Summary judgment: It might be the most prevalent of motions, in support of which even the most inexperienced among us likely can, without a second thought, quote the prevailing case law. But, as with anything that becomes rote, are we correct in our understanding of the law and have we kept current with respect to the likelihood of success in the bringing of a summary judgment motion in the context of a will contest?
The basic premise for the bringing of a motion for summary judgment is no different in the Surrogate's Court than in any other trial court—in sum, if it can be proven to the court that no genuine issue of material fact exists, a trial can be avoided.1 Historically however, Surrogates have for the most part, been unwilling to grant such a drastic remedy in the context of a will contest, a proceeding which, by its very nature, is fact driven. Given this seeming predisposition, and the fact that the grant or denial of summary judgment is inherently within the sound discretion of the court, it has been a motion that many members of the trusts and estates bar have been hesitant to bring. The state of the law was such that it was perceived that any question of fact, material or not, could be a sufficient basis for denial. Thus, it was commonly thought that the risk in bringing the motion, given the necessity of laying bare one's theory of the case and the supporting evidence, was not worth the possible, but highly unlikely, reward.
Shifting Tide
Recently, and particularly in the last two years, cases have been decided by different Surrogates, which indicate that the pendulum may gradually be swinging in a different direction—and that the Surrogate's Courts have decided to truly hold our feet to the fire when we move for and defend against summary judgment motions on behalf of our clients. Simply put, both parties must "put up or shut up" when bringing or defending against a motion, knowing that there is a real chance that the motion will be granted, whether in whole or in substantial part, unless the court finds that the respondent to the motion has clearly demonstrated that there is a material issue of fact which would mandate denial.
This is a game changer. No longer will a mere allegation of undue influence, lack of capacity or duress, supported solely in the form of an affidavit from an interested party, create an issue of fact that will suffice to overcome a motion for summary judgment and the admission of the will to probate. There must be more, and both parties must focus not only on the issues of fact that may exist, but on the quality of the proof submitted in support of their claim or in defense thereof.
Proponent and Objectant
Perhaps the clearest way to understand the shift in judicial perspective is to broadly outline and briefly examine the burdens of proof of the proponent and the objectant to a will. A good place to start is the Jan. 4, 2010 Decision of Surrogate Edmund A. Calvaruso (Sur. Ct. Monroe County) in Matter of Feller,2 which provides a comprehensive review of the various standard objections to probate and the manner in which the Surrogate's Court analyzes the proof when deciding such objections. While the "proof" relied upon by the Feller objectants can be characterized as weak at best, the case itself is instructive because the court focused on the various burdens of proof and the quality of evidence presented.
Initially, the proponent of a will bears the burden of proof when seeking to admit a will to probate, and that burden, is often easily met when the proponent can prove that the will execution was supervised by the attorney-draftsman, and thus, was duly executed as set forth in EPTL 3-2.1. In Feller, the objectants contended that the will at issue was not duly executed because it was the attorney-draftsman rather than the testator who requested that the witnesses act. In moving for summary judgment, the proponent submitted the deposition testimony of the attorney-draftsman that the testator concurred when the attorney asked if she wanted those present to witness her will. The court, acknowledging that attorneys routinely lead their clients through the formalities of a will signing, held that there is no "ironclad ceremonial or ritualistic language" that must be included in order for the burden of due execution to be deemed met,3 and denied that objection.
The second objection interposed in Feller, was lack of testamentary capacity. With respect to capacity, the court held:
[P]roponent bears the burden to prove testamentary capacity at trial, [citations omitted]. For purposes of a summary judgment motion, once a proponent makes a prima facie case for probate, the burden switches to the objectant to show a triable issue of fact [citations omitted].4
In granting summary judgment to proponent on this objection, the court noted that the only evidence submitted by the objectant came from the deposition testimony of one of the objectants that on two visits with the testator around the time the testator signed her will, the decedent appeared to be unusually preoccupied and reserved. After taking this into consideration, Calvaruso held that the objectants "failed to raise competent evidence creating a genuine issue of fact."
The final objection raised by the Feller objectants was undue influence. The burden of proof on undue influence is on the objectant. To meet that burden, an objectant has to prove three elements by a preponderance of the evidence: motive, opportunity and actual acts of undue influence.5 The evidence proffered by the Feller objectants? That proponent persuaded the testator to change her chosen funeral home (Harris) to one that was a client of the proponent. There was no proof submitted by the objectants with respect to proponent's alleged motive with respect to this issue, and indeed, the proffered will directed that Harris be used for her funeral arrangements. Additionally, the record was clear that the testator traveled alone to the proponent's offices, that the proponent had attempted to persuade the testator to choose an executor other than himself, and that he made no recommendations regarding the testator's testamentary plan. In dismissing this objection and granting summary judgment, the court pointed out that while undue influence is typically proved by circumstantial evidence, "this does not preclude summary judgment where a material issue of fact has not been shown."6
Sending a Message
In March 2012, the Appellate Division, Second Department, followed suit in Matter of Capuano,7 reversing the lower court and granting summary judgment to the proponent of a will on the ground of undue influence. In doing so, the Second Department is certainly sending a strong message to practitioners that summary judgment in a will contest will no longer be denied as a matter of course unless objectant lays bare proof constituting a preponderance of the evidence with respect to a material issue of fact. In reaching its conclusion, the court found the following:
The appellant established his prima facie entitlement to judgment as a matter of law dismissing the objection to probate based on fraud and undue influence by demonstrating, inter alia, that the decedent understood the will, and that the will was not the product of undue influence or fraud [citations omitted]. Although the decedent was undergoing treatment for cancer at the time of her unexpected death, the witnesses who knew the decedent for many years, and interacted with her almost daily, established that she was alert, did not appear to be ill, and was her usual self when she executed the will bequeathing her estate to the appellant.
In opposition, the objectant failed to raise a triable issue of fact [citation omitted], since his opposition was based on allegations which were conclusory, speculative, and unsupported by admissible evidence [citation omitted].
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