In re the Estate of Nealon
Shortly before decedent‘s death, petitioner began making inquiries about the whereabouts of money that had been withdrawn from decedent‘s bank accounts, principally through checks made out to respondents, along with automatic teller machine transactions, which were all disbursed during the period of time that she lived with them.1 Dissatisfied with respondents’ responses, petitioner commenced this proceeding in January 2005 asserting two causes of action: the first claiming that decedent suffered from diminished mental capacity at the time of the subject transactions and the second containing allegations sounding in undue influence. Respondents main
Initially, petitioner argues that Surrogate‘s Court erred in dismissing his claim premised upon decedent‘s alleged incapacity. A person‘s competency to engage in a transaction is presumed and the party challenging such bears the burden of proving incompetence (see Sears v First Pioneer Farm Credit, ACA, 46 AD3d 1282, 1284-1285 [2007]). Additionally, a diagnosis of progressive dementia, standing alone, does not create a triable issue of fact as to mental capacity (see Matter of Friedman, 26 AD3d 723, 725 [2006], lv denied 7 NY3d 711 [2006]). Instead, it must be demonstrated that the individual was incompetent at the specific time of the challenged transaction, i.e., he or she was “so affected as to render him [or her] wholly and absolutely incompetent to comprehend and understand the nature of the transaction” (Feiden v Feiden, 151 AD2d 889, 890 [1989] [internal quotation marks and citation omitted]).
Here, while petitioner did provide some proof supporting his claim that decedent had diminished competency during the relevant time period, we agree with Surrogate‘s Court that the evidence was insufficient to withstand summary judgment given the lack of proof in the record concerning decedent‘s capacity at the time of the specific money transactions at issue herein. Notably, while decedent‘s physician, Robert Donahue, testified as to decedent‘s progressive deterioration, he also clearly stated that individuals with decedent‘s condition would have lucid moments and waning moments; therefore, the fact that she lacked capacity on one day would not mean that she could not be considered competent on the next. Consequently, in light of the failure to show proof rebutting the presumption in favor of competency, Surrogate‘s Court did not err in dismissing the diminished mental capacity cause of action.
Turning to the claim alleging undue influence, however, we reach a different result and conclude that factual issues preclude summary judgment (see Matter of Johnson, 6 AD3d 859, 861 [2004]).2 Here, petitioner and other witnesses testified as to decedent‘s increasing confusion during the relevant period and
Notably, respondents were vague or unresponsive when questioned about many of the specific withdrawals or transactions at issue herein. While respondents maintain that decedent wanted to contribute her “portion” or “share” of the cost of the addition that added her bedroom and bathroom to the home, at no point did respondents claim that decedent said she would pay for it in its entirety as a gift to them. Nor did respondents provide an explanation as to what part of the total cost of the project constituted decedent‘s “share.” In fact, although questioned under oath, respondent did not provide a figure as to the total cost of the addition, although at various times he mentioned estimates between $60,000 and $85,000. When asked about numerous large withdrawals from decedent‘s accounts after the addition was completed, respondent had no explanation.
Significantly, petitioner testified that, in March 2004, when he met with respondent about the missing money, respondent “indicated he would make restitution.” According to petitioner, respondent made no mention of receiving gifts from decedent and, instead, told him that he “basically took [his] inheritance early” and “deserved this money because he was treated as a second-class citizen” in the family. During his deposition testimony, respondent acknowledged meeting with petitioner and indicating to him that, since he could not “account for” $70,000 of their mother‘s money, he was willing to renounce his right to inherit one third of decedent‘s estate. Since we conclude that direct and circumstantial proof in the record (see Matter of Paigo, 53 AD3d 836, 839-840 [2008]) raised triable issues of fact regarding the allegations of undue influence, summary judgment was inappropriate on this cause of action (see Matter of Johnson, 6 AD3d at 861).
Peters, Carpinello, Kavanagh and Stein, JJ., concur. Ordered that the order is modified, on the law, without costs, by reversing so much thereof as granted respondents’ motion for summary judgment dismissing the undue influence cause of action; motion denied to that extent; and, as so modified, affirmed.