Law of Wills, 2016A

In re Estate of Rosasco, 31 Misc. 3d 1214(A), 927 N.Y.S.2d 819 (N.Y. Sur. Ct. 2011)
KRISTIN BOOTH GLEN, J.
This is a motion for summary judgment brought by John Cella, preliminary executor of the estate of
his great-aunt, Mildred Rosasco, and proponent in a proceeding to probate her will. Objectants (four
of decedent’s nieces and nephews, including proponent’s mother) oppose the motion. The facts of
this case and the objections asserted present an opportunity to reexamine the tangled relationship in
New York law between undue influence and duress as grounds for invalidating a will.
Procedural Posture:
Decedent died on June 18, 2006, at age 93, survived by five nieces and nephews as her distributees,
leaving a $2.8 million estate. The propounded instrument, executed on September 16, 1997,
nominated as co-executors Loretta, a predeceased sister, and proponent and left the entire probate
estate to Loretta and Lillian, another predeceased sister, but, in the event neither survived decedent,
to proponent. Accordingly, proponent is the only person with an interest under the propounded
instrument.
Distributees Elissa Cella, Robert Rosasco, Arthur Rosasco and Ellin Learned objected to probate of
the propounded instrument, alleging that the instrument: (1) is not genuine; (2) was not duly
executed; (3) was executed by mistake; (4) was executed without testamentary capacity; (5) is the
product of proponent’s undue influence; (6) is the product of duress exercised by proponent on
decedent; and (7) was procured by proponent’s fraud.
Summary Judgment:
On a summary judgment motion, the court must examine the evidence in a light most favorable to
the party opposing summary judgment (see Council of City of New York v. Bloomberg, 6 NY3d 380,
401[2006]). That party “must assemble and lay bare its affirmative proof to demonstrate the
existence of genuine, triable issues. Reliance upon mere conclusions, expressions of hope or
unsubstantiated allegations is insufficient for that purpose [citations omitted]” (Corcoran Group v. Guy
Morris et al., 107b A.D.2d 622, 624 [1 st Dept 1985], affd., 64 N.Y.2d 1034).
Objectants have articulated a basis for their allegations of undue influence and duress, but adduced
no evidence to support any other ground. Therefore, with respect to issues for which objectants
bear the burden of proof—allegations that the propounded instrument is the product of fraud (see
Matter of Evanchcuk, 145 A.D.2d 559, 560 [1st Dept 1988] ) and was executed by mistake—but have
furnished none, the motion for summary judgment is granted. With respect to objections for which
proponent bears the burden of proof—the genuineness of the instrument (see Matter of Creekmore, 1
N.Y.2d 284, 292 [1956]); see also SCPA 1408 [1] ), the due execution of the instrument and the
capacity of the testator (see Matter of Kumstar, 66 N.Y.2d 691, 692 [1985])—and has borne his burden
(by means of an affidavit of the attesting witnesses, the attestation clause of the will, and proof that
an attorney supervised the execution of the will [Matter of Schlaeger, 74 AD3d 405 (1 st Dept. 2010)]),
the motion for summary judgment also is granted. The only remaining issue, therefore, is whether
objectants’ allegations of undue influence and duress warrant a trial.
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