David J. Blatt and Tzila Goldberg ("Petitioners") move for an order granting summary judgment to them dismissing the objections filed by the Public Administrator, and admitting the purported will of Ralph Besdansky ("Decedent") dated April 26, 2004 to probate.

Decedent died on December 5, 2006 at the age of ninety-two. Decedent had been a resident of Palm Beach Home for Adults ("Palm Beach"), an assisted living facility, from September 8, 2003 until his death.

Petitioner David J. Blatt is the Administrator of Palm Beach. Petitioner Tzila Goldberg at the time was the Director of Community Relations and Resident Care at Palm Beach. Petitioners are the co-executors of the purported will which bequeaths Decedent's entire estate alleged to be approximately $500,000.00 to them.

On February 26, 2007, Petitioners filed their probate petition. The Public Administrator, who had been cited as a necessary party pursuant to SCPA 1123 2(i)(2), filed his objections on June 11, 2008. The objections are that at the time the purported will was executed Decedent lacked testamentary capacity, and/or that the purported will was the product of undue influence practiced upon Decedent by Petitioners. Preliminary letters testamentary were issued to Petitioners on March 5, 2009. These letters, however, were revoked on November 19, 2009, based on Petitioners' failure to comply with this Court's Order of October 23, 2009, requiring them to file a bond in the sum of $550,000.00. Since that time the Public Administrator has assumed the temporary administration of this Estate.

The motion before the Court was made following extensive discovery. Petitioners' motion is supported by their attorney's affirmation, their affidavits and numerous exhibits which include deposition testimony. The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]). Summary judgment in a contested probate proceeding may be granted where the proponent sufficiently establishes a prima facie case for probate, and the contestant fails to raise any genuine issues of fact (Matter of Colverd, 52 AD3d 971 [3d Dept 2008]). The burden of proof on the issue of testamentary capacity rests with the proponent of the will, while the objectant bears the burden on the issue of undue influence.

In September 2003, Decedent, a retired metal polisher, was admitted to Maimonides Medical Center in Brooklyn, New York. Decedent was eighty-nine years of age and had been [*2]found sleeping by a neighbor on the front steps of the apartment building wherein he resided alone. During his three-day hospitalization, a social worker at the hospital had called Petitioners to refer Decedent to them. After speaking to Decedent, Petitioners determined he could benefit from and was able to afford a private room at their facility. Upon his discharge from Maimonides Medical Center on or about September 8, 2003, Decedent was admitted to Palm Beach.

Alan B. Hertz, Esq., ("Hertz"), the attorney draftsman of the purported will alleges Decedent contacted him by telephone in late September 2003, wanting to speak to an attorney regarding his financial matters. Hertz does not recall whether anyone else participated in that telephone conservation. He had never provided legal services to the Decedent prior to that time, and did not know how Decedent obtained his phone number. He surmises that Decedent found out about him through "word of mouth", as he had previously been to Palm Beach relating to residents' inquiries concerning living wills, health care proxies and other questions. When he met with Decedent at Palm Beach that September, Hertz claims that, among other things, Decedent wanted to talk about making a will. Hertz had not previously prepared a will for any resident of Palm Beach. In fact he indicated that he has prepared less than ten wills over the past five years. At their initial meeting Hertz advised Decedent to undergo a psychiatric examination. He felt it important because Decedent, "wanted to give all his assets, 50/50 to Tzila Goldberg and David Blatt." (Hertz deposition at 52).

On October 2, 2003, twenty-four days after his admission to Palm Beach, Decedent was taken by Goldberg and Rivkay Blatt, (Blatt's spouse) to the office of Dr. Saed M. Hashemi for a psychiatric examination. The thirty-seven minute examination was conducted in the presence of Goldberg and Rivkay Blatt, who remained throughout the entire psychiatric examination.^[FN1] Dr. Hashemi's report dated October 2, 2003, states,"[t]he evaluation was requested by the staff at the Palm Beach regarding clinical decisions involving mental competency." (Petitioners exhibit A). Dr. Hashemi found that, although there was some decline in memory and concentration, there was no noticeable degree of dementia. He concluded that, "[c]linically, the patient [Decedent] is deemed competent of making decisions and managing his funds."

