                            State of New York
                     Supreme Court, Appellate Division
                        Third Judicial Department
Decided and Entered: July 24, 2014                       517693
_________________________________

In the Matter of the Estate of
   FRANK PREVRATIL, Deceased.

NEIL PREVRATIL, as Executor of
   the Estate of FRANK
   PREVRATIL, Deceased, Under
   a Will Dated September 28,
   2006,
                    Appellant.

(Proceeding No. 1.)
_________________________________

In the Matter of the Estate of
   FRANK PREVRATIL, Deceased.                 OPINION AND ORDER

REBECCA L. ADRIAN et al., as
   Beneficiaries and/or Proposed
   Administrators CTA of the
   Estate of FRANK PREVRATIL,
   Deceased, Under a Will Dated
   May 24, 2011,
                    Respondents;

NEIL PREVRATIL,
                      Appellant,
        and

CHARLES PREVRATIL,
                      Respondent.

(Proceeding No. 2.)
_________________________________
                                   -2-            517693

In the Matter of the Estate of
   FRANK PREVRATIL, Deceased.

FRANK A. PREVRATIL, as Executor
   of the Estate of FRANK
   PREVRATIL, Deceased, Under
   a Will Dated May 24, 2011,
                    Petitioner;

NEIL PREVRATIL,
                     Appellant.

(Proceeding No. 3.)
________________________________


Calendar Date:    March 26, 2014

Before:   Peters, P.J., Lahtinen, McCarthy and Garry, JJ.

                             __________


     John T. Casey Jr., Troy, for appellant.

      Rowlands & LeBrou, PLLC, Latham (James J. LeBrou of
counsel), for respondents in proceeding No. 2.

                             __________


Peters, P.J.

      Appeal from an order of the Surrogate's Court of Columbia
County (Nichols, S.), entered January 17, 2013, which granted a
motion by petitioners and Charles Prevratil in proceeding No. 2
for summary judgment dismissing Neil Prevratil's objections to a
May 24, 2011 will of decedent.

      In 2006, decedent executed a will naming one of his two
sons, Neil Prevratil, as executor and sole beneficiary of his
                              -3-                517693

estate. The major asset of decedent's estate was a farm which he
used as a refuge for rescued horses. In February 2011, after
decedent was diagnosed with lung cancer, he contacted an attorney
for the purpose of revising his will. As decedent's medical
condition worsened, decedent's brother, Charles Prevratil, and
sister-in-law, Deborha Prevratil, traveled from their home in
Florida to New York in April 2011 to care for decedent. On May
24, 2011, five days before his death, decedent executed a new
will in which he named his other son, petitioner Frank A.
Prevratil, as executor, and divided his estate equally between
decedent's friends, petitioners Sonya J. Stack and Rebecca L.
Adrian (hereinafter collectively referred to as petitioners), and
Charles Prevratil. The will specifically disinherited Neil
Prevratil.

      On June 20, 2011, Neil Prevratil commenced proceeding No. 1
seeking to admit decedent's 2006 will to probate. Petitioners
thereafter prevailed upon Frank A. Prevratil and his wife – the
named successor executor – to petition to admit the 2011 will to
probate. After they allegedly refused to do so, on August 6,
2011, petitioners commenced proceeding No. 2 seeking to admit the
2011 will to probate. Frank A. Prevratil subsequently commenced
proceeding No. 3 also seeking probate of the 2011 will. Neil
Prevratil filed objections to the 2011 will, claiming improper
execution, lack of testamentary capacity and that the will was
procured by fraud and undue influence, and also seeking a
determination that petitioners had triggered the will's no
contest clause by offering the will for probate and seeking
letters of administration. Following discovery, petitioners and
Charles Prevratil (hereinafter collectively referred to as the
proponents) moved for summary judgment dismissing the objections.
Surrogate's Court granted the motion and this appeal by Neil
Prevratil ensued.

      First addressing the challenge to decedent's testamentary
capacity, the burden rested with the proponents to demonstrate
that decedent "understood the consequences of executing the will,
knew the nature and extent of the property being disposed of and
knew the persons who were the natural objects of [his] bounty,
and [his] relationship to them" (Matter of Ruparshek, 36 AD3d
998, 999 [2007]; see Matter of Kumstar, 66 NY2d 691, 692 [1985]).
                              -4-                517693

Here, the proponents offered the self-executing affidavit of the
attesting witnesses, who opined that decedent was of sound mind
and memory and in all respects competent to make a will. This
constituted prima facie evidence of the facts attested to and
created a presumption of testamentary capacity (see Matter of
Walker, 80 AD3d 865, 866 [2011], lv denied 16 NY3d 711 [2011];
Matter of Paigo, 53 AD3d 836, 838 [2008]). Further, the
testimony of these two witnesses and Harry Miller, the attorney
who drafted the will, established that decedent was aware of the
nature and extent of his property and knew who the objects of his
bounty were both prior to and at the time of execution. To that
end, Miller testified that decedent ardently wished the farm to
remain a horse sanctuary after his death and, believing that Neil
Prevratil would promptly sell the property, decided to change his
will to devise such property to petitioners, who would further
that goal.

