The Surrogate’s Court, Queens County, in the July 20, 2021 opinion of Matter of Sook Li, denied summary disposition in a New York will contest on the issues of due execution and undue influence because of conflicting evidence, and ordered the matter proceed to trial. New York courts are not shy to grant summary judgment in a will contest ( see here and here) when it is clear that no triable issue of fact exists, and this opinion gives insight into when the court will not make a summary disposition.
The Facts of Matter of Sook Li
Decedent, Sook Li, also known as Sook Jing Li, died on October 4, 2017 at the age of 89 years. She was survived by her three children: son Jin, and daughters Sau and Suey.
The will offered for probate was executed on February 8, 2013. Decedent was 84 years old when she executed the will. The will was prepared by an attorney, (AS), who also supervised its execution. The will on its face complied with testamentary formalities required to make a valid will in New York, and contained a self-proving affidavit.
Pursuant to the will, Jin and Suey were bequeathed the sum of one thousand dollars ($1,000.00), and the remainder of decedent’s estate was devised and bequeathed to Sau, if she survives, otherwise to Jin’s two sons. The will also contained an in terrorem clause, as well as an acknowledgment of the unequal provisions for Jin and Suey, stating that they received material benefits during decedent’s lifetime. Jin and Sau are nominated as co-executors.
The will differs from an earlier purported will of the decedent dated seven years earlier in 2006, which AS also drafted and supervised. Under the prior will, all three of the decedent’s children are treated equally and are nominated as the executors. Of note, Sau is one of the two subscribing witnesses to that document.
Decedent executed a will in 1995, which was prepared and its execution supervised by a different attorney. Of significance, the attestation clause and annexed affidavit of witnesses in this document indicate that the decedent declared the instrument as her will through one of the three witnesses who acted as an interpreter.
Suey objected to the probate of the 2013 will, alleging: (i) the February 8, 2013 paper writing is not decedent’s last will; (ii) the paper writing was not duly executed; (iii) decedent lacked testamentary capacity at the time of execution; (iv) the paper writing is the product of undue influence; (v) the paper writing is the product of fraud; and (vi) the propounded instrument was subsequently revoked.
Everyone moved for summary judgment. The objections pursued on summary judgment were on the issues of due execution of the will, testamentary capacity, and undue influence.
Conflicting Evidence of Due Execution In a New York Will Contest
The court denied summary judgment on the issue of due execution of the will. Due execution of a New York will is usually cut and dry, so the denial of summary judgment on this issue in a will contest means that the conflicting evidence was material.
First, the court reviewed the requirements for creating a valid will in New York:
On the issue of due execution, for a will to be duly executed, the requirements of the statute of wills as set forth in EPTL 3-2.1 must be satisfied. The instrument must be signed by the testator at the end; the testator must sign or acknowledge the signature in the presence of each of the attesting witnesses; the testator must declare to each attesting witness that the instrument is his/her will; there must be at least two attesting witnesses who, at the testator’s request, sign their names and affix their addresses at the end of the instrument (see EPTL 3-2.1[a]-).
Because AS, the attorney-drafter, supervised the execution of the will, and when there is a self-proving clause, there is a presumption of regularity that the instrument was properly executed:
Where an attorney-drafter supervises the execution of the instrument, there is a presumption of regularity that the instrument was properly executed in all respects (see Matter of Hadden, 188 AD3d 686, 687 [2d Dept 2020]; Matter of Farrell, 84 AD3d 1374 [2d Dept 2011]; Matter of Moskoff, 41 AD3d 481, 482 [2d Dept 2007]). A presumption of compliance with the statutory requirements also arises where the propounded instrument contains an attestation clause and self proving affidavit, even where the witnesses are unable to recollect the execution or what took place at the time (see Matter of Collins, 60 NY2d 466, 470 ; Matter of Green, 89 AD3d 941, 943 [2d Dept 2011]; Matter of Finocchio, 270 AD2d 418, 418-419 [2d Dept 2000]).
The court determined that petitioners established a prima facie showing of due execution.
In opposition thereto, Suey claimed that the requirements of the statute were not met because the decedent did not declare to the two witnesses that the instrument she was signing was her will or request that they serve as witnesses, and because the decedent could not communicate understandably in English to know and approve the contents of the instrument she was signing as her will. The Court summarized:
In support thereof, objectant first points to portions of the office receptionist’s examination testimony given in 2019, stating that she did not remember her attendance at the decedent’s will signing in 2013. The witness testified that typically she would be called into the office conference room for the will signing and introduced to the testator. Asked whether she would speak to the testator, or ask them any question, she answered “no”. Specifically with respect to the instant execution ceremony, she was asked the questions, “Did Ms. Li ever ask you to be a witness to her will?” and “Did you ask her if she was signing—what she was signing was her will?,” to which she also answered “no.”
The court noted that an attesting witness does not need to inquire directly of a testator as to the nature of the instrument being signed or ask any other questions of the testator – a third person in the presence of the testator may make the declaration and request on the testator’s behalf. Usually the drafting attorney makes sure everything occurs properly. Here, AS testified that he had no specific recollection of its execution. The other attesting witness, RS, who had supervised many will executions, also had no specific recollection of the instant execution ceremony, including the decedent’s fluency in English.
