Slip Copy, 2005 WL
3115327 (N.Y.Sur.), 2005 N.Y. Slip Op. 51881(U) Unpublished
Disposition NOTE: THIS OPINION
WILL NOT BE PUBLISHED IN A PRINTED VOLUME. THE DISPOSITION WILL APPEAR IN A
REPORTER TABLE. Surrogates
Court, Nassau County, New York. In the Matter of
the Probate Proceeding, Will of Ruth ZIRINSKY, a/k/a Ruth Zirinsky Spector,
a/k/a Ruth W. Zirinsky, Deceased. No. 329098. Nov. 18, 2005. COUNSEL: Farrell Fritz Caemmerer & Cleary PC,
Uniondale, attorneys for Petitioner. Greenfield, Stein & Senior LLP, New York, Gary Friedman, Esq.
as Guardian Ad Litem. Ruskin Moscou Faltischek PC, Uniondale, Michael Feigenbaum, Esq.
As Guardian Ad Litem. Schwartzapfel Novick Truhowsky & Marcus PC, Huntington,
attorneys for Respondents/Objectants. JUDGE: JOHN B. RIORDAN, J. [*1] Two motions are submitted for decision, each requesting
summary judgement pursuant to CPLR 3212, dismissing objections to the probate
of the Will of Ruth Zirinsky. In the first motion, Robert Zirinsky, as
proponent of the Will, seeks to dismiss objections filed by Linda Zirinsky
Gilbert and Jill Zirinsky Hirsch. In the second motion, Robert Zirinsky seeks
to dismiss the objections filed by the guardian ad litem for the children of
Linda Zirinsky Gilbert and Jill Zirinsky Hirsch. In a cross-motion to the first
motion, Ms. Gilbert and Ms. Hirsch move for an order permitting them to conduct
additional discovery, and thereby denying the motion under CPLR 3212(f). For the reasons that follow, the two motions seeking summary
judgment pursuant to CPLR 3212 are granted. The cross motion is denied. Ruth Zirinsky died a resident of Nassau County on May 29, 2003.
She was survived by three distributees, her adult children Robert Zirinsky,
Linda Zirinsky Gilbert, and Jill Zirinsky Hirsch. She was also survived by her
second husband, a lawyer named George Specter. An instrument dated March 11,
1996, has been offered for probate by Robert (the instrument will be referred
to as the Will). Ms. Gilbert and Ms. Hirsch have filed
objections to the Will, alleging that it was the product of undue influence and
fraud. A guardian ad litem was appointed for the minor children of Ms. Gilbert
and Ms. Hirsch. He also filed the same objections with an additional allegation
that on March 11, 1996, the said testatrix did not know or understand
the contents of the proposed Will. However, that particular objection
has been withdrawn, by virtue of the letter of the guardian ad litem to the
court dated September 27, 2005. When Ruth Zirinsky died on May 29, 2003, she was married to George
Spector, a lawyer. It was Ruths second marriage. She was first
married to Ralph Zirinsky, who died on May 7, 1980. Ruths Will cannot
be understood in isolation from Ralphs estate. Ralph Zirinsky, along
with several members of his extended family, operated a real estate business
that had been in existence for several generations. Ralphs Will was
admitted to probate by this court on August 11, 1980. Under Mr. Zirinskys
Will, his residuary estate was divided into two shares (I and II). Share I was
to be funded with assets that would qualify for the marital deduction then in
effect. Three trusts were established by the Wills Article SECOND,
equally funded by Share I. Each of these three Article SECOND trusts was to be
administered separately and the net income of each was to be paid to Ruth or
applied to her benefit. The trustees were also given the discretion to make
principal payments to Ruth. Ralphs Will made Ruth the donee of a
general testamentary power of appointment of the remainder of the three Article
SECOND trusts. Ralph and Ruths three children were the takers in
default of the exercise of the power of appointment over their respective
portions of the Share I, Article SECOND trusts, albeit via continuing trusts
for their benefit. Share II of Ralphs residuary estate was also
divided into three equal parts under Article THIRD, to be held as separate
sprinkling trusts for the benefit of Ralphs three children (Robert,
Linda, and Jill) and Ruth, who possessed no power of appointment over the
remainder of these trusts. The three Article THIRD trusts continued for the
lives of Ruth and her three children, with the remainder going to the issue of
the three children. The initial co-trustees of these six testamentary trusts
were Robert, Ruth, and Richard Zirinsky, the decedents brother and
Roberts uncle. [*2] Ruths Will that has been offered for probate
purports to exercise her power of appointment, directing that the remainder of
the three Article SECOND trusts be disposed of as part of her residuary estate.