On April 26, 2004, Hertz took his employees Racha Markowitz, Yosef Krauss and Sandra Louman to Palm Beach to serve as witnesses to the purported will. Decedent also signed a typewritten letter notarized that day authorizing several financial institutions to add Petitioners' names to all of his bank accounts, bonds, safety deposit vaults, and other assets giving each a 50% ownership interest at the time of his death. On May 2, 2oo4, Decedent executed a Durable Power of Attorney for HSBC Bank USA Transactions in favor of Hertz.

The burden of proving that a decedent possessed testamentary capacity rests on the proponent of the will (Matter of Walker, 80 AD3d 865 [3d Dept 2011]). The proponent must establish, (1) that the decedent understood the nature and consequences of executing a will, (2) that the decedent knew the nature and extent of the property that he or she was disposing of, and (3) that the decedent knew the natural objects of his or her bounty, and his relations with them (Matter of Kumstar, 66 NY2d 691 [1985]). This notwithstanding, until the contrary is established a testator is presumed to be sane and have sufficient mental capacity to make a valid [*3]will (Matter of Betz, 63 AD2d 769 [3d Dept 1978]; Matter of Beneway, 272 AD 463 [3d Dept 1947]). This presumption coupled with Dr. Hashemi's report finding Decedent competent to make decisions and manage his funds, constitutes a prima facie showing of Decedent's mental capacity to make a valid will. The burden therefore shifts to objectant to demonstrate a triable issue of fact in this regard.

The Public Administrator offers the report of Dr. Robert L. Goldstein, a board-certified psychiatrist. Dr. Goldstein based upon, inter alia, his viewing of Dr. Hashemi's examination and his review of Dr. Hashemi's report concludes that Decedent suffered from dementia (either of the Alzheimer's Type, or Vascular Dementia), and a severe mood disorder (most likely Major Depressive Disorder). It is his expert medical opinion that Decedent's "mental weakness, significant cognitive deficits, and defective judgment had critically compromised his psychological functioning", and Decedent neither had the mental capacity to make, understand or appreciate the consequences of executing the will, nor did he know or appreciate the nature and extent of the property being disposed of.

The findings of Dr. Goldstein contradict Dr. Hashemi's findings that Decedent did not show evidence of dementia, and was competent to make decisions and manage his funds. The conflicting expert medical opinions regarding Decedent's mental capacity creates a triable issue of fact concerning Decedent's testamentary capacity (Matter of Raskas, 213 AD2d 718 [2d Dept 1995]).

Undue influence is defined as influence that amounts to a moral coercion, which restrains independent action and destroys free agency, or which by insistence cannot be resisted, constraining the individual to do that which is against his/her free will and desire, but which he/she is unable to refuse or too weak to resist (Matter of Caruso, 70 AD3d 937 [2d Dept 2010], citing Matter of Walther, 6 NY2d 49 [1959]).

Undue influence, "can be shown by all the facts and circumstances surrounding the testator, the nature of the will, his family relations, the condition of his health and mind, his dependency upon and subjection to the control of the person supposed to have wielded the influences, the opportunity and disposition of the person to wield it, and the acts and declarations of such person" (Matter of Bach, 133 AD2d 455 [2d Dept 1987]).

In the probate petition Petitioners concede that they were in a confidential relationship with Decedent. However, even without this admission it is clear that a confidential relationship existed between Petitioners and Decedent, as Blatt was the Administrator, and Goldberg the Director of Community Relations and Resident Care at the facility where Decedent resided. Where, as here, there is substantial disparity in power between the parties involved in a transaction, the law may impute the existence of a confidential relationship (Ten Eyck v Whitbeck, 156 NY 341 [1898]).

