In the Matter of Elliott Bolsinger, Deceased
Categories
Attorneys and Parties
Brief Summary
This was a contested probate proceeding over whether the decedent's November 2, 2022 will should be admitted to probate, focusing on due execution, testamentary capacity, and undue influence.
The Surrogate's Court granted summary judgment to the petitioner, dismissed the objections based on lack of due execution, lack of testamentary capacity, and undue influence, and admitted the will to probate.
The Appellate Division reversed insofar as appealed from and denied summary judgment on those three objections.
Although the petitioner made a prima facie showing, the objectant raised triable issues of fact. Evidence of the decedent's terminal illness, hospice care, bedridden condition, medication use, and proximity to death created factual issues on testamentary capacity. Questions also remained about compliance with EPTL 3-2.1(a) [statutory requirements for will execution], and an inference of undue influence arose because Cara Bolsinger prepared the will without an attorney, the decedent was allegedly wholly reliant on her, and Cara's daughter, the petitioner, received a substantial benefit under the will.
Background
Elliott Bolsinger died on November 4, 2022. His granddaughter, Serrina Brown, petitioned to probate his will dated November 2, 2022. His daughter, Elaine Bolsinger, objected, alleging among other things that the decedent lacked testamentary capacity, that the will was not duly executed, and that it was the product of undue influence. The record showed that in the days surrounding execution, the decedent was terminally ill, in hospice, bedridden, taking various medications, and near death. The record also showed that one of the decedent's daughters, Cara Bolsinger, knew about his finances, drafted the will herself without attorney supervision, and that the petitioner, who is Cara's daughter, received a share equal to the decedent's children.
Lower Court Decision
The Surrogate's Court, Dutchess County, granted those branches of the petitioner's motion for summary judgment dismissing the objections based on lack of due execution, lack of testamentary capacity, and undue influence, and admitted the will to probate.
Appellate Division Reversal
The Appellate Division held that summary judgment was improper. On testamentary capacity, the objectant's evidence about the decedent's condition immediately before and after execution raised factual issues. On due execution, although the will contained an attestation clause and self-proving affidavit and the petitioner submitted testimony from the attesting witnesses and notary, the objectant still raised triable issues as to compliance with EPTL 3-2.1(a). On undue influence, the court found an inference of undue influence because a close family member allegedly in a confidential and controlling position drafted the will and her daughter benefited significantly from it. The order and decree were therefore reversed insofar as appealed from, with costs, and summary judgment on those objections was denied.
Legal Significance
The decision reinforces that summary judgment is rare in contested probate matters and should not be granted where the record presents factual disputes about the decedent's mental state, statutory will formalities, or suspicious circumstances surrounding preparation of the will. It also underscores that attorney supervision is not the only way to establish due execution, but absent such supervision, even a self-proving affidavit and attestation clause may not eliminate factual disputes. The case further highlights that an inference of undue influence may arise when a beneficiary or someone closely aligned with a beneficiary is in a confidential relationship with the testator and participates in drafting the will.
A will offered for probate will not be upheld on summary judgment where credible evidence suggests the testator was gravely ill, the will was prepared by a family member without attorney supervision, and a favored beneficiary was closely connected to the drafter; those circumstances require a factual hearing or trial.