Matter of Tagliagambe
2011 NY Slip Op 50362(U) [30 Misc 3d 1235(A)]
Decided on March 8, 2011
Sur Ct, Kings County
Johnson, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 8, 2011
Sur Ct, Kings County

In the Matter of Probate Proceeding, Will of Angela Tagliagambe, Deceased.


Diana A. Johnson, J.

In this contested probate proceeding, John Tagliagambe (petitioner) has moved for an order 1) granting summary judgment in his favor; 2) striking the objections filed and 3) admitting the proffered instrument dated January 17, 2008 to probate.

The decedent died on December 21, 2008 survived by three children: the petitioner, Anthony Tagliagambe and Mario Tagliagambe. The petitioner has alleged that the decedent executed (under the supervision of an attorney) a will on January 17, 2008 essentially leaving her entire estate to the petitioner and nominating him as executor. Anthony Tagliagambe and Mario Tagliagambe have filed objections upon the grounds of due execution, lack of testamentary capacity, fraud and undue influence.

In the current motion, the petitioner alleges that the objectants have presented no evidence of probative value in support of the objections filed and thus the objections should be dismissed. The objectants allege that the decedent suffered from mental and physical infirmities that impaired her ability to make a will and present issues of fact for a jury.

It is well settled that summary judgment may be granted only where it is clear that no triable issue of fact exists (see e.g., Alvarez v Prospect Hospital, 68 NY2d 320 [1986]; Phillips v Joseph Kantor & Co., 31 NY2d 307 [1972]). The key to summary judgment is issue finding rather than issue determination (Sillman v Twentieth Century Fox Film Corp., 3 NY2d 395 [1957]). Consequently, it is incumbent upon the movant to make a prima facie showing that he or she is entitled to summary judgment as a matter of law (CPLR 3212 [b]; Zuckerman v City of New York, 49 NY2d 557 [1980]; Friends of Animals, Inc. v Associated Fur Manufacturers, Inc., 46 NY2d 1065 [1979]; Zarr v Riccio, 180 AD2d 734 [2d Dept 1992]). If there is any doubt as to the existence of a triable issue, the motion must be denied (Hantz v Fishman, 155 AD2d 415 [2d Dept 1989]).

During oral argument, the objectants' attorney agreed to withdraw his objections to the [*2]proffered instrument upon the grounds of due execution and fraud. Accordingly, the objections upon the grounds of due execution and fraud are withdrawn.

The remaining issues requiring a determination in this motion concern the objections upon the grounds of lack of testamentary capacity and undue influence.

In admitting a will to probate, the proponent has the burden of establishing that the testator possessed testamentary capacity (that the testator was of "sound mind and memory") when the will was executed (Matter of Kumstar, 66 NY2d 691 [1985], reag denied, 67 NY2d 647 [1986]; Matter of Slade, 106 AD2d 914 [4th Dept 1984]; Matter of Collins, 124 AD2d 48 [4th Dept 1987]). To show testamentary capacity, the proponent must show that the decedent knew the nature and extent of the property being disposed and the natural objects of the decedent's bounty. Notwithstanding the proponent's burden, a testator is presumed to be sane and to have sufficient mental capacity to make a valid will (see Matter of Beneway, 272 App Div 463 [3d Dept 1947]).

The petitioner has presented evidence from the attorney/drafter as well as from the two attesting witnesses that the decedent was of sound mind. The attorney/drafter testified in his deposition that he discussed with the decedent how she wished to dispose of her property. At the time that he met with her she did not exhibit any type of physical disability inconsistent with her age and seemed mentally competent. The decedent had no trouble speaking and no apparent cognitive issues. The two attesting witnesses in their depositions joined with the attorney/drafter in his assessment of the decedent's capacity to make a will.

On the other hand, the objectants, in their papers, allege that the decedent suffered from multiple physical illnesses and dementia (possibly Alzheimer's Disease) and presented medical records showing that the decedent was prescribed Aricept (a medication usually prescribed to alleviate the effects of a certain type of dementia). He has produced medical records showing that the decedent allegedly suffered from memory loss and mild encephalopathy in October 2007 prior to the execution of the will. "Mere old age, physical weakness and infirmity or disease or failing memory are not necessarily inconsistent with testamentary capacity" (Matter of Beneway, supra). Even a terminal illness alone does not negate testamentary capacity (Matter of Burack, 201 AD2d 561 [2d Dept 1994]).

What gives the court pause in accepting the prescription of Aricept as proof positive that an issue of fact exists for a determination after trial is the objectant's admission that the Aricept was prescribed by the objectant, Mario Tagliagambe, who testified that he is a duly licensed medical physician with a general family practice. The petitioner has disclosed that he took the decedent to a neurologist for an examination because she suffered from migraine headaches. The record also shows notation that Aricept is recommended as a treatment. But, the record shows that the only physician who prescribed Aricept for the decedent was the objectant, Mario Tagliagambe, who admitted that he did not examine his mother prior to prescribing her the medication. There is no record that shows that the examining physician actually prescribed the medication of Aricept to the decedent.

