        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

235
CA 12-01498
PRESENT: CENTRA, J.P., FAHEY, CARNI, LINDLEY, AND WHALEN, JJ.


IN THE MATTER OF THE ESTATE OF HARRY O. LEE,
DECEASED.
--------------------------------------------     MEMORANDUM AND ORDER
LUCINDA GEORGE, PETITIONER-RESPONDENT;

LISA ANANIAS AND THE ESTATE OF GEORGIA LEE,
DECEASED, OBJECTANTS-APPELLANTS.


THE LAMA LAW FIRM, ITHACA (CIANO J. LAMA OF COUNSEL), FOR
OBJECTANTS-APPELLANTS.

J. SCOTT PORTER, SENECA FALLS, FOR PETITIONER-RESPONDENT.


     Appeal from a decree of the Surrogate’s Court, Seneca County
(Dennis F. Bender, S.), entered October 31, 2011. The decree admitted
to probate the last will and testament of Harry O. Lee dated September
14, 2005 and issued letters testamentary to petitioner.

     It is hereby ORDERED that the decree so appealed from is
unanimously affirmed without costs.

     Memorandum: Petitioner filed a petition seeking, inter alia, to
probate the will of Harry O. Lee (decedent) dated September 14, 2005
(2005 will). Objectants filed objections to the probate of the 2005
will, alleging, inter alia, that the 2005 will was procured by undue
influence on the part of petitioner. Following a trial, Surrogate’s
Court denied the objections, admitted the 2005 will to probate and
issued letters testamentary to petitioner. Objectants appeal, and we
affirm.

     We note as background that decedent had three
daughters—petitioner, Georgia Lee and Jennifer Lee-Pryor—and four
grandchildren—petitioner’s three children and Georgia Lee’s daughter,
objectant Lisa Ananias. In 2005, decedent made changes to a will he
executed in 2002. Decedent’s 2002 will provided for a $5,000 bequest
to Unity House of Troy and a $10,000 bequest to each of his four
grandchildren, and further provided that the remainder of the estate
was to be divided equally between his three daughters. Decedent’s
2005 will provided for a $5,000 bequest to Unity House of Troy and a
$10,000 bequest to only three grandchildren, i.e., to petitioner’s
children, and provided that the remainder of his estate was to be
divided equally between Lee-Pryor and petitioner. The 2005 will
stated that decedent made no provisions for his daughter Georgia Lee
“not for any lack of affection for her but because [he had] already
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                                                         CA 12-01498

made adequate provisions for her in the Harry O. Lee revocable inter
vivos trust.” The 2005 will also stated that decedent made no
provisions for his granddaughter Ananias “not for any lack of
affection for her but because she has already received in excess of
any other granddaughter during her and [decedent’s] lifetime.”

     We reject objectants’ contention that petitioner exercised undue
influence over decedent in making the 2005 will. It is well settled
that a will contestant seeking to prove undue influence must show the
“exercise [of] a moral coercion, which restrained independent action
and destroyed free agency, or which, by importunity [that] could not
be resisted, constrained the testator to do that which was against
[his or] h[er] free will” (Matter of Kumstar, 66 NY2d 691, 693, rearg
denied 67 NY2d 647 [internal quotation marks omitted]). “Undue
influence must be proved by evidence of a substantial nature . . . ,
e.g., by evidence identifying the motive, opportunity and acts
allegedly constituting the influence, as well as when and where such
acts occurred” (Matter of Makitra, 101 AD3d 1579, 1581 [internal
quotation marks omitted]). “Mere speculation and conclusory
allegations, without specificity as to precisely where and when the
influence was actually exerted, are insufficient to raise an issue of
fact” (Matter of Walker, 80 AD3d 865, 867, lv denied 16 NY3d 711).

     Here, objectants contend that the will was the product of undue
influence because petitioner was decedent’s power of attorney and
controlled every aspect of decedent’s life at the time that the 2005
will was executed. There is, however, “no direct evidence that
petitioner did anything to actually influence decedent’s distribution
of [his] assets, and [objectants’] speculative assertions are
insufficient” to demonstrate undue influence (id. at 868).
Additionally, decedent’s changes to his will do not constitute an
“unexplained departure from a previously expressed intention of
decedent” (Matter of Walther, 6 NY2d 49, 55). Based upon our review
of the record, we see no reason to disturb the Surrogate’s findings,
“which are entitled to great weight inasmuch as they hinged on the
credibility of the witnesses” (Makitra, 101 AD3d at 1581 [internal
quotation marks omitted]).




Entered:   June 7, 2013                         Frances E. Cafarell
                                                Clerk of the Court