      With the burden shifted to Neil Prevratil to produce
evidence demonstrating a triable issue of fact (see Matter of
Scaccia, 66 AD3d 1247, 1251 [2009]; Matter of Murray, 49 AD3d
1003, 1005 [2008]), he focused upon decedent's weakened condition
and use of analgesic medications during the period of time
preceding the will signing. That decedent suffered from terminal
cancer and was in a declining physical state as a result thereof
does not, without more, create a question of fact on the issue of
testamentary capacity, as "the appropriate inquiry is whether the
decedent was lucid and rational" at the time the will was signed
(Matter of Paigo, 53 AD3d at 838 [internal quotation marks and
citations omitted]; see Matter of Alibrandi, 104 AD3d 1175, 1176
[2013]; Matter of Murray, 49 AD3d at 1005; Matter of Williams, 13
AD3d 954, 957 [2004], lv denied 5 NY3d 705 [2005]). Furthermore,
Deborha Prevratil testified that decedent stopped taking pain
medication on the evening before the will signing "because he
wanted to be of clear mind," and there is no evidence in the
record of any medication ingestion by decedent until after the
2011 will had been executed. Lacking any proof that decedent was
not rational, lucid or competent at the time he executed the
will, Surrogate's Court properly granted summary judgment
dismissing this objection (see Matter of Castiglione, 40 AD3d
1227, 1228 [2007], lv denied 9 NY3d 806 [2007]; Matter of Seelig,
13 AD3d 776, 777 [2004], lv denied 4 NY3d 707 [2005]).
                              -5-                517693

      Neil Prevratil also argues that decedent's will was the
product of undue influence on the part of Deborha Prevratil and
the proponents. "To establish undue influence, the burden is on
the objectant to show that the influencing party's actions are so
pervasive that the will is actually that of the influencer, not
that of the decedent" (Matter of Malone, 46 AD3d 975, 977 [2007]
[citations omitted]; see Matter of Greenwald, 47 AD3d 1036, 1037
[2008]).

           "[T]he influence exercised [must] amount[]
           to a 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
           [or her] free will and desire, but which
           he [or she] was unable to refuse or too
           weak to resist" (Matter of Walther, 6 NY2d
           49, 53 [1959]; see Matter of Alibrandi,
           104 AD3d at 1178; Matter of Greenwald, 47
           AD3d at 1037).

Although undue influence may be proven through circumstantial
evidence, such evidence must be "of a substantial nature" (Matter
of Walther, 6 NY2d at 54 [internal quotation marks and citations
omitted]; see Matter of Aoki, 99 AD3d 253, 265 [2012]; Matter of
Moles, 90 AD3d 473, 474 [2011]).

      Initially, we find that the evidence adduced was
insufficient to establish that a confidential relationship
existed between decedent and either Stack or Deborha Prevratil,
such that the burden would shift to the proponents to show that
the transaction from which they benefitted was free from undue
influence (see Matter of Graeve, 113 AD3d 983, 984 [2014]; Matter
of Seelig, 13 AD3d at 779; Feiden v Feiden, 151 AD2d 889, 891
[1989]).1 Although Stack transmitted documents to decedent's


    1
        Neil Prevratil's argument that a confidential
relationship existed between decedent and either Adrian or
Charles Prevratil is raised for the first time on appeal and, as
                              -6-                517693

attorneys during the revision process – including both the
initial changes naming her and Adrian as beneficiaries of the
estate as well as the subsequent addition of Charles Prevratil as
a beneficiary – Miller testified that decedent had authorized
documents to be sent to him through Stack, as decedent did not
have a fax machine. Testimony further established that any
changes to the will were reviewed with decedent to confirm that
they reflected his intent. There is nothing in the record to
indicate that Stack's role was anything more than a "conduit to
effectuate decedent's desires" (Matter of Greenwald, 47 AD3d at
1038). As for Deborha Prevratil, although she prepared meals and
administered medications for decedent in the final period of his
illness, he was not under her exclusive care and control and had
fairly regular contact with friends as his illness progressed
(compare Oakes v Muka, 69 AD3d 1139, 1140 [2010], appeal
dismissed 15 NY3d 867 [2010]). Nor was there any proof that
decedent's mental condition had deteriorated or that Deborha
Prevratil had any role in his financial affairs. Moreover, any
legal presumption that decedent's decision to include Charles
Prevratil as a beneficiary was the product of undue influence was
counterbalanced by the familial relationship between the two (see
Matter of Walther, 6 NY2d at 56; Jacks v D'Ambrosio, 69 AD3d 574,
575 [2010]; Matter of Zirinsky, 43 AD3d 946, 948 [2007], lv
denied 9 NY3d 815 [2007]; Matter of Swain, 125 AD2d 574, 575
[1986], lv denied 69 NY2d 611 [1987]).

      With the burden thus remaining with Neil Prevratil, we find
that there has been no showing that any of the proponents
actually exercised undue influence with respect to the
distribution of decedent's assets. The evidence established that
decedent's relationship with Neil Prevratil had rapidly
deteriorated in the years preceding decedent's death, and
decedent feared that Neil Prevratil would sell the farm if it
were devised to him. With the exception of one brief encounter,
the two had no contact during the year and a half leading up to
decedent's ultimate demise. The affidavit of a long-time friend


such, is not preserved for our review (see Matter of Buchting,
111 AD3d 1114, 1117 n 4 [2013]; Matter of Walker, 80 AD3d at 868
n).
                              -7-                517693

of decedent established that, as early as 2009, decedent
indicated his intent to leave his farm to petitioners. Another
of decedent's friends testified that, after being diagnosed with
lung cancer, decedent told him that he wanted to leave his
property to the proponents. These individuals explained that
decedent wished the farm to remain a refuge for rescued horses
after his death, and believed that petitioners – both of whom
worked on the farm – would continue farm operations after he
died.

