In re the Estate of Fellows
Agnes S. Fellows (hereinafter decedent) and Lee Fellows, Jr. (hereinafter Fellows) married in 1982. Both were previously married and both are survived by children of their first marriages. Petitioner, who offers decedent‘s 1993 will for probate, is decedent‘s daughter. Unlike the will that decedent executed in 1988, the 1993 will leaves the residue of decedent‘s estate to petitioner. Fellows, prior to his death in April 2003, filed multiple objections to the probate of the 1993 will. Prior to a determination on the probate petition, respondent, who became the executor of Fellows’ estate upon Fellows’ death, attempted to exercise Fellows’ right of election against decedent‘s estate. By order entered in July 2003, Surrogate‘s Court denied respondent‘s application determining that respondent did not have the authority to exercise Fellows’ right of election. Petitioner thereafter moved for summary judgment dismissing respondent‘s objections to probate. In March 2004, Surrogate‘s
To deny probate on the basis of undue influence, an objectant must establish 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” (Children‘s Aid Socy. of City of N.Y. v Loveridge, 70 NY 387, 394 [1877]). Undue influence of this nature must be shown by establishing motive, opportunity, and the actual exercise of that undue influence (see Matter of Walther, 6 NY2d 49, 55 [1959]; Matter of Fiumara, 47 NY2d 845, 846 [1979]).
As Surrogate‘s Court recognized, motive is almost always present and is here established by the benefit that petitioner received as the sole residuary beneficiary. The other elements are much more problematic. The record establishes that petitioner lived out of state, was not present when the will was executed, had no input with respect to its contents and, indeed, had no knowledge of the contents until receiving an e-mail from decedent in 2000. The record does reflect, however, that a family rift developed during a 1991 visit by petitioner and her family with decedent and Fellows because of the latter‘s statement that petitioner simply used her mother as a free babysitting service. Because of this and a second event where petitioner allegedly told decedent that she was “disappointed” after decedent scolded her children, Fellows’ two sons claim that decedent was fearful that she would be denied access to her grandchildren. Lacking any direct evidence that petitioner, in fact, either threatened to or did deny access to her children or that decedent changed her will as a result, respondent argues that circumstantial evidence exists sufficient to require a trial. According to respondent, this circumstantial evidence consists of the close personal relationship between mother and daughter, that the resulting will is unfair or unjust in its provision for Fellows and that the resulting will is considerably different in intention than the intention expressed in a previous will.
With respect to the appeal from the July 2003 order, respondent recognizes that the right of election against a will is a personal right which dies with the surviving spouse (see Matter of Wurcel, 196 Misc 2d 796, 797-799 [2003]; Matter of Crane, 170 Misc 2d 97, 99-102 [1996]). Respondent argues, however, that the rule is antiquated and ignores the current reality of joint contribution that is recognized in other aspects of the law, particularly equitable distribution. In our view,
Cardona, P.J., Crew III, Rose and Kane, JJ., concur. Ordered