Article FIFTH of Ruths Will bequeaths the residuary as follows:
two-thirds (2/3) in trust for Robert; one-sixth (1/6) for Linda; and one-sixth
(1/6) for Jill. The alleged intent of this unequal distribution, when
considered with the equal distribution under Article THIRD of Ralphs
Will, is to apportion Ralph and Ruths real estate interests so that
Robert obtains a 50% share, Linda a 25%, and Jill a 25%. It is fair to say that
Ruths exercise of her power of appointment is the source of the
objections to Ruths Will. As noted, for several generations the business of the Zirinsky
family has been real estate. When Ralph Zirinsky died in 1980, the gross fair
market value of his real estate interests were said to amount to $1,044,036.00
while the net taxable estate was $463,302.00. At the time of Ralphs
death, Ruth was 48 years old. Robert had recently graduated from law school and
had entered the family business. Over the next twenty-five years the value of
the familys real estate interests grew exponentially. There is a
dispute, however, as to the stewardship of the six testamentary trusts under
Ralphs Will. Robert is a co-trustee for those trusts, in fact the
surviving co-trustee after the death of his mother and his uncle, Richard
Zirinsky. His sisters have filed objections to his accountings of those trusts.
The outcome of those litigations will not change the fact that the real estate
interests have experienced a substantial increase over the years. Summary judgment may be granted only where it is clear that no
triable issue of material fact exists (see, e.g. Alvarez v. Prospect Hosp., 68 N.Y.2d 320
[1986]; Phillips v. Joseph Kantor & Co., 31 N.Y.2d 307
[1972]. The traditional reluctance to grant summary judgment in probate proceedings
has long since passed, and it is now recognized that [a]lthough
summary judgment must be exercised cautiously, it is proper in a contested
probate proceeding where the proponent submits a prima facie case for probate
and the objectant fails to raise any genuine factual issues (Matter
of Minervini, 297 A.D.2d 423, 424 [2002]; Matter of Coniglio, 242 A.D.2d 901
[1997]). Indeed, it is also clear that summary judgment may be granted even
where such proceedings involve issues of a fact-sensitive nature, such as fraud
and undue influence (see, e.g., Matter of Neuman, 14 AD3d 567 [2005]; Matter
of Goldberg, 180 A.D.2d 528 [1992]). Because summary judgment is in derogation of the parties
right to a jury trial, the rubric applied to the courts analysis has
always been issue finding rather than issue
determination (Sillman v. Twentieth Century Fox Film Corp., 3 N.Y.2d 395 [1957]
). Therefore, it is incumbent on the movant to make a prima facie showing that
he or she is entitled to summary judgment as a matter of law (CPLR 3213[b]; Zuckerman
v. City of New York, 49 N.Y.2d 557 [1980]; Friends of Animals v. Associated Fur
Mfrs., 46 N.Y.2d 1065 [1979]). The papers submitted in support of and in
opposition to the motion are scrutinized in a light most favorable to the party
opposing the motion (Robinson v. Strong Memorial Hosp., 98 A.D.2d 976
[1983]). If there is any doubt as to the existence of a triable issue of fact,
then the motion must be denied. [*3] To defeat a motion for summary judgment, the opponent must
assemble and lay bare affirmative proof to demonstrate the existence of a
genuine triable issue of fact (Stainless, Inc. v. Employers Fire Ins. Co., 69 A.D.2d 27 [1979],
affd 49 N.Y.2d 924 [1980]). Allegations must be specific and detailed, substantiated
by evidence in the record; mere conclusory assertions will not suffice (Matter
of Newman, 14AD 3d 567 [2005]). Moreover, the court is required to search
the record when it is engaged in the process of issue finding (Fullan v. 142
E. 27th St. Assocs., 1 NY3d 211 [2004]; Insurance A.G. v. Moor-Jankowski, 77 N.Y.2d 235 [1991]). The instrument offered for probate was executed on March 11, 1996.
Ruth Zirinsky died on May 29, 2003. Except for her final days, Ruth maintained
an active, independent life, living with her second husband, a lawyer, visiting
and socializing with her friends, children, and grandchildren. As noted above,
objections to probate were filed by the decedents daughters, Linda
Zirinsky Gilbert and Jill Zirinsky Hirsch, and by the guardian ad litem for
their children, who are adversely affected by the exercise of the testamentary
of appointment. They allege that the Will was the product of fraud and/or undue
influence. The court notes that the objectants would have the affirmative burden
of proof at trial as to fraud and undue influence (see Matter of Bustanoby, 262 A.D.2d 407
[1999]). It will be useful to keep these trial burdens in mind in the
following analysis. Regarding the trial of this matter, it will be relevant to
a portion of this decision to note that this court wrote in its decision of May
18, 2005: [t]he petition to probate the instrument said to be the last Will of Ruth Zirinsky was filed with the court on July 31, 2003. The parties have had adequate time to prepare their cases and are advised that the interest of all concerned are best served not by tangential litigation but by an expeditious trial of the probate issues. Therefore, this matter is hereby scheduled for trial commencing on November 28, 2005. The final pre-trial conference is scheduled for Wednesday, November 2, 2005 at 9:30 a.m. A compliance conference is also scheduled for Wednesday, August 11, 2005, [should read August 10] at 9:30 a.m. Any motions for summary judgment will be scheduled at this conference. (Decision No. 481) As is evident in the record, and bears repeating here, the
Zirinsky family has been involved in the real estate business for several
generations. When Robert graduated from law school, he entered the business
with his father. When his father died in 1980, Robert, along with his mother,
Ruth, and uncle, Richard, became co-trustees of the six testamentary trusts