      Miller testified that he had various discussions with
decedent regarding the disposition of his estate beginning in
February 2011, and confirmed that he drafted the will based on
decedent's instructions. In that regard, Miller too testified
that decedent indicated that he did not wish to devise the farm
to his sons because they "were simply going to sell [it] when he
died," and believed that petitioners would continue to use the
farm as a refuge for rescued horses should he devise it to them.
According to the paralegal who witnessed the execution of the
will, decedent mentioned Neil Prevratil in the course of the will
signing, indicating that he was intentionally disinheriting Neil
Prevratil because he refused to respect his wishes. Phillip
Tribble, the attorney who supervised the execution ceremony as a
substitute for Miller, testified that he reviewed the will
"paragraph by paragraph" with decedent during the course of the
execution ceremony. Notably, none of the proponents was present
when decedent executed the will, and both Tribble and the
paralegal testified that decedent did not appear to be under any
restraint or duress at the time.

      In response, Neil Prevratil's attempt to show the actual
exercise of undue influence consisted of allegations that were
conclusory and speculative (see Matter of Scaccia, 66 AD3d at
1252; Matter of Nofal, 35 AD3d 1132, 1135 [2006]). The only
argument made with regard to Adrian is that she may have had an
intimate relationship with decedent at some point in time, an
assertion which finds no support in the record and does not, in
any event, rise to the level of undue influence. Furthermore, as
noted, the unrefuted testimony establishes that Stack was merely
serving as a conduit for information during the process of
revising decedent's will. As for Deborha Prevratil and Charles
                              -8-                517693

Prevratil, Neil Prevratil argues that the addition of Charles
Prevratil as a beneficiary just one day before the will signing,
and during a time when they were living at decedent's home and
providing care for him, creates an issue of fact as to undue
influence. Yet neither "the promptings of affection[,] the
desire of gratifying the wishes of another[,] the ties of
attachment arising from consanguinity, [n]or the memory of kind
acts and friendly offices" is indicative of undue influence
(Matter of Walther, 6 NY2d at 53 [internal quotation marks and
citation omitted]; see Matter of Aoki, 99 AD3d at 266; Matter of
American Comm. for Weizmann Inst. of Science v Dunn, 36 AD3d 419,
419-420 [2007], affd 10 NY3d 82 [2008]; Matter of Arnold, 78 AD2d
753, 753 [1980], appeal dismissed 53 NY2d 703 [1981]). While
Neil Prevratil hypothesizes that the addition of Charles
Prevratil as a beneficiary was induced by improper influence
rather than gratitude and affection,2 "[a]n inference of undue
influence cannot be reasonably drawn from circumstances when they
are not inconsistent with a contrary inference" (Matter of
Walther, 6 NY2d at 54; see Matter of Stafford, 111 AD3d 1216,
1219 [2013]; Matter of Walker, 80 AD3d at 868; Matter of Nofal,
35 AD3d at 1135-1136). Accordingly, the objection grounded upon
undue influence was also properly dismissed.

      Neil Prevratil's fourth objection requested that
Surrogate's Court construe the language of the no contest clause
in such a way as to find that, by offering the 2011 will for
probate and seeking letters of administration, petitioners


    2
        Although Neil Prevratil places emphasis on a phone
conversation allegedly had between Frank A. Prevratil and Deborha
Prevratil, wherein Deborha Prevratil allegedly expressed
frustration with decedent for failing to do something concrete
about his will, this does not constitute "direct evidence that
[Deborha Prevratil or Charles Prevratil] did anything to actually
influence decedent's distribution of [his] assets" (Matter of
Walker, 80 AD3d at 868; accord Matter of Stafford, 111 AD3d 1216,
1219 [2013]). In any event, under the circumstances of this
case, such hearsay testimony would be insufficient to raise an
issue of fact (see Kaufman v Quickway, Inc., 64 AD3d 978, 980-981
[2009], affd 14 NY3d 907 [2010]).
                              -9-                517693

forfeited the interests granted to them under the will. While
Surrogate's Court implicitly rejected such a reading of the no
contest clause by dismissing that objection, it was without
authority to construe the terms of the will prior to probate.
The Court of Appeals has stated that "[p]robate logically
precedes construction," since "there is no will to construe"
prior to probate (Matter of Davis, 182 NY 468, 475 [1905]; accord
Matter of Martin, 17 AD3d 598, 599 [2005]). There is not a no
contest clause exception to the rule that a will must be probated
in order for a court to construe any of its provisions (see
Matter of Martin, 17 AD3d at 599; Matter of Baugher, 29 Misc 3d
700, 702-703 [2010]; Matter of Shear, 182 Misc 2d 684, 686
[1999]; Matter of Zurkow, 74 Misc 2d 736, 738 [1973]; but see
Matter of Grupp, 160 Misc 2d 407, 411-413 [1994]). Rather,
pursuant to SCPA 1420 (3), it is only "[u]pon the entry of a
decree admitting the will to probate" that a court may resolve a
party's request for a determination of the construction or effect
of a provision of the will. Here, Surrogate's Court's order made
no decree admitting the will to probate, and we take judicial
notice of the fact that such decree has yet to issue. This need
not detain us, however, as we possess "concurrent jurisdiction
[with Surrogate's Court] in matters involving decedents' estates"
(Dunham v Dunham, 40 AD2d 912, 913 [1972]; see NY Const, art VI,
§§ 1 [a]; 4 [k]; 7 [a]; 12 [f]; H & G Operating Corp. v Linden,
151 AD2d 898, 900 [1989]; see also Judson v Central Vt. R.R. Co.,
158 NY 597, 601 [1899]). Given that the parties have fully
briefed their arguments regarding the construction and effect of
the no contest clause, and mindful that Surrogate's Court was
obliged to admit the 2011 will to probate upon dismissal of the
first three objections (see SCPA 1408 [2]; Matter of Pascal, 309
NY 108, 113 [1955]; Matter of Cherkoff, 9 AD2d 557, 558 [1959]),
we will exercise our power to admit the will to probate and reach
the merits of the dispute in the interest of judicial economy and
to avoid unnecessary future ligation.