Suey argued that the will could not have been duly executed by the decedent because she was unable to read, write, or speak English to the extent necessary to indicate that she understood the contents of what she was signing was her will. The court summarized:
In support of her contention, objectant points to 2009 and 2016 extended care and nursing facility records, which note that the decedent spoke “Chinese only” or “Cantonese,” and that translators were employed to facilitate communication and to make her needs known.
Objectant asserts that the portion of the witness affidavit stating that the decedent “in their opinion, could read, write and converse in the English language” is contradicted by the petitioners’ own testimony that the decedent could not read or write in English and, thus, could not have read the purported will. She argues that the witness affidavit submitted is, therefore, insufficient evidence to establish due execution.
There was also a sharp contrast between the testimony of the objectant and her sister as to the decedent’s ability to speak English. Suey testified that the decedent could only speak a few words in English, such as “hello” and “bye.” Sau, on the other hand, testified that the decedent understood “quite a bit of English,” and “now and then” the decedent would have conversations with her in English while watching television at home together. However, asked if she knew whether the decedent understood English enough to execute legal documents, she answered that she didn’t know for sure. Objectant also notes there is evidence from emails that indicates AS communicated with Sau regarding the terms of the proposed will instead of directly with the decedent.
The court noted that a testator’s lack of facility with the English language is not “an insuperable barrier” to a finding of due execution. However, where a testator is not fluent in English, there is a greater burden in establishing that the mind of the testator accompanied the act, and that the instrument executed speaks the testator’s language and expresses the testator’s will. The court stated:
The Court finds the specific evidence presented in this case, especially the documentary evidence from disinterested parties pertaining to the decedent’s lack of facility with English, raises factual questions concerning the circumstances surrounding the execution of the instrument, as well as credibility issues, which may not be summarily determined.
Accordingly, as to the objection of lack of due execution, the motion and cross-motion for summary judgment are both denied.
Conflicting Evidence Of Undue Influence
After reviewing the basics of an undue influence will contest under New York law, the Court reviewed the evidence presented by each side.
In support of their cross-motion for summary judgment, petitioners have submitted the affidavit of the subscribing witnesses annexed to the purported will wherein it is stated that the decedent at the time of its execution was “not under any restraint.” Thus, petitioners have established prima facie the lack of undue influence on their cross-motion (see Matter of DiDomenico, 101 AD3d 998, 1000 [2d Dept 2012]; Matter of Rottkamp, 95 AD3d 1338, 1340 [2d Dept 2012]).
Objectant asserts in opposition that the evidence demonstrates that when the purported will was procured, the decedent was in a frail and weakened condition, living with the petitioners, and dependent upon them for her daily needs, thus putting them in a position of trust and complete influence over the decedent. Objectant also avers that Sau handled all of the decedent’s financial matters.
She also asserts that other circumstances, such as Sau’s intimate involvement with the instructions given to AS concerning the terms of the will, the presence of petitioners during the instrument’s execution, as well as the payment of the attorney’s fee by Sau, are further factors from which an inference of the exercise of undue influence may be drawn. Additionally, objectant notes the deviation in the decedent’s prior testamentary plan from providing for her three children equally to virtually disinheriting one daughter in favor of the other, and alleges that the petitioners never made her aware of the existence of the purported will; that she only learned of it some time later by chance through Jin’s spouse. Sau’s excessive involvement in the drafting process is also highlighted, and documented according to objectant, by counsel’s previously mentioned email correspondence in reference to the decedent’s Parkinson’s condition where it is stated, “. . . This could certainly open up the possibility of a will challenge from your sister in the future. We can discuss this further if you like.”
The petitioners in response assert that the change in the decedent’s testamentary plan was the result of the decedent’s often expressed displeasure with the disproportionate degree of care and assistance she was receiving from the objectant in relation to that provided by her sister. Given this assertion, the nature of the decedent’s dependency and the extent of care and assistance provided by each of the parties are factors also to be considered in addressing the claim of undue influence. The testimony given by the parties, however, presents conflicting evidence as to what care, and the extent thereof, each of the parties provided to the decedent prior to the execution of the propounded will, as well as the degree of financial assistance the decedent received from each them.
The New York court did not grant summary judgment on the issue of undue influence in the will contest, based upon the conflicting evidence, stating:
This conflicting evidence, as well as the issues raised concerning the circumstances attending decedent’s execution of the instrument, and Sau’s direct involvement with the attorney in the preparation of the propounded will that benefits her, creates an inference not only of the existence of motive and opportunity, but also the potential exercise of undue influence in the procurement of the propounded will, which “merit[s] the careful scrutiny that can only be obtained by a full airing of the matter before the trier of fact” (see Matter of Paigo, 53 AD3d 836, 840-841 [3d Dept 2008]; Matter of Elmore, 42 AD2d 240, 241-242 [3d Dept 1973]), Matter of Ramirez, 68 Misc 3d 1207[A] [Sur Ct, Queens County 2020]).
Summary judgment is a useful tool to dispose of issues without the expense and time of a trial. However, as demonstrated by this case, if the evidence is conflicting as to material issues, summary judgment cannot be granted under New York law.