that controlled the family real estate interests. There is no evidence that
Roberts sisters Jill and Linda ever took an active role in the family
business. Although it is clear in the record that Robert took the lead in
managing the trusts and the underlying real estate interests (and his sisters
would certainly be estopped from asserting the contrary, by virtue of their
objections to the trust accountings) the evidence is equally clear that Robert
and his mother enjoyed a mother-child relationship with open communications
between them on all matters. In fact, Ruth asked her son for a recommendation
when she decided to update her estate planning (her previous Will was
approximately fifteen years old). Loeb & Loeb had represented various
members of the extended family real estate interests. On behalf of Ruth, Robert
asked Michael Beck, a Loeb & Loeb partner, for a recommendation on a trusts
and estates specialist. Jerome Levine, another partner at Loeb & Loeb, was
recommended. Mr. Levine is a fellow of the American College of Trusts and
Estates Counsel. Robert and Ruth were both familiar with Mr. Levine from social
gatherings with Roberts uncle Richard. [*4] Ruths discussions with Robert on this topic began
in August 1995. Ruth was diagnosed with non-Hodgkins lymphoma in April 1995 and
began treatment for this condition in June. Although unnecessary to this
decision, one can reasonablely conclude that estate planning was on Ruths
mind during the summer of 1995. There is no evidence whatsoever that Ruths
desire to update her estate plan was the product of an intent other than her
own. Ruth first met with Mr. Levine on December 1, 1995, and commenced a
lengthy process of meetings and drafting that culminated in the Will now before
the court and the execution ceremony on March 11, 1996. When Ruth first met with Jerome Levine on December 1, 1995, Robert
and Michael Beck were initially at the meeting. When discussions of a general
nature relating to the family business turned to Ruths testamentary
intentions, she informed Mr. Levine that she intended to exercise her power of
appointment in such a way as to give Robert a 50% stake in the real estate
holdings, as held through the trusts. At this point, Mr. Levine testified that
he asked Robert and Mr. Beck to leave the meeting, so that he could continue to
discuss the matter with Ruth alone. Mr. Levine testified that from December 1,
1995, until the Will was executed on March 11, 1996, he met with Ruth Zirinsky
(either in person or by telephone) a total of eighteen times to discuss the
several drafts of the Will, along with other related testamentary and estate
planning topics. The objectants to the Will raise many questions about this
process, but the court finds them to be insignificant. For example, billing
records from Loeb & Loeb may not agree with some of Mr. Levines
testimony, or that Ruths calendar may not contain entries of meetings.
The reality is quite clear and uncontroverted that Ruth was a knowledgeable and
active participant in her own estate planning. She was at all times lucid,
competent, and knowledgeable, befitting her status as co-trustee of the various
trusts and her position as an upper-middle class person who enjoyed traveling
with her second husband and visiting with her children and grandchildren. She
even drew pie charts to instruct her counsel how she expected the 2/3-1/6-1/6
exercise of her power of appointment would result in the desired 1/2-1/4-1/4
interest in the real estate. The objectants do not controvert the fact that
there was a rational basis to Ruths plan. After all, neither sister
ever claimed to have had any involvement in managing the family real estate. In
fact, it cannot be denied that from at least 1980 onward, Robert Zirinsky was
the prime manager of the interests held by the trusts. Ruth, of course, was a
co-trustee of the testamentary trusts that controlled the real estate and the
record indicates that she took a passing interest in the business affairs of
the properties. Of course, there are some serious allegations about the
management of these interests by Robert by virtue of his role as controlling
co-trustee of the various testamentary trusts. Nevertheless, these issues are
being litigated in the contested accountings and are not relevant, by virtue of
the time frames involved, to this probate contest. [*5] Mr. Levine testified that, despite the diagnosis of
lymphoma and the chemotherapy for its treatment, he found Ruth to be at all
times to be an intelligent, competent, willful, and capable person. This
opinion is amply supported by the various affidavits submitted in support of
the motions, ranging from her treating physicians to her live-in housekeeper of
many years to her sister. Indeed, one of the objectants even eulogized her
mother in a complementary fashion that hardly describes a person subject to
undue influence or even fraud. The court notes that at all times relevant to
this matter Ruth maintained her own residence and was fully available to her
children and their children. Her housekeeper of many years testified that the
decedent was an independent and opinionated person with all her children
receiving, in due turn, their fair share of normal maternal criticism. There came a time during the drafting process when Ruth wanted to
explain her exercise of the power of appointment to her children. Mr. Levine
testified that he advised her to do it while she was alive, either orally or in
writing. Mrs. Zirinsky declined. Nevertheless, Ruth did agree to draft an
explanatory letter that would be delivered to her children after her death. She
requested Mr. Levines help in framing her thoughts. After much
thought and several drafts, Ruth settled on a letter that she executed on March