       While enforceable, no contest clauses are disfavored and
must be strictly construed (see Matter of Singer, 13 NY3d 447,
451 [2009]; Matter of Fairbairn, 46 AD3d 973, 974 [2007], lv
denied 10 NY3d 708 [2008]; Oakes v Muka, 31 AD3d 834, 835 [2006],
supra). The no contest provision at issue provides for
revocation of a beneficiary's interest if the beneficiary
                              -10-               517693

"contest[s] the probate or validity of [the] Will or any
provision thereof, or . . . institute[s] . . . any proceeding to
. . . prevent any provision [of the Will] from being carried out
in accordance with its terms." Here, petitioners did not contest
the validity of the will or any of its provisions by seeking to
admit the will to probate (see Matter of Stralem, 181 Misc 2d
715, 718 [1999]; see generally SCPA 1402 [1] [b]; EPTL 3-3.5 [b]
[1]; cf. Matter of Fairbairn, 46 AD3d at 974). Rather, given
that Neil Prevratil had already offered the 2006 will for probate
nearly two months earlier, they reasonably undertook to probate
the 2011 will themselves after the nominated executor and
successor executor thereunder failed to do so.

      To the extent that petitioners sought letters of
administration, we cannot conclude that, by including the no
contest clause in his will, decedent intended to preclude a
beneficiary from challenging or otherwise questioning the conduct
of a fiduciary. "We begin, of course, with the elemental
proposition that in construing a will the court's foremost
objective is ascertainment of [the] decedent's intent, and,
concomitantly, effectuating the will's purpose (Matter of Carmer,
71 NY2d 781, 785 [1988]; see Matter of Singer, 13 NY3d at 451;
Matter of Covert, 97 NY2d 68, 74 [2001]; Matter of Bieley, 91
NY2d at 520, 525 [1998]; Matter of Fabbri, 2 NY2d 236, 239
[1957]). The decedent's intent must be ascertained "'not from a
single word or phrase[,] but from a sympathetic reading of the
will as an entirety and in view of all the facts and
circumstances under which the provisions of the will were
framed'" (Matter of Bieley, 91 NY2d at 525, quoting Matter of
Fabbri, 2 NY2d at 240; accord Matter of Carmer, 71 NY2d at 785-
786; Matter of Stiefel, 24 AD3d 994, 996 [2005], lv dismissed 6
NY3d 843 [2006]; Matter of McCabe, 269 AD2d 727, 728 [2000]; see
Matter of Scale, 38 AD3d 983, 984 [2007]). Where the instrument,
taken as a whole, establishes a dominant dispositional scheme,
individual provisions must be read to carry out that scheme,
"notwithstanding that general rules of interpretation might point
to a different result" (Matter of Bieley, 91 NY2d at 525
[internal quotation marks and citation omitted]; see Matter of
Carmer, 71 NY2d at 785-786; Matter of Thall, 18 NY2d 186, 192
[1966]; Matter of Fabbri, 2 NY2d at 240; Matter of Murray, 84
AD3d 106, 113 [2011], lv denied 18 NY3d 874 [2012]; Matter of
                              -11-               517693

White, 65 AD3d 1255, 1257 [2009]; Matter of McCabe, 269 AD2d at
728).

      Decedent's intent, as manifested in the 2011 will, is
plain. Quite obviously, what decedent desired was that the
entirety of his estate be distributed equally to, and remain
with, the proponents. Indeed, the will makes assiduous provision
for the continuation – under the proponents' collective care – of
decedent's farm for rescued horses. By contrast, the will
expressly "made no [dispositional] provision[]" for either Neil
Prevratil or Frank A. Prevratil. While petitioners admittedly
sought letters of administration in conjunction with proceeding
No. 2, they did so nearly three months after decedent's death,
some seven weeks after Neil Prevratil offered the 2006 will for
probate and only after the fiduciaries named in the 2011 will
refused to seek probate of the will under which they were named.
Petitioners' request for letters of administration was, under the
circumstances, consistent with a desire to effectuate – rather
than defeat – decedent's express testamentary scheme. Thus,
although the no contest clause in the 2011 will purports to
disinherit any beneficiary who "shall institute . . . any
proceeding to . . . prevent any provision [of the will] from
being carried out in accordance with its terms," an isolated and
overly literal reading of the clause would "constitute an
abdication of the [C]ourt's duty to accomplish, as nearly as
possible, the disposition actually intended by the testator, and
would reduce its task to a simple exercise in semantics" (Matter
of Fabbri, 2 NY2d at 243; see Matter of Carmer, 71 NY2d at 785
[holding that the courts' interpretative task "is not furthered
by rote ascription of technical meanings to terms regardless of
context"]; Matter of Kosek, 31 NY2d 475, 484-485 [1973] [in
determining the meaning of a particular testamentary provision,
the Court noted that there "is no more likely way to misapprehend
the meaning of language . . . than to read the words literally,
forgetting the object which the document as a whole seeks to
achieve"] [internal quotation marks and citations omitted]).
"Since the [decedent's] dominant intent [is] inferable from the
[will] itself, its fulfilment constitutes no redrafting" (Matter
of Fabbri, 2 NY2d at 242). Rather, reading the will as a whole
and in light of the facts and circumstances surrounding its
creation (see id. at 240; Matter of Scale, 38 AD3d at 986; Matter
                              -12-               517693

