                           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 self-
proving 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