11, 1996, along with her Will. The letter provides: At the time that your father died, he did not address succession of the family real estate business. Robert had only recently begun to work with your father when he became ill. Soon thereafter he signed a Will which left all of the business interests in trust for me. In that Will, upon my death, the real estate business would be divided into equal shares for the benefit of the three of you and your families. After your fathers death, Robert has assumed the entire burden of managing the business. I have watched with pride as the value of the business has grown steadily at a time when many New York real estate families have suffered. We have all benefitted from Roberts efforts. Under your fathers Will, I control the disposition of one-half of Ralph Zirinsky Real Estate Company. The other one-half will continue to be held by three equal trust for each of you. I believe that it is both equitable and in the long term interest of the business that Robert, as the only active partner, own a larger share than Linda and Jill. I have concluded that Robert and his family own 50% interest in Ralph Zirinsky Real Estate Company. In order to accomplish that result, I have provided in my Will that Robert and his family shall receive 2/3 of my residuary estate. In this way, he will receive 2/3 of 50% of the business under my will and 1/3 of 50% of the business under your fathers will. The resulting ownership of Ralph Zirinsky Real Estate Company will be 50% to Roberts family and 25% to each of Lindas family and Jills family. [*6] I hope you will all understand the difficulty I faced in making this decision. I have done what I believe is fair and trust you will appreciate that I love you equally. Mr. Levine testified (deposition transcript pp 131-135) about Ruth Zirinskys thought processes on this letter and her Will: Q. What are the differences between the two [drafts of the letter], that is, between Exhibit 15 and the letter that was signed? A. One change was that Ruth advised me and asked me to insert into the letter the fact that after Ralphs death, she seriously considered selling all of the real estate, it was not worth a great deal at that time, and she was recognizing she could not manage it and run it herself, and that only if Robert would remain in the real estate business, and run it, would she be able to continue with it, and she asked me to reflect in the letter the fact that if Robert had not been around and agreed to devote his life to the real estate business, that all those real estate assets would have been sold at that time. Ruth Zirinskys single intent was to have Robert obtain the greater share of the family real estate interests. The evidence indicates that it went no further and that Ruth otherwise tried to be as equal as possible in her treatment of her children and grandchildren. When Mr. Levine at Loeb & Loeb suggested an in terrorem clause for her Will, Mrs. Zirinsky declined. When Mr. Levine explained to Ruth the adverse tax consequences of her Will to Robert, she declined to change the result. Mr. Levine testified at his deposition (at pp. 134-137 of his transcript) as follows: Q. What was said on the subject of tax allocation between the two of you? A. I explained to her that there was a that when we when she described her desire to have the family business pass 50 percent, 25 percent and 25 percent, there would be a material distinction between whether that 50 percent, 25 percent, 25 percent was gross of estate taxes or net of estate taxes, since her power of appointment need to be exercised in different proportions in order to get to 50 percent, 25 percent and 25 percent. I would have given her a numerical example to explain what I meant, but the basic point, which was important for her to understand and make a decision on, was whether the estate taxes were going to be borne in proportion to the residuary estate, which was two thirds, one sixth and one sixth, or 50 percent, 25 percent and 25 percent, and what I explained to her was that if the allocation of estate taxes turned out to be consistent with the residuary estate, that while Robert would end up with 50 percent of Ralph Zirinsky Realty, and or a trust for the benefit of, rather, and a trust for each of the other two children would end up with 25 percent of Ralph Zirinsky Realty, the obligation to pay the estate taxes would end up being borne consistent with the residue, and two thirds of it, as she ultimately directed me to do, would be paid from the trust for Robert and his family, and one sixth each for the benefit of Jill and Linda. [*7] So she understood that although the real estate interests were going to end up at 50 percent, 25 percent and 25 percent, the tax obligation, in effect, would have meant that on a net of estate tax-basis, Roberts trust share would have been less than 50 percent and each of the other trust shares would end up being more than 25 percent. Q. And the reason for that is because Roberts trust share bears a larger proportion of tax; right? A. Yes, but shewanted to be clear with her, make sure she understood I could do the tax allocation either way, and I wanted to know from her whether she thought it was fair that the tax be born 50, 25, 25 or two-thirds, one-sixth, one sixth. She instructed me to do it two-thirds, one-sixth and one-sixth. Q. Exhibit 2-A, that single sheet of notes that did not have a date, is that reflective of one or more conversations with her as well? A. Yes. The first objection to the Will was that it was the product of undue influence exerted by Robert over his mother. The objectants have the burden of proof on this issue (Matter of Bustanoby, 262 A.D.2d 407 [1999]; Matter of Gross, 242 A.D.2d 333 [1997], lv denied, 90 N.Y.2d 812 [1997]). To establish the undue influence claim, objectants must show by a preponderance of the credible evidence: (1) the existence and exercise of undue influence; (2) the effective operation of undue influence as to subvert the mind of the testatrix at