of McCabe, 269 AD2d at 728) – and mindful of the general precept
that no contest clauses, although valid, are disfavored and
should be narrowly construed – we cannot conclude that decedent
intended to preclude petitioners from seeking letters of
administration in the face of the named fiduciaries' inaction.

      Further, even if decedent's intent were to prohibit a
beneficiary from questioning the conduct of a nominated
fiduciary, such a broad no contest clause would be void as
against public policy (see Matter of Rimland, 2003 NY Slip Op
50966[U], *5 [Sur Ct, Bronx County 2003]; Matter of Stralem, 181
Misc 2d at 718). EPTL 11-1.7 – the statutory provision
addressing public policy as it pertains to will provisions – is
designed "to curb the practice of insulating fiduciaries from an
obligation to exercise reasonable care, diligence and prudence by
making it against public policy" (Matter of Stralem, 181 Misc 2d
at 720; see 4th Rep of Temp St Commn on Estates, 1965 NY Leg Doc
No. 19, at 499; Margaret Valentine Turano, Practice Commentaries,
McKinney's Cons Laws of NY, Book 17B, EPTL 11-1.7 at 144; Matter
of Lang, 60 Misc 2d 232, 234-235 [1969]). A no context clause
that attempts to preclude a beneficiary from questioning the
eligibility or conduct of a fiduciary does just that, and is
therefore contrary to public policy (see Matter of Egerer, 30
Misc 3d 1229[A], 2006 NY Slip Op 52713[U], *3 [Sur Ct, Suffolk
County 2006]; Matter of Fromartz, 2005 NY Misc LEXIS 4654, *2
[2005]; Matter of Rimland, 2003 NY Slip Op 50966[U], at *5;
Matter of Stralem, 181 Misc 2d at 720; Matter of Ascher, 175 Misc
943, 944-945 [1941]; Matter of Robbins, 144 Misc 2d 510, 514-515
[1989]; Matter of Lang, 60 Misc 2d at 235l; see also 12-207
Warren's Heaton on Surrogate's Court Practice § 207.01).

      The dissent agrees that such a clause is void, but only to
the extent that it bars challenges based upon probable cause.
However, there is no basis in either the EPTL or this state's
jurisprudence for imposition of such a requirement. The EPTL
clearly and unequivocally sets forth a blanket prohibition
against any attempt to exonerate a fiduciary from his or her
obligation to exercise reasonable care, diligence and prudence,
and – with one narrow exception not relevant here – expressly
provides that the presence or absence of probable cause is not
relevant to the validity of a no contest clause (see EPTL 3-3.5
                                 -13-            517693

[b]; 11-1.7).3

      In sum, petitioners did not forfeit their interests under
the 2011 will by seeking letters of administration. To the
extent not specifically addressed herein, Neil Prevratil's
remaining ascriptions of error have been reviewed and found to be
lacking in merit.

         Lahtinen and Garry, JJ., concur.


McCarthy, J. (concurring in part and dissenting in part).

      I agree with the majority's resolution of this matter on
all issues except the no contest clause in the 2011 will.
Petitioners Sonya J. Stack and Rebecca L. Adrian (hereinafter
collectively referred to as petitioners) violated that clause.
On that basis, I respectfully partially dissent.

      "There is no basis to disregard express terms in a will,
absent ambiguity" (Matter of Clark, 304 AD2d 1034, 1034 [2003]
[citation omitted]). "The paramount consideration in will
construction proceedings is the testator's intent" (Matter of
Singer, 13 NY3d 447, 451 [2009] [citation omitted]), and
"'[w]here language is unambiguous and supports a reasonable
meaning, it must be accepted as manifesting the grantor's


     3
        The probable cause standard proffered by the dissent
comes from the Restatement of Property, which, as noted, has not
been adopted in this state (see Restatement [Second] of Property
§ 9.2). In that regard, the Restatement provides that "[a]
beneficiary who in good faith questions in a legal proceeding the
conduct of the fiduciary should presumptively be deemed to have
probable cause" (Restatement [Second] of Property § 9.2 Comment
c). Thus, even if this were the appropriate standard to be
applied, we would find that the evidence submitted by petitioners
was more than sufficient to demonstrate a good faith basis for
questioning the conduct of the nominated and successor executor.
In response, not a scintilla of evidence was presented to
contradict petitioners' proof or otherwise rebut their showing.
                              -14-               517693