Both Petitioners indicate in their depositions that Decedent had revealed the extent of his assets to them. This is not unusual as, "[i]t is inevitable that the aged and infirm, under such circumstances, will become very dependent upon those who tend to their wants, and a high degree of confidentiality will develop under which the aged will reveal to them their closest thoughts and the state of their financial affairs" ( Matter of Burke, 82 AD2d 260 [2d Dept 1981]). As such transactions between them are be scrutinized with extreme vigilance, and clear evidence is required that the transaction was understood, and that there was no fraud, mistake or undue [*4]influence (see Matter of Gordon v Bialystoker Ctr. & Bikur Cholim,45 NY2d 692 [1978]). While the vast majority of those who care for the aged are honest and dedicated professionals, the relationship is one which unfortunately, "the greedy and the corrupt may find considerable gain" (Matter of Burke, 82 AD2d 260, supra).

It is undisputed that Petitioners each received a "gift" of $250,000.00 from Decedent within several months of his taking up residency at Palm Beach. In fact Decedent had been taken to HSBC bank by Goldberg and Rivkay Blatt to effect the wire transfers and establish the accounts. It is also undisputed that Petitioners received on Decedent's death an additional $447,747.36 each in Totton Trust payments as Decedent had added their names to all of his bank accounts, bonds, safety deposit vaults, and other assets.

Yet by all indications Decedent had been a man of frugal habits, who by being so had amassed assets of approximately two million dollars. Blatt indicates in his affidavit that Decedent had lived a very solitary life for many years before coming to Palm Beach. During Dr. Hashemi's examination, Decedent indicated that his life basically consisted of watching TV and listening to the radio. He stated he was a bachelor because he didn't make enough money. He complained of the cost of his hospital stay at Maimonides Medical Center just the prior month declaring, "they charge a lot of money, I won't go there anymore". Then suddenly a month or so later he gives away $500,000.00 ($250,000.00 each) to two individuals who admittedly never invited him to their home or participated in any other social engagement with him other than speaking to him or doing that which was part of their regular duties at Palm Beach. This drastic change "in decedent's dedication to these lifelong penurious practices" (see Matter of Brandon, 79 AD2d 246 [2d Dept 1981]), clearly constitutes sufficient circumstantial evidence of undue influence to raise a triable issue of fact as to whether Petitioners exerted undue influence over Decedent (see Matter of Katz, 63 AD3d 836 [2d Dept 2009]).

Additionally there is ample evidence of Petitioners' involvement in the drafting of Decedent's will. Hertz claims he wanted Decedent to undergo a psychiatric examination before going forward with any testamentary instruments due to Decedent wanting to give all his assets to Petitioners. But then curiously Hertz permitted and acquiesced in his client being brought by the very individuals who stood to gain by the will to a psychiatrist of their choosing. Dr. Hasemi's report indicates that it was conducted at the request of the staff at Palm Beach, and not that of Hertz. Further, Hertz apparently had no problem with the fact that the examination was conducted in the presence of Goldberg and Rivkay Blatt. Yet it was the finding that Decedent was mentally competent from this psychiatric examination which caused Hertz to go forward and draft the will. By their actions Petitioners inserted and involved themselves in the prerequisite to and basis for Hertz's drafting of the will which bequeathed all of Decedent's assets to them. In so doing it is clear Petitioners have involved themselves in the drafting of Decedent's will. It is well settled that where a beneficiary under a will is in a confidential or fiduciary relationship with the testator, and is involved in the drafting of the will, an inference of undue influence arises placing the burden on the beneficiary to explain the circumstances of the bequest, the adequacy of which is a question for the trier of fact ( Matter of Neenan, 35 AD3d 475 [2d Dept 2006]; Matter of Bertel, NYLJ, April 7, 1994, at 26, col 6 [Sur Ct, New York County]).

Accordingly, as there are clearly issues of fact raised, Petitioners' motion for summary [*5]judgment dismissing the objections of the Public Administrator based on mental capacity and undue influence is denied.

This constitutes the decision and order of the Court.

_________________________

Hon. Diana A. Johnson

Surrogate

Dated:Brooklyn, New York

April 12, 2011