the time of the execution of the Will; and (3) the execution of a Will that, but for undue influence, would not have occurred. The three elements of undue influence have also been described as motive, opportunity, and the actual exercise of undue influence (Matter of Walther, 6 N.Y.2d 49 [1959]). In order for objectants to carry their burden with respect to this issue, they must demonstrate not only the existence of opportunity and motive but the actual exercise of undue influence (Matter of Fiumara, 47 N.Y.2d 845 [1997]; Matter of Walther, 6 N.Y.2d 49 [1959]; Matter of Holly, 16 A.D.2d 611 [1962], affd, 13 N.Y.2d 746 [1963], Matter of Foranoce, NYLJ, August 7, 2000, at 25). As to what actions constitute undue influence, this classic formulation still resonates in the case law: [i]t must be shown that the influence exercised amounted to a moral coercion which restrained independent action and destroyed free agency [i]t must not be the promptings of affection; the desire of gratifying the wishes of another; the ties of attachment arising from consanguinity, or the memory of kind acts and friendly offices, but a coercion produced by importunity, or by a silent, resistless power which the strong will often exercises over the weak and infirm, and which could not be resisted, so that the motive was tantamount to force or fear. (Childrens Aid Society v. Loveridge, 70 N.Y. 387, 394 [1877]; see also Matter of Kumstar, 66 N.Y.2d 691 [1985]; Matter of Weltz, 16 AD3d 428 [2005]. In fact, much of this language has been adopted by the New York Pattern Jury Instructions as the model for the statement of the law [PJI 7:56].) [*8] The court recognizes that undue influence is rarely proven by direct evidence and is usually proven by circumstantial evidence (Matter of Walther, 6 N.Y.2d 49 [1959]; Rollwagen v. Rollwagen, 63 N.Y. 504 [1875]; Matter of Burke, 82 A.D.2d 260 [1981]). Among the factors that have been held to indicate the exercise of undue influence are: 1. the physical and mental condition of the testatrix (Childrens Aid Society v. Loveridge, 70 N.Y. 387 [1877]; Matter of Woodward, 167 N.Y. 28 [1901]; Matter of Callahan, 155 A.D.2d 454 [1989]; Matter of Gnirrep, 2 A.D.2d 404 [1956]); 2. whether the attorney who drafted the will was the testatrixs attorney (Matter of Elmore, 42 A.D.2d 240 [1973]); 3. whether the propounded instrument deviates from the testators prior testamentary pattern (Matter of Kruszelnicki, 23 A.D.2d 622 [1965]; 4. whether the person who allegedly wielded undue influence was in a position of trust (Matter of Elmore, 42 A.D.2d 240 [1973]); 5. whether testator was isolated from the objects of his natural affection (Matter of Burke, 82 A.D.2d 260 [1981]; Matter of Kaufman, 20 A.D.2d 464 [1964], affd 15 N.Y.2d 825 [1965]). With all this in mind, it is also important to remember that in order to defeat a motion for summary judgment, the objectant must demonstrate that there is a genuine triable issue by allegations which are specific and detailed, substantiated by evidence in the record and that mere conclusory assertions will not suffice (Matter of OHara, 85 A.D.2d 669, 671 [1981]). The objectants argue that the confidential relationship that allegedly existed between Robert and his mother, together with Roberts involvement in Ruths financial affairs is sufficient to deny the motions for summary judgment. The court disagrees. The facts presented on the motion reveal nothing more than a typical parent-child relationship. It is clear that Ruth Zirinsky lived an independent life and that Roberts involvement with her affairs was no more than incidental, given their particular circumstances and the facts attendant to a typical mother-son relationship. This fact should be kept in mind, because the objectants efforts to portray the relationship as confidential, as that term is defined in this context, is belied by the family relationship, not to mention the facts themselves. The law recognizes that a close family relationship counterbalances any contrary legal presumption; and explanation by the beneficiary is not required (N.Y. PJI 7:56, citing Matter Of Walther, 6 N.Y.2d 49 [1959], Matter of Moskowitz, 279 AD 660 [1951]). A confidential relationship may be inferred if one party has disparate power over the other (Ten Eyck v. Whitbeck, 156 N.Y. 341 [1898]), such as the power of an attorney, guardian, clergymen, doctor or nursing home director. Generally, no presumption of undue influence can be drawn solely from the relationship between the decedent and her child because a sense of family duty is inexplicably intertwined in this relationship (Matter of Walther, 6 N.Y.2d 49 [1959] ). [*9] The objectants point to several instances of Roberts active involvement in his mothers financial affairs, including her generosity to him regarding gifts, and his assistance with her bills and income. Moreover, there is some indication that Ruth may have asked Robert for some input during the Will-drafting process. However, none of these facts, assumed to be true for purposes of this motion, rise to the level of showing Robert actually exercised undue influence over his mother or that he defrauded her. Therefore, while it is clear that a close family relationship operates to negate an inference of undue influence, even if the court applied such an inference, the record is devoid of any fact whatsoever that Roberts conduct amounted to a moral coercion, which restrained independent action and destroyed free agency (Childrens Aid Society v. Loveridge, 70 N.Y. 387, 394-395 [1877]). The physical and mental condition of the testatrix is a leading factor when considering undue influence (Childrens Aid Society v. Loveridge, 70 N.Y. 387 [1877]; Matter of Woodward, 167 N.Y. 28 [1901]; Matter of Callahan, 155 A.D.2d 454 [1989]). If there is one fact that is unassailable in this motion it is that Ruth Zirinsky faced her medical challenges bravely and in