intention; the court is bound and the canons of construction do
not come into play'" (id., quoting Matter of Gouraud, 85 AD2d
342, 344 [1982], affd 59 NY2d 925 [1983]; accord Matter of
Rodrigues, 33 AD3d 926, 927 [2006]). The separate rule that we
strictly construe no contest clauses (see Matter of Singer, 13
NY3d 447, 451 [2009]; Matter of Fairbairn, 46 AD3d 973, 974
[2007], lv denied 10 NY3d 708 [2008]) does not allow this Court
to disregard a "testator's expressed intent" as manifested in
such a clause, as long as the remainder of the will does not
render that clause ambiguous (Matter of Singer, 13 NY3d at 454
[Graffeo, J., concurring]; see e.g. Matter of Fairbairn, 46 AD3d
at 974). The majority is correct that a will must be read as a
whole, rather than parsing individual words or phrases out of
context, to discern the testator's intent from the meaning of the
words used in that instrument (see Matter of Bieley, 91 NY2d 520,
525 [1998]). The majority only discerns a single dominant
dispositional scheme and uses it to interpret every portion of
the will so as to carry out that scheme. In doing so, however,
the majority ignores the possibility – and here, the fact – that
a testator may plainly include alternative or contingent
dispositional schemes in a will.

      The no contest clause included in decedent's will
unambiguously forbids the action taken by petitioners. As the
movants for summary judgment dismissing Neil Prevratil's
objection that petitioners should not benefit under the will
because they had violated the no contest clause, petitioners had
the burden of establishing, as a matter of law, either that they
did not violate the no contest clause in the will or that any
portion of the clause that they violated was void as against
public policy (see generally Zuckerman v City of New York, 49
NY2d 557, 562 [1980]; Matter of Siegel, 90 AD3d 937, 939-940
[2011]). The no contest clause in the 2011 will states, in part:

           "If any beneficiary hereunder shall
           contest . . . any provision [of this
           will], or shall institute or join in . . .
           any proceeding . . . to prevent any
           provision [of the will] from being carried
           out in accordance with its terms
           (regardless of whether or not such
                              -15-               517693

           proceedings are instituted in good faith
           and with probable cause), then all
           benefits provided for such beneficiary are
           revoked."

This portion of the clause goes further than a more general
prohibition to contesting probate or attacking the validity of
the will, as it unambiguously expresses the intent to further
prohibit beneficiaries from contesting any individual provision
of the will or from joining in "any proceeding . . . to prevent
any provision [of the will] from being carried out in accordance
with its terms" (compare Matter of Rimland, 2003 NY Slip Op
50966[U], *3-4 [2003] and Matter of Stralem, 181 Misc 2d 715, 717
[1999], with Matter of Singer, 13 NY3d at 454 and Matter of
Fairbairn, 46 AD3d at 974).

      Turning to the other provisions of the will, one nominates
petitioner Frank A. Prevratil as executor of decedent's estate
and Sheri Prevratil as successor executor.1 Upon the motion made
by petitioners and Charles Prevratil (hereinafter collectively
referred to as the proponents) for summary judgment dismissing
Neil Prevratil's objections, the proponents submitted evidence
that petitioners had cross-petitioned for probate of the 2011
will and had sought issuance of letters c.t.a. to themselves,2


    1
        Our courts have regularly recognized the importance of a
testator's choice of executor, acknowledging that it "should be
given great deference and not disregarded unless that executor is
not legally qualified to act as a fiduciary" (Matter of Palma, 40
AD3d 1157, 1158 [2007]; see Matter of Venezia, 25 AD3d 717, 718
[2006]; Matter of Hunter, 6 AD3d 117, 127 [2004], affd 4 NY3d 260
[2005]; see also Matter of Leland, 219 NY 387, 393-394 [1916]).
Any sympathetic reading of the will for the primary purpose of
giving effect to decedent's intent requires such deference to
decedent's unambiguous preference of executors. The majority's
decision gives no weight to decedent's intent in this regard.
    2
        Petitioners' attempt to probate the 2011 will did not
require them to address the issue of who should administer
decedent's estate. As the majority decision illustrates, a court
                              -16-               517693

alleging in a sworn statement that the nominated executor and
successor executor were unfit to administer the estate because
they had not yet sought to probate the will and had refused to
return petitioners' phone calls. Having joined in a proceeding
in which one of the express purposes was to have the nominated
executors disqualified, petitioners both contested the nomination
provision of the will and attempted "to prevent [that] provision
[in the will] from being carried out in accordance with its
terms."

      A reading of the remainder of the will does not alter this
result, because the entirety of the will does not render the
meaning of the relevant portions of the no contest clause
ambiguous. The majority opines that "[q]uite obviously, what
decedent desired was that the entirety of his estate be
distributed equally to, and remain with, the proponents."
However, as a matter of necessity, every will that contains a no
contest clause that has the potential to deny benefits to an
individual must also contain other provisions making that
individual a beneficiary.3 This scenario on its own does not
create any ambiguity as to a dominant dispositional scheme, as it
is reasonably interpreted as conveying contingent rather than
conflicting intentions (see Matter of Ragone, 116 Misc 2d 993,


may probate a will without also determining who should administer
the estate (see SCPA 1402 [1] [a]; see also Margaret Valentine
Turano, Practice Commentaries, McKinney's Cons Laws of NY, Book
58A, SCPA 1402, at 185 [stating that "(t)his section confers
status to petition for the probate of a will. It does not confer
any right to serve as fiduciary, but simply to offer the will for
probate so the court can appoint the person nominated in the will
or other appropriate fiduciary"]).
    3
        For this reason, the majority's emphasis that "the will
expressly 'made no [dispositional] provision[]' for either Neil
Prevratil or Frank A. Prevratil" only draws further attention to
the fact that those individuals were not the intended subjects of
the prohibitions of the no contest clause. If that provision has
any other relevance, it supports the argument that decedent cared
a great deal about his power to withhold gifts from individuals.
                              -17-               517693

