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

136
CA 12-00963
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, WHALEN, AND MARTOCHE, JJ.


IN THE MATTER OF THE ESTATE OF JOHN G.
ALIBRANDI, DECEASED.
-------------------------------------------       MEMORANDUM AND ORDER
MARY BETH ALIBRANDI, PETITIONER-RESPONDENT;

SUSETTE WISE, OBJECTANT-APPELLANT.


MATTHEW D. HUNTER, FOREST HILLS, FOR OBJECTANT-APPELLANT.

THURSTON LAW OFFICE, P.C., AUBURN (EARLE E. THURSTON OF COUNSEL), FOR
PETITIONER-RESPONDENT.


     Appeal from a decree of the Surrogate’s Court, Cayuga County
(Mark H. Fandrich, S.), entered January 19, 2012. The decree, among
other things, admitted decedent’s will to probate.

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

     Memorandum: Preliminary letters testamentary were issued to
petitioner, the daughter of decedent, upon her petition seeking to
probate decedent’s will. Objectant, decedent’s granddaughter, filed
objections to the probate of the will, alleging, inter alia, that
decedent lacked testamentary capacity and that the will was procured
by undue influence on the part of petitioner. Surrogate’s Court
granted petitioner’s motion for summary judgment seeking dismissal of
the objections and, inter alia, admitted decedent’s will to probate.
We affirm.

     “It is the indisputable rule in a will contest that ‘[t]he
proponent has the burden of proving that the testator possessed
testamentary capacity and the [Surrogate] must look to the following
factors: (1) whether []he understood the nature and consequences of
executing a will; (2) whether []he knew the nature and extent of the
property []he was disposing of; and (3) whether []he knew those who
would be considered the natural objects of h[is] bounty and h[is]
relations with them’ ” (Matter of Kumstar, 66 NY2d 691, 692, rearg
denied 67 NY2d 647; see Matter of Castiglione, 40 AD3d 1227, 1228, lv
denied 9 NY3d 806; Matter of McCloskey, 307 AD2d 737, 738, lv denied
100 NY2d 516). “ ‘Mere proof that the decedent suffered from old age,
physical infirmity and . . . dementia when the will was executed is
not necessarily inconsistent with testamentary capacity and does not
alone preclude a finding thereof, as the appropriate inquiry is
whether the decedent was lucid and rational at the time the will was
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                                                         CA 12-00963

made’ ” (Matter of Williams, 13 AD3d 954, 957, lv denied 5 NY3d 705;
see Matter of Makitra, 101 AD3d 1579, 1580; Matter of Murray, 49 AD3d
1003, 1004). “Where there is direct evidence that the decedent
possessed the understanding to make a testamentary disposition, even
‘medical opinion evidence assumes a relatively minor importance’ ”
(Makitra, 101 AD3d at 1580).

     Here, we conclude that, contrary to the contention of objectant,
petitioner met her initial burden of establishing decedent’s
testamentary capacity through the submission of, inter alia, the self-
executing affidavits and the SCPA 1404 hearing testimony of the two
witnesses to the will’s execution, decedent’s longtime attorney and a
paralegal with the attorney’s law firm; the report from a
contemporaneous neurological examination of decedent; and the results
of decedent’s September 2006 Mini-Mental State Examination (MMSE) (see
Murray, 49 AD3d at 1004-1005; Castiglione, 40 AD3d at 1228; Williams,
13 AD3d at 956; see generally Matter of Frank, 249 AD2d 893, 894, lv
denied 92 NY2d 807). The evidence offered by petitioner established
that decedent’s will was the culmination of several months of
discussions among decedent, his financial advisors, and his longtime
attorney. The attorney stated in an affidavit that, throughout those
discussions, decedent “appeared to be of sound mind [and] memory,
fully aware of the value of his estate and the natural objects of his
bounty, focused on and in complete understanding of what he was doing
and that it was his intent to do so[, and] . . . in all respects fully
competent to make a will.” According to the attorney, decedent showed
no signs of lack of cognitive ability or memory loss during that time
period. The paralegal, who also had known decedent for a number of
years, similarly stated in an affidavit that it appeared that decedent
was of sound mind and competent when he executed the will, and that
decedent understood what he was signing (see Williams, 13 AD3d at 956;
see also Kumstar, 66 NY2d at 692; Castiglione, 40 AD3d at 1228).