such a way that did not diminish her mental or physical capacity. The objectants ask the court to take judicial notice of the debilitating effects of chemotherapy. Not only is such notice unwarranted on the law, it is clearly belied by the evidence. Ruth Zirinsky may have been diagnosed with lymphoma a few months before her initial meeting with Jerome Levine, but the facts submitted on this motion clearly illustrate her knowledgeable, competent, and active participation in her estate planning. Medical records, affidavits from treating physicians, deposition testimony (even from objectants) all point to the decedent being fully capable and in charge of her affairs during the relevant time. There is no proof that objectants were in any manner shut out of decedents life by petitioner (see, Matter of Delyanis, 252 A.D.2d 585). Indeed, one thing that the record impresses upon the court was the independence of the decedent during the relevant times, and the continuing relationship she enjoyed with all her children and grandchildren. Thus, on this point, objectants have failed to demonstrate the actual exercise of undue influence (Matter of Foranoce, NYLJ, August 7, 2000, at 25, col 6; citing, Matter of Fiumara, 47 N.Y.2d 845; Matter of Walther, 6 N.Y.2d 49 [1959]). Another factor the courts look to in these analyses is the identity of the attorney-drafter of the Will. It has been held that where a Will has been prepared by an attorney associated with a beneficiary, that relationship must be explained and it is a question of fact whether undue influence existed if that relationship is not adequately explained (Matter of Elmore, 42 A.D.2d 240 [1973]). The facts relevant to this analysis are clear. Jerome Levine had no professional or personal relationship with Robert Zirinsky. Mr. Levine was friendly with members of the extended Zirinsky family. While Michael Beck of Loeb & Loeb did recommend Mr. Levine to Robert, said inquiry was clearly prompted by Ruth and that Ruths subsequent relationship with Mr. Levine was fully independent of any actual showing of Roberts influence. [*10] The objectants point to some evidence that Robert was privy to one of the drafts of the Will, but even if he was consulted by his mother, such an act is a far cry from the moral coercion contemplated by the law of undue influence and merely demonstrates what is incontrovertible, that Robert and Ruth were close and active participants in the Zirinsky family business and that his mother trusted Roberts business acumen and advice. Indeed, the facts clearly demonstrate that Ruths Will was the independent product of her own plans and desires. For example, the Will did not contain as in terrorem clause, despite its suggestion by Mr. Levine and its obvious advantages to Robert (as Ruth expressed, it was her desire that her children preserve an amicable relationship even if she intended to have Robert maintain his lead position in the business). The Will names one of the daughters, Jill, as successor executor and trustee. The Will also required the payment of the estate taxes from the residuary, resulting in two-thirds of the estate taxes being paid from Roberts trust, an outcome that could have easily been avoided in Roberts favor, as described above. The deposition testimony of Ruths sister, Sara Wind, readily demonstrates the independence and control Ruth exercised over her affairs. Ruths long-term, live-in maid testified at deposition that Ruth frequently complained to her about Robert and the infrequency of his calls to her and visits with her grandchildren to her house (M. Widman transcript, pages 30-35). The mere association of Jerome Levine with Michael Beck and the latters work on behalf of Zirinsky family interests is, on these facts, insufficient to show a triable issue of fact or undue influence (cf. Matter of Seelig, 13 AD3d 776 [2004] and Matter of Gerdjikian, 8 AD3d 277 [2004]). Nor is it dispositive that Ruth might have asked Roberts advice during the lengthy drafting process. Any such advice fully comports with their relationship. In this regard, Matter of Seelig (13 AD3d 776 [2004]) is clearly on point and persuasive. In that case, the decedent named a hospital as the residuary beneficiary. Objections of fraud and undue influence were dismissed by the Second Department under facts even stronger for the objectant than are present here. Prior to the wills execution in Matter of Seelig, 13 AD3d 776 [2004], the proponent/hospital director drafted a charitable remainder trust for decedents signature. The decedent refused to sign the CRUT because he expressed a desire to have more control over his assets. The court determined that the decedents rejection of the CRUT demonstrated that the proponent/hospital director did not have the ability to unduly influence the decedent. Summary judgment was granted by the Surrogate and affirmed by the Second Department despite the fact that there were inconsistencies in the testimony regarding whether the proponent/hospital director or the decedent chose the drafting attorney to represent the decedent. Moreover, the Will was signed just two days after the drafting attorney had his first meeting with his client, and the proponent/hospital director was present at the execution. If the facts in Seelig (13 AD3d 776 [2004]) merited summary judgment, then the instant facts are even more worthy of summary judgment on the issue of the relationship between Robert Zirinsky and Loeb & Loeb. [*11] The third factor in the analysis is whether the propounded instrument deviates from the testatrixs prior testamentary pattern (Matter of Kruszelnicki, 23 A.D.2d 622 [1965]). Ruths prior Will was executed in 1980 and did treat the three children equally. However, the propounded Will and the decedents other estate plans clearly evince an intent to treat the children and grandchildren as equally as possible all the while giving Robert a controlling stake in the business that he managed and developed for many years. The sum total of the circumstances here do not allow the mere fact of disparate treatment in this Will, considered in isolation, to give rise to an issue of fact. The final two factors in this part of the analysis may be