998-999 [1981] [finding that the existence of a residuary clause
does not create an ambiguity as to a testator's intended
dispositional scheme where that clause was reasonably interpreted
as only applying in the contingent scenario where other
provisions of the will did not dispose of the entirety of the
estate in some alternative manner], mod 87 AD2d 457 [1982], revd
58 NY2d 864, 866 [1983] [reversing the Appellate Division and
affirming Surrogate's Court "for reasons stated" in Surrogate's
Court's decision]). In addition, a reading of the entirety of
the will only reinforces that decedent intended for the
prohibitions described in the no contest clause to apply to "any
beneficiaries," including petitioners. Absent the scenarios
described in the no contest clause, and as the majority notes,
decedent intended to distribute the entirety of his estate
between three people, two of whom are petitioners. Had decedent
intended to apply the no contest clause only to Charles
Prevratil, the third beneficiary, decedent could have easily
named him rather than describing the clause as applying to "any
beneficiary." Further, the rest of the will does not contain any
language that could reasonably be read as addressing the
scenarios described in the no contest clause. Therefore,
petitioners' actions violated the no contest clause according to
its plain language.4


    4
        This conclusion – that decedent intended to protect his
nominated executors from attacks against their fitness to serve
in such a position – is not so unreasonable that no decedent
would have intended it, which might warrant disregarding the
plain meaning of the relevant provisions (see generally Matter of
Estate of Clark, 304 AD2d at 1034). This state's courts have
repeatedly faced testators who have unambiguously attempted to
exempt nominated fiduciaries from the requirements otherwise
placed on them by law (see e.g. Matter of Allister, 144 Misc 2d
994, 997-998 [1989]; Matter of Robbins 144 Misc 2d at 512-515;
Matter of Lang, 60 Misc 2d 232, 233-234 [1969]), testators have
previously attempted to insulate their nominated executors from
challenge to their service as fiduciaries (see e.g. Estate of
Ferber, 66 Cal App 4th 244, 248 [Cal App 1998] [examining a no
contest clause that denied benefits to any beneficiary who
"challenge(d) the appointment of any person named as an
                              -18-                517693

      The majority never states that any portion of the will
renders the plain language of the no contest clause ambiguous.
Instead, the majority notes that this Court has a duty to avoid
"isolated and overly literal reading[s]" that reduce
interpretation to "a simple exercise in semantics," because such
readings risk misinterpreting a testator's intent (internal
quotation marks and citation omitted). A reading based on the
plain language of the no contest clause is isolated by necessity
rather than design, because the will does not otherwise address
the actions that were prohibited by the no contest clause or,
alternatively, suggest that petitioners might not be subject to
that clause. The reading is literal to the extent that it gives
effect to plain language5 and semantic to the extent that it
affords each of the quoted portions of the no contest clause its
single reasonable meaning. Disregarding the plain and literal
meaning of such language when discerning intent, as the majority
appears to do, renders the plain language of the no contest
clause meaningless.6 In the search for a testator's intent,
"[w]ords are never to be rejected as meaningless or repugnant if
. . . they may be made consistent and significant. Excision is a
'desperate remedy'" (Matter of Buechner, 226 NY 440, 443 [1919,



executor"]), and commentators have specifically addressed that
scenario (see Restatement [Second] of Property § 9.2 Comment c).
     5
        It is difficult to imagine a workable standard that would
give a testator meaningful guidance for how to employ
appropriately literal language, rather than overly literal
language, the latter of which the majority does not recognize as
conveying a testator's intention.
     6
        An alternative possible interpretation of the majority's
conclusion is that rather than finding that the relevant portions
of the no contest clause should be attributed no meaning, their
broad and plain language application should instead be narrowed.
The record would provide no rational basis to assert that
decedent intended to provide a particular and more narrow no
contest clause, and this Court's insertion of its own wisdom as
to the proper scope of such clauses would in no way properly
further the search for decedent's intent regarding the matter.
                              -19-               517693

Cardozo, J.] [citation omitted]; accord Matter of Gulbenkian, 9
NY2d 363, 370 [1961]). Because the no contest clause is
reconcilable with the remaining language of the will under a
dominant scheme that provides for different dispositions upon
different contingent events, there is no authority that would
support a construction that, in an effort to discern decedent's
intent, excises the literal and plain language portions of the no
contest clause as meaningless.

      Turning now to the issue of public policy, petitioners
failed to establish that, as a matter of law, any portion of the
no contest clause that they violated is contrary to public
policy. Statutory eligibility requirements for the fiduciary of
an estate limit a testator's choice of executor (see SCPA 707).
In light of these statutory eligibility requirements, I do not
believe that public policy allows testators to entirely prohibit
beneficiaries from bringing the ineligibility of nominated
executors to the attention of the courts, which would frustrate
the ability of those courts to conduct independent inquiries into
such a matter (see generally Estate of Ferber, 66 Cal App 4th
244, 254 [Cal App 1998] [noting that even though courts have a
duty of oversight as to the administration of an estate, "as a
practical matter, (they) lack the resources to scrutinize every
matter . . . (and) must rely on beneficiaries to be aware of the
facts and raise cogent points"]).

