decedent at
the time the will was drafted and executed, accompanied decedent to the attorney's office and was present when the
will was *868 signed.FN*However, there is no direct evidence that petitioner did anything to actually influence dece-
dent's distribution of her assets, and respondent's speculative assertions are insufficient to raise an issue of fact (see
Matter of Ruparshek, 36 AD3d at 1000;Matter of Fairbairn, 9 AD3d 579, 581 [2004],lv denied3 NY3d 612 [2004]).
Colverd, 52 AD3d at 973-974).
Mercure, J.P., Rose, Malone Jr. and Garry, JJ., concur. Ordered that the order is reversed, on the law, with costs,
motion granted and summary judgment awarded to petitioner dismissing respondent's objections and admitting de-
cedent's will to probate.
NY,2011.
Matter of Walker
80 A.D.3d 865, 914 N.Y.S.2d 3796022011 WL 317479992011 N.Y. Slip Op. 000824603, 914 N.Y.S.2d
3796022011 WL 317479992011 N.Y. Slip Op. 000824603, 914 N.Y.S.2d 3796022011 WL 317479992011 N.Y.
Slip Op. 000824603
END OF DOCUMENT
© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.
August 2007 will, decedent bequeathed her entire estate to her grandson, who is the child of petitioner and respond-
ent. Following her grandson's sudden death, decedent executed a new will, dated October 26, 2007, which named
Walker as the sole beneficiary of her estate and specifically disinherited respondent. Petitioner, as executor of dece-
dent's estate, offered the will for probate and respondent filed objections, alleging that the **2 will was not *866
properly executed, decedent lacked testamentary capacity and the will was the product of undue influence and fraud.
Following discovery, petitioner moved for summary judgment dismissing the objections. Surrogate's Court denied
the motion and this appeal by petitioner ensued.
Surrogate's Court erred in failing to dismiss respondent's objection to the execution of the will. The execution was
supervised by the attorney who drafted the will, and the will was accompanied by a self-executing affidavit signed
denied5 NY3d 705 [2005], quoting Matter of Buchanan, 245 AD2d 642, 644 [1997],lv dismissed91 NY2d 957
[1998];accord Matter of Paigo, 53 AD3d 836, 838 [2008]). The burden of proving capacity rests with the proponent
of the will, who must demonstrate that decedent “understood the consequences of executing the will, knew the na-
ture and extent of the property being disposed of and knew the persons who were the natural objects of her bounty,
and her relationship to them” (Matter of Ruparshek, 36 AD3d 998, 999 [2007];see Matter of Kumstar, 66 NY2d
will, who stated that decedent was alert and rational at the time she executed the will. Johnston further averred that
decedent made it abundantly clear that she did not want to leave any of her property to respondent, instead wishing
to leave her entire estate to Walker, and unequivocally confirmed that the contents of the instrument reflected her
express wishes. In this regard, record evidence confirms that decedent regularly expressed her dissatisfaction with
respondent and disappointment in the manner in which he treated her *867 and, for that reason, did not want him to
day decedent executed the will, she did not discuss decedent's assets with her or ascertain the exact amount of the
property comprising her estate. Johnston explained, however, both in her testimony and affidavit, that she discussed
decedent's assets with her on prior occasions, including during the preparation of a power of attorney approximately
six months earlier, at which time she was made aware that decedent's principal asset consisted of an apartment that
she owned in Brooklyn and that decedent had limited funds in bank accounts. Contrary to respondent's contention, a
Nor did respondent proffer sufficient evidence to raise an issue of fact on the issue of undue influence. “To prove
undue influence, a respondent must demonstrate that the decedent ‘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
Here, the crux of respondent's contention is that petitioner, who is respondent's ex-wife and resided with decedent at
the time the will was drafted and executed, accompanied decedent to the attorney's office and was present when the
will was *868 signed.FN*However, there is no direct evidence that petitioner did anything to actually influence dece-
dent's distribution of her assets, and respondent's speculative assertions are insufficient to raise an issue of fact (see
Matter of Ruparshek, 36 AD3d at 1000;Matter of Fairbairn, 9 AD3d 579, 581 [2004],lv denied3 NY3d 612 [2004]).
Colverd, 52 AD3d at 973-974).
Mercure, J.P., Rose, Malone Jr. and Garry, JJ., concur. Ordered that the order is reversed, on the law, with costs,
motion granted and summary judgment awarded to petitioner dismissing respondent's objections and admitting de-
cedent's will to probate.
NY,2011.
Matter of Walker
80 A.D.3d 865, 914 N.Y.S.2d 3796022011 WL 317479992011 N.Y. Slip Op. 000824603, 914 N.Y.S.2d
3796022011 WL 317479992011 N.Y. Slip Op. 000824603, 914 N.Y.S.2d 3796022011 WL 317479992011 N.Y.
Slip Op. 000824603
END OF DOCUMENT