considered together, i.e., whether the person who allegedly exercised undue
influence was in a position of trust (Matter of Elmore, 42 A.D.2d 240 [1973]
) or whether the testatrix was isolated from the objects of her natural
affection (Matter of Burke, 82 A.D.2d 260 [1981]; Matter of Kaufman, 20 A.D.2d 464 [1964],
affd 15 N.Y.2d 825 [1965]). These factors dovetail with the evidentiary impact
that attaches to a finding of a confidential relationship. The law is clear
that when the person alleged to have exercised undue influence is in a
confidential relationship with the testatrix, then an inference arises that the
influence was undue (Matter of Bartel, 214 A.D.2d 476 [1995]). The finding of a
confidential relationship is considered the kind of fact-based issue that
usually precludes summary judgment (Matter of Bach, 133 A.D.2d 455
[1987]). If a confidential relationship existed between the decedent and
the proponent, then an inference of undue influence arises and the proponent
therefore has the burden of going forward with evidence supporting an alternate
explanation for the decedents largesse (Matter of Braiger, NYLJ, April 28, 2005
at 28; 3 Warrens Heaton on Surrogates Court Practice
§ 42.07[1] [6th ed.]). It is generally considered a question of fact
whether the alternate explanation offered by the proponent is adequate (Matter
of Elmore, 42 A.D.2d 240 [1973]). However, the courts have not been
reluctant to grant summary judgment in this area where the result is warranted
by the facts (Matter of Braiger, NYLJ, April 28, 2005 at 28; Matter of Jarsky,
NYLJ, Aug. 25, 2003 at 26; Matter of Waltz, NYLJ, March 27, 2003 at 22, affd 16
AD3d 428; Matter of Krugman, NYLJ, Aug. 19, 2002 at 30). A confidential relationship maybe inferred if the party so charged
has disparate power and control over the decedent (Ten Eyck v. Whitbeck, 156 N.Y. 341 [1898]
), such as a power of attorney, guardian, doctor, etc. However, even in the
case of a guardian or attorney, a close family relationship may counterbalance
any legal presumption, even to the point of dispensing with the need of an
alternate explanation for the Will (N.Y. PJI 7:56 [2005 ed], citing Matter
of Walther, 6 N.Y.2d 49 [1959] (committee and ward were sisters); Matter
of Carmac, 300 A.D.2d 11 [2000] (attorney and client were son and father);
Matter of Moskowitz, 279 AD 660 [1951] (physician and patient were daughter and
mother); Matter of Weltz, NYLJ, March 27, 2003 at 22, affd 16 AD3d 428 [2005]
(proponent and decedent were son and mother)). Indeed, it has been held that
even if a confidential relationship has been established, the presence of a
family relationship is generally sufficient to rebut any adverse inference (Matter
of Swain, 125 A.D.2d 574 [1986], lv denied 69 N.Y.2d 611 [1987]; Matter
of Braiger, NYLJ, April 28, 2005 at 28; Matter of Guide, NYLJ, October 28,
1998 at 33). [*12] In this case, there is some evidence of a confidential
relationship between mother and son (a power of attorney, assistance with some
finances, etc.). However, as Surrogate Roth wrote in Matter of Braiger (N.Y.LJ, April 28,
2005 at 28), even if a confidential relationship existed between
decedent and proponent and undue influence can be inferred, proponent has
effectively offset such inference with ample evidence establishing that
decedent was animated by something other than undue influence
The same result is called for here. For example, in Matter of Guide, (N.Y.LJ, Oct. 28,
1998 at 33), this court wrote that there must be some evidence that
the confidential relationship was utilized to influence the testatrixs
wishes or the [will drafting] process. Absent such evidence, the inference of
undue influence does not arise and the burden never shifts to the beneficiary
to explain the bequest. There is no such evidence here. The evidence is more than sufficient to explain Ruth Zirinskys
testamentary plan, regardless of the outcome of an analysis based upon a
confidential relationship. The salient bit of evidence in this regard is Ruths
letter to her children that she considered of such importance so as to request
Mr. Levine to help her draft it. It describes her decision-making process in
exercising her power of appointment. The evidence submitted by the objectants
does no more than to establish the normal and expected interaction between a
mother and child. Indeed, the record is replete with instances of Ruth Zirinksys
close relationship with all her children. Ironically, Ruth Zirinksys
decision to delay delivery of her letter to her children proved prescient,
because it caused the very acrimony she feared in life. Her decision to delay
the letters deliverance until after her death was a rational and
understandable desire to maintain harmonious family relations for the remaining
years of her life. To sum up the undue influence analysis, it is well-settled that
any influence based upon gratitude, consanguinity, or affection is not
necessarily or even presumptively undue (Matter of Swain, 125 A.D.2d 574, 575
[1986]). In Swain, the Second Department wrote that [the] sense of
family duty is inexplicably intertwined in this relationship [mother-daughter]
which, under the circumstances, counterbalances any contrary legal presumption
that might otherwise exist. Without a showing that undue influence was actually
exerted upon the decedent, mere speculation that opportunity and motive existed
is insufficient to defeat summary judgment. The mere allegation of a
confidential relationship is likewise insufficient to preclude summary judgment
(Matter of Bustanoby, NYLJ, Dec. 30, 1997, at 28, affd 262 A.D.2d 407 [1998].