      Public policy as to the fitness of a nominated executor is
not entirely analogous to that expressed in EPTL 11-1.7. As the
majority notes, EPTL 11-1.7 establishes that, generally, public
policy contravenes "[t]he attempted grant to an executor . . .
[of] exoneration . . . from liability for failure to exercise
reasonable care, diligence and prudence." First, EPTL 11-1.7
deals with executors who have fiduciary duties; someone who is
merely nominated as executor does not have the duties mentioned
in EPTL 11-1.7 (see generally Matter of Mandelbaum, 7 Misc 3d
539, 540 [2005]). Among other reasons that a nominated executor
does not have such duties is that he or she may have no notice of
the potential appointment or, alternatively, of a testator's
death (compare SCPA 1414 [1], [4]), and further, it would be
unreasonable to attribute to a nominated executor the duties of a
fiduciary without also distributing the corresponding powers.
                              -20-               517693

      Not only is there a meaningful difference between
executors and nominated executors but, for the purposes of the
testator's choice of executor, breach of duty claims are not like
unfitness claims. While "it is not every breach of fiduciary
duty that will warrant removal [of an executor]" (Matter of Duke,
87 NY2d 465, 473 [1996] [internal quotation marks and citations
omitted]), every finding of unfitness renders a nominated
executor ineligible (see SCPA 707). The former can simply be an
attack on a fiduciary's execution of his or her duties, or can
even seek to encourage the fiduciary to continue serving,
although in a more diligent and conscientious manner, but the
latter is necessarily a direct attempt to undermine the
testator's choice of executor.

      Public policy does not weigh entirely in favor of
questioning a testator's choice of executor. While statutory
eligibility requirements exist, "[i]t may be broadly stated that
the common law favors the rule that no restriction should be
placed upon the choice of an executor" (Matter of Leland, 219 NY
387, 393-394 [1916], supra; cf. Matter of Duke, 87 NY2d at 473
["Removal of a fiduciary constitutes a judicial nullification of
the testator's choice and may only be decreed when the grounds
set forth in the relevant statutes have been clearly
established."]). Therefore, public policy in this situation
requires a balance between the goals of allowing proper inquiries
into a nominated executor's eligibility while dissuading
unwarranted and costly second-guessing of a testator's choice of
executor. This proper balance requires that beneficiaries be
allowed to argue to courts that nominated executors are
ineligible, regardless of testators' intentions to the contrary,
but only to the extent that such contest is based on probable
cause (cf. EPTL 11-1.7, 3-3.5 [b] [1]; see generally Matter of
Singer, 13 NY3d at 452 [acknowledging that the statutory
protections from no contest clauses provided in EPTL 3-3.5 are
"not exclusive"]; Restatement [Second] of Property § 9.2 Comment
c).7 Accordingly, the specific portion of the no contest clause


    7
        I note that while a more far-reaching public policy
protection for ineligibility claims made in good faith would also
seem reasonable in striking the appropriate balance (see
                              -21-               517693

here that seeks to withhold benefits from any beneficiary who,
upon probable cause, attempts to replace the nominated executors
due to their ineligibility is without effect.

      Turning to the motion, petitioners signed a sworn
statement that Frank A. Prevratil and Sheri Prevratil were both
unfit to serve as executor of decedent's estate because the
nominated executors "[were] aware of the [w]ill dated May 24,
2011 executed by [d]ecedent before his death but ha[d] chosen not
to file said [w]ill for probate with the [c]ourt and ha[d]
refused to return telephone calls by [p]etitioners to them."8 On
a motion for summary judgment, the evidence must be viewed in a
light most favorable to the nonmoving party, according him or her
the benefit of every reasonable inference (see William J. Jenack
Estate Appraisers & Auctioneers, Inc. v Rabizadeh, 22 NY3d 470,
475 [2013]; McGrath v George Weston Bakeries, Inc., 117 AD3d
1303, 1305 [2014]). Under this standard of review, the evidence
submitted was insufficient to establish as a matter of law that
petitioners had probable cause to allege that Frank A. Prevratil
and Sheri Prevratil were both "unfit for the execution of the
office" at the time that petitioners requested letters c.t.a. for
themselves (SCPA 707 [1] [e]; see Matter of Badore, 73 Misc 2d
471, 474 [1973]). The evidence makes no distinction between the
two nominated executors and gives no factual support for
petitioners' conclusions that they had chosen not to file the
will. There is a reasonable possibility that such conclusions
were speculative. Even if the conclusions were supported,
petitioners submitted no evidence that established, as a matter
of law, that the circumstances of such a choice not to probate
the 2011 will would render both nominated executors unfit.




Restatement [Second] of Property § 9.2 Comment c), there appears
to be no precedent in this state's jurisprudence or statutes that
would support such a protection from the reach of a no contest
clause.
    8
        Although petitioners also submitted portions of each of
their sworn testimony, that testimony and their other submissions
are unrelated to the fitness of the nominated executors.
                              -22-                 517693

Accordingly, because petitioners failed to meet their prima facie
burden, I would deny summary judgment on the fourth objection
(see generally Matter of Siegel, 90 AD3d 937, 940 [2011], supra)
and would remit for the parties and Surrogate's Court to address
the issue of probable cause.



      ORDERED that the order is affirmed, without costs, and
decedent's May 24, 2011 will is admitted to probate.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
