Probate, trust, guardianship and inheritance litigation
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Summary Judgment Denying Challenge to Probate of New York Will

The Surrogate’s Court of New York, Queens County, in Matter of Fiorentino, granted summary judgment in favor of the probate of a New York Will in a December 2019 opinion.  Summary judgment was granted over a challenge to the probate of the New York will based on undue influence, lack of due execution, lack of testamentary capacity, and fraud.

Decedent died at the end of 2017.  Decedent’s sister-in-law moved for summary judgment seeking to have a July 3, 2014 will admitted to probate, and dismissing the objections filed by Decedent’s sister and next of kin, Mary.

Decedent’s will nominated his son Frank as executor and trustee.  The will named decedent’s sister-in-law Carmela as successor executor and trustee.  Frank was alive when the will was executed in 2014, but predeceased Decedent.   The will poured over into a trust, which provided that Frank was the beneficiary, but if Frank predeceased the Decedent, then Decedent’s assets would go to Carmela.  If Carmela predeceased Decedent, the assets would go to St. Jude’s.

The Drafting and Execution of the 2014 Will in New York

The 2014 Will was attorney-drafted.  The same attorney had also drafted a  2011 will which left everything to Frank and then to Carmela.  The attorney testified that:

the addition of St. Jude’s was part of decedent’s plan to exclude the possibility of his sibling inheriting anything in the event his designated beneficiaries predeceased.

The attorney also testified that:

  • Decedent wanted to take care of his son Frank;
  • Decedent intensely disliked Mary, in part because Mary had sued Decedent for partition of property that Decedent and Mary owned, while Decedent lived there;
  • Decedent said that he did not want anything to go to Mary, and that Mary was mean to him his entire life.
  • Decedent met with the attorney alone, prepared a list of assets, and a family tree was prepared

Summary Judgment in a Contested Probate Proceeding

Mary challenged the probate of the New York will on the ground that it was not decedent’s will, was not duly executed, that decedent lacked testamentary capacity to make a will, and that it was the product of undue influence.

Carmela sought summary judgment on Mary’s objections, and probate of the 2014 New York Will.

The court considered Mary’s objections in turn, and determined that the record evidence supported summary judgment in favor of Carmela and the probate of the Will.

Lack of Due Execution

Carmela, the proponent of the will, upon the testimony of the attorney draftsperson and documents, established that the will was duly executed.

Mary submitted affidavits as to the lack of execution by the Decedent, based upon speculation, not personal knowledge.

Therefore, Mary created no issue of fact as to the lack of due execution of the will.

Lack of Testamentary Capacity

Mary submitted in an affidavit that decedent lacked testamentary capacity because she believes her brother was not aware of the object of his bounty because she was a close relative and there was no expression set forth in the will that it was his intent to specifically exclude her.

Under New York law, there exists no requirement that will explain the disinheritance of a family member.

The mere surmise of lack of capacity in the affidavits was not enough to bar summary judgment.

Undue Influence

Mary alleged undue influence by the decedent’s son Frank.  Again, Frank was alive at the time the will was executed, but died before the Decedent.  In New York probate litigation:

For the will to be denied probate based upon undue influence, it must be shown that the influence exercised “amounted 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.

Mary and her daughter submitted affidavits regarding Frank’s stabling of the Decedent many years prior to the execution of the Will, and assorted other statements of duress exerted by Frank.  The court viewed the import of the affidavits as tenuous.  The court also recognized that the focus on Frank and the assault was a red herring, since Frank predeceased the decedent and did not benefit under the will.

The court posed the real question of undue influence as follows:

The real issue in dispute, rather, is whether decedent was subject to undue influence or duress in the selection of his sister-in-law, who is the sole beneficiary pursuant to the will and trust, rather than Mary. Objectant offers absolutely no evidence that Frank exerted any undue influence or duress over decedent in his choice of Carmella as a beneficiary rather than Mary. Without a showing that undue influence was actually exerted, the mere speculation of a motive and opportunity is insufficient.


Mary also challenged the probate of the New York will on the basis of fraud.

To deny the probate of a will based on fraud in New York, there must be evidence of a false statement knowingly made by an individual that caused decedent to dispose of his property differently.  No such evidence was presented here.

The Takeaways From This Case

This case provides several key lessons about New York probate and challenging the probate of a New York will:

  1. Make sure the person you are alleging undue influence against actually benefits under the will.
  2. Have some actual facts to support what you are saying.  Summary judgment is a high bar, but will be granted if your allegations are based on mere surmise and no personal knowledge at all.
  3.  Be honest with yourself about why you might have been disinherited.  In this case, Mary had sued her brother, and they did not have a good relationship. It should not have been surprising, or hard to understand, why Decedent did not leave her any of his assets.


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