As pointed out by this court in the Matter of Bustanoby (N.Y.LJ, Dec. 30, 1997
at 28), the courts must consider the totality of the circumstances when
considering these issues. The relationship between Robert and his mother as
evidenced by the facts, and even when considered in the light most favorable to
the objectants, does not rise to the level of creating a material issue of
fact. Therefore, the proponents motions for summary judgment as to
undue influence are granted. [*13] As to the allegations of fraud, the objectants claim that
the petitioner misled their mother about his management of the familys
real estate interests and that as a result Ruth decided to favor Robert in her
Will. Although frequently joined, the concepts of undue influence and
fraud are distinct. To prove fraud, and the objectants bear the burden on this
issue, it must be shown that the proponent knowingly made a false
statement that caused decedent to execute a will that disposed of his [or her]
property in a manner different from the disposition he [or she] would have made
in the absence of that statement (Matter of Clopper, 279 A.D.2d 730, 732
[2001]). Moreover, a finding of fraud must be supported by clear and
convincing evidence (Simcusky v. Salli, 44 N.Y.2d 442 [1978]; Matter of DAgostino, 284 A.D.2d 857
[2001]. As with allegations of undue influence, in order to defeat the motion
for summary judgment on the issue of fraud, the objectants must come forward
with more than mere conclusory allegations and speculation
(Matter of Seelig, 13 AD3d 776,777 [2004]). Indeed, to defeat a motion for summary
judgment as to fraud the objectants must come forward with sufficient evidence
to show that there is an issue of fact to the effect that Robert made a false
statement or statements to Ruth to induce her to make this Will, that Ruth
believed the statement, and that without such statement the propounded Will
would not have been executed (N.Y. PJI 7:60). As with undue influence, a
showing of motive and opportunity to mislead are insufficient; actual
misrepresentation is necessary (Matter of Gross, 242 A.D.2d 333
[1977]). The objectants have failed to come forward with anything more than
unsupported conjecture regarding compensation taken by Robert from the trusts
over the years relevant to the Wills execution. Of course, Roberts
conduct as co-trustee is being challenged in the contested accountings now
before the court. None of the objectants arguments rise to the level
of creating a triable issue of material fact. The objectants link Roberts
various alleged defalcations to the text of Ruths post-mortem letter
of explanation to her children where she stated that [w]e have all
benefitted from Roberts efforts. In other words, the
objectants allege that Robert lied about the financial condition of the trusts
and their income from it. The court notes that Ruth was a co-trustee of these
trusts. It further notes that the accountings display a substantial increase in
values of the properties held by those trusts. Therefore, whatever may be proved
against Robert at the accountings does not minimize the fact that the family
real estate holdings experienced significant growth during Roberts
tenure, that Ruth was also a co-trustee with access to the relevant data, and
that Ruth described her gratitude to Robert for taking over the real estate
business and thereby prevented Ruths forced sale of those interests
when Ralph died in 1980. The objectants allegations are merely
unsupported conjecture. [*14] Without even a minimal showing of fraudulent misrepresentation,
the opposition to summary judgment on the issue of fraud must fail. The guardian ad litem for the infant children of Linda Zirinsky
Gilbert and Jill Zirinsky Hirsch raised a third basis to deny the Wills
admission to probate. He alleged Ruth Zirinsky did not understand or appreciate
the meaning and significance of the terms of her Will. However, this objection
has been withdrawn. Based upon the foregoing, the objections to the probate of Ruth
Zirinksys Will are dismissed. The objectants cross-motion
for additional discovery is denied as moot. As the court noted in the decision
quoted at the beginning of this opinion, this litigation was put on an
expedited discovery schedule with strict time limits, on the consent and at the
request of the parties. The papers submitted on the motions themselves give
testimony to the extent of discovery conducted by all the parties. Under the
circumstances of this case, the mere hope by the objectants that they might be
able to uncover some evidence during further discovery is insufficient to deny
summary judgment to the proponent (Kershis v. City of New York, 303 A.D.2d 643
[2003]). The guardians ad litem shall submit their affidavits of service
for review. Their fees shall be affixed at the foot of the decree and they
shall be paid by the estate within thirty (30) days of the date of that decree. Settle decree. |