Moreover, the court is not convinced that the diagnosis of memory loss specified in the electroencephalogram results indicate that the decedent lacked testamentary capacity. The court notes that less capacity is required to make a will than to make other contracts (Matter of Coddington, 281 App Div 143 [3d Dept 1952]). Courts have even held that a diagnosis of [*3]progressive dementia or Alzheimer's disease does not, in and of itself, create a triable issue of fact as to testamentary capacity (see Matter of Waldron, 240 AD2d 507 [2d Dept 1998]). Such a diagnosis is not necessarily inconsistent with a finding of testamentary capacity and does not alone preclude a finding thereof (Matter of Friedman, 26 AD3d 723 [3d Dept 2006]). "Rather, it must be shown that because of the affliction, the person was incompetent at the time of the transaction" (Matter of Waldron, 240 AD2d 507 [2d Dept 1998]).

Here, the objectant has produced no evidence, other than his self-interested statements, that the prescribed medication was actually taken by the decedent. In addition, the objectant's papers contain no affidavits from the decedent's doctors. The only sworn statement from a doctor is submitted by the objectant, Mario Tagliagambe, with no evidence that he even examined the decedent prior to prescribing her the medication that he claimed was for memory loss. While the decedent may have been elderly with diminished physical abilities associated with her age, there are ample proofs in the record, including the testimony of the attesting witnesses which is entitled to great weight (see Matter of Collins, 60 NY2d 466 [1983]), to show that the decedent was in control of her faculties at the time that she executed her will. The courts have routinely rejected the notion that any factual issue, no matter how contrived or self-serving in the circumstance presented is sufficient to defeat summary judgment (Ramos v Rojas, 37 AD3d 291 [1st Dept 2007]). The objectant's self-serving submissions concerning the decedent's alleged lack of testamentary capacity are insufficient to defeat this motion for summary judgment.

Moreover, the court is also not persuaded by the objectant's allegations of undue influence. When undue influence is practiced, the mind of the testator must be so overpowered that the will of another is substituted for that of the testator. The influence must amount to moral coercion. Undue influence usually involves a course of conduct (Matter of Walther, 6 NY2d 49 [1959]; Matter of Burke, 82 AD2d 260 [2d Dept 1981]). To establish undue influence, objectant must establish that: (1) the perpetrator had the motive to exercise undue influence; (2) the perpetrator had the opportunity to exercise undue influence and (3) undue influence was actually exercised (see Matter of Burke, supra). The testator's physical and mental condition are critical factors in determining whether the pressure exerted amounts to undue influence (Matter of O'Brien, 182 AD2d 1135 [4th Dept 1992]).

The objectant has alleged that the petitioner contacted the attorney/drafter of the proffered instrument to be named as the beneficiary therein. He also alleges in the papers submitted that the decedent was relatively isolated, suffering from dementia and incontinence and dependant upon the petitioner for her daily care. According to the objectant, the petitioner had a "history of taking funds that [did] not belong to him" and received over two million dollars from his mother's accounts in a two-year period.

Even with the objectant's allegations of financial exploitation, this court is unconvinced that undue influence was exercised. First, the objectant has alleged that the possibility of substantial financial gain (as the sole legatee in the decedent's will) provided the petitioner with the motive to exercise undue influence upon the decedent. However, as the decedent was survived by only three children, the petitioner would have taken in the decedent's estate through intestacy even if there was no will. Moreover, the decedent's largesse to the objectant could easily be interpreted as her appreciation for the petitioner's assistance in caring for her in her [*4]failing years as well as his position as her son, two facts which are uncontroverted in the record.

Moreover, the objectant's allegations that the petitioner had the opportunity to exercise undue influence by isolating his mother and changing the locks on the doors to the home where the objectant lived with his mother are unpersuasive. Nowhere in the objectant's papers does he alleged that he was denied access when he sought to visit the decedent. Nor does the objectant allege that he requested a key to the decedent's home and was refused same. The fact that the decedent depended upon the petitioner (her son) for assistance in her later years is nothing out of the ordinary and most certainly does not suggest undue influence in this matter. In fact, the objectant has specified that he often prescribed his mother medications and depended upon the petitioner to make sure that she took them. The objectant's allegations do not show undue influence but simply an elderly parent depending upon her children for assistance in her later years.

Even if the allegations of the objectant that the petitioner had the motive and opportunity to exercise undue influence were true, the objectant has failed to show that the petitioner actually exercised undue influence upon the decedent.The objectants have simply failed to show the exercise of any controlling influence over the decedent because of the decedent's condition or circumstances (see Feiden v Feiden, 151 AD2d 889 [3d Dept 1989]). Mere opportunity that motive and opportunity existed to exert undue influence is insufficient to raise a triable issue of fact (Matter of Bustanoby, 262 AD2d 407 [2d Dept 1997]). While the objectants allege that large sums were received by the petitioner from the decedent's accounts over the years and suggest that said sums were wrongfully obtained, the petitioner has shown through the decedent's tax records that said sums were actually gifts that the decedent gave to her son over several years time. Moreover, the fact that the petitioner received large sums of monies from his mother without more is insufficient to raise a triable issue of fact upon the grounds of undue influence.

Accordingly, for the foregoing reasons, the petitioner's motion for summary judgment is granted and the objections are hereby dismissed.

Based upon a review of the record, the court is satisfied that the propounded instrument is genuine and was validly executed (SCPA 1408) and that at the time of the execution, decedent was competent in all respects to make a will and that the decedent was not under restraint or undue influence (EPTL 3-2.1).

Accordingly, the petition to admit the instrument dated January 17, 2008 is granted. Letters testamentary shall issue to the petitioner upon duly qualifying according to law.

Settle decree.



S u r r o g a t e

Dated:Brooklyn, New York

March 8, 2011