     Decedent lived independently and made his own legal and financial
decisions from the time that the will was executed in November 2006
until March 2008, when he moved in with petitioner because of his
declining eyesight. The patient history from decedent’s November 2006
neurological examination, which took place just weeks before the will
was executed, states that decedent took care of his own hygiene and,
with assistance due to his vision loss, his finances. In the will,
decedent divided his estate equally among his four then-living
children. According to the attorney, decedent did not include
objectant, a child of decedent’s predeceased daughter, in the will
because he “had already made gifts to her.” Indeed, objectant
confirmed that she had “borrowed” money from decedent in the past.
Further, objectant testified that there was a breakdown in her
relationship with decedent approximately one year before he executed
the will. Thus, the record reflects that decedent “ ‘knew those who
would be considered the natural objects of h[is] bounty and h[is]
relations with them’ ” (Kumstar, 66 NY2d at 692; see Castiglione, 40
AD3d at 1228).

     In opposition to the motion, objectant relied primarily upon
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                                                        CA 12-00963

decedent’s Alzheimer’s diagnosis, the November 2006 neurological
examination, and his MMSE results, none of which raises an issue of
fact as to testamentary capacity (see Murray, 49 AD3d at 1005;
Castiglione, 40 AD3d at 1228; Williams, 13 AD3d at 956-957). As noted
above, a mere diagnosis of Alzheimer’s, dementia, or age-related
memory deficits is not necessarily inconsistent with testamentary
capacity because the relevant inquiry is whether the decedent was
competent at the time the will was executed (see Makitra, 101 AD3d at
1580; Murray, 49 AD3d at 1005; Williams, 13 AD3d at 957). Although
the report from the neurological exam indicates that the 89-year-old
decedent had been diagnosed with Alzheimer’s and that his short-term
memory had reportedly declined over the last several years, the report
also states that decedent communicated normally, was alert and
oriented, spoke articulately and fluently, clearly conveyed ideas,
exhibited good eye contact, and interacted appropriately (see Murray,
49 AD3d at 1005; Williams, 13 AD3d at 956-957). There is nothing in
the report to indicate that decedent was not rational, lucid, or
competent. As for the MMSE, decedent scored two points above the
cutoff for “mild” cognitive impairment. Thus, “having failed to
provide evidentiary support for [objectant’s] allegation that decedent
was incompetent in [November 2006], Surrogate’s Court properly granted
summary judgment [on that issue] in petitioner’s favor” (Murray, 49
AD3d at 1005; see Castiglione, 40 AD3d at 1228).

     We likewise conclude that the Surrogate properly granted that
part of petitioner’s motion for summary judgment dismissing the undue
influence objection. “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
which could not be resisted, constrained the [decedent] to do that
which was against [his] free will” (Makitra, 101 AD3d at 1581, quoting
Kumstar, 66 NY2d at 693 [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” (Makitra, 101 AD3d at 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; see Matter of
Capuano, 93 AD3d 666, 668; see generally Matter of Greenwald, 47 AD3d
1036, 1037-1038). Here, even assuming, arguendo, that objectant
identified a motive and opportunity for petitioner to exert influence
upon decedent, we conclude that “there is no direct evidence that
petitioner did anything to actually influence decedent’s distribution
of [his] assets” (Walker, 80 AD3d at 868). The attorney testified
that he never discussed decedent’s will or estate matters with any
family members during decedent’s lifetime. Petitioner averred that
she “had absolutely nothing to do with [decedent]’s legal and
financial matters in particular as they pertain to his preparation,
direction, and the execution of his [will],” and that she did not
discuss the will with decedent or the attorney prior to its execution.
Petitioner was not present when decedent executed the will, and both
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                                                         CA 12-00963

the attorney and the paralegal stated in their respective affidavits
that he did not appear to be under any restraint or duress at the
time. Finally, objectant last saw or spoke to decedent more than a
year before he executed the will, and she admitted at her deposition
that she had no evidence of undue influence, “just a feeling.”




Entered:   March 15, 2013                       Frances E. Cafarell
                                                Clerk of the Court
