Estate of Jennie Krzyck, also known as JENNIE M. KRZYCK, also known as JENNIE M. MAIO, also known as JENNIE MAIO, Deceased.
SURROGATE'S COURT OF NEW YORK, BRONX COUNTY
June 11, 2012, Decided
Lee L. Holzman 
, J.
In this probate proceeding the proponent, the decedent's son who is the nominated executor and sole beneficiary under the propounded instrument dated July 20, 2009, moves to preclude the objectant, the guardian of the property of one of the decedent's grandchildren who is an infant, from offering any evidence or testimony in this proceeding on the grounds that the objectant's bill of particulars was untimely served (81 days after the demand instead of 30 days) and 15 days after all disclosure was to be completed, and that the responses therein are not in conformity with the specificity requirement set forth in Uniform Rules for the Surrogate's Court (22 NYCRR) § 207.23 (a).
The decedent died on September 9, 2009 at the age of 73. The decedent's only distributees are the petitioner, the infant grandson for whom a guardian ad litem was appointed and another grandson who consents to the probate of the propounded instrument. Although the guardian ad litem for the infant filed a report [**2] indicating that he found no basis to object to the admission of the will to probate, the infant's father disagrees. After some delay caused in part by the necessity of obtaining guardianship of the infant's property, the father eventually filed objections on the infant's behalf. Specifically, the objections are: (1) the instrument is not the last will and testament of the decedent; (2) the decedent was not competent to make a will on the execution date; (3) the instrument was procured through fraud and undue influence by the proponent and/or his girlfriend or parties unknown; (4) the decedent did not have the ability to understand and/or appreciate the provisions of the instrument when it was executed; and, (5) such other and further objections as may become apparent after disclosure
.A conference was held with the court in which the guardian ad litem participated and indicated that he would favor settlement of the issues raised. As no settlement was reached, the court rendered a decision relieving the guardian ad litem of his representation of the infant unless [***2] he was needed for any subsequent settlement discussions, inasmuch as the infant was represented by counsel retained by the [**3] guardian of his property who would "vigorously prosecute" the objections (Matter of Krzyck, NYLJ, Aug. 10, 2010, at 26, col 6).
Counsel for the objectant sets forth excuses for the delay that vex his adversary and might strain credibility, especially after the initial delay in filing the objections; i.e., counsel's alleged inability to respond to the demand for a full month due to a trial in Rockland County, delayed review of medical records by a doctor who, rather than being furnished with copies, could only review them at the court one morning a week. Nevertheless, instead of seeking summary judgment based upon proof establishing a prima facie case and that the objectant failed to raise any triable issue of fact, the proponent, in effect, seeks to deprive an infant interested party of his day in court based upon delay and an alleged lack of specificity in his bill of particulars. Notwithstanding that no party should expect that a failure to meet a deadline will be without consequences, the court, in the exercise of its discretion, will review the bill of particulars, and if it is found in any way to be deficient, make such order as may be just (see CPLR 3126).
The proponent argues [**4] that the delay and lack of specificity merit preclusion of evidence with respect to all of the objections, while the objectant glosses over the delay and relies on his alleged likelihood of success on the merits, primarily on the issues of lack of testamentary capacity because the decedent was suffering from a terminal illness at the time the will was executed and undue influence due to the circumstances under which the objectant claims the will was executed.
Demands for bills of particulars and responses are governed by CPLR 3041 and 3042, as well as the Uniform Rules for Surrogate's Court (22 NYCRR) § 207.23. The latter section provides:
" § 207.23 Bills of particulars in contested probate proceedings.
(a) In any probate proceeding in which objection to probate is made upon the grounds that the execution of the propounded instrument was procured by fraud or undue influence and the proponent demands or moves for a bill of particulars, the proponent shall be entitled as of course to the following information:
(1) the specific act or acts or course of conduct alleged to have constituted and effected such undue influence, the person or persons charged therewith and the time or times and [**5] place or places where it is alleged to have taken place;
(2) the particular false statements, suppressions of fact, misrepresentations, or other fraudulent acts alleged to have been practiced upon the decedent, the place or places where the events are claimed to have occurred and the persons who perpetrated them;
(3) whether such acts were accompanied by an act of physical violence or mistreatment of the decedent or threats, and if so, the nature thereof."
"The object of a demand for particulars is to amplify the pleadings so as to eliminate surprise at trial, and not to serve as a further disclosure device (Matter of May, 17 AD2d 729, 232 N.Y.S.2d 39 [1962], quoting Elman v Ziegfeld, 200 App Div 494, 497, 193 N.Y.S. 133 [1922]; see also Nuss v Pettibone Mercury Corp., 112 AD2d 744, 492 N.Y.S.2d 240 [1985]; Weinstein-Korn-Miller, NY Civil Prac § 3041.11). A party is not obligated to [***3] respond to particulars on any issue that the party does not have the burden of proving at trial (see Matter of Reynolds, 38 AD2d 788, 328 N.Y.S.2d 155 [1972]).
In a probate proceeding the burden of proof on the issues of due execution and testamentary capacity is on the proponent (see Matter of Kumstar, 66 NY2d 691, 487 N.E.2d 271, 496 N.Y.S.2d 414 [1995]). On the other hand, the objectant has the burden of [**6] proof on issues concerning undue influence and fraud (see Matter of Castiglione 40 AD3d 1227, 1229, 837 N.Y.S.2d 360 [2007], lv denied 9 NY3d 806, 874 N.E.2d 749, 842 N.Y.S.2d 782 [2007]; Matter of Katz, 192 AD2d 327, 595 N.Y.S.2d 475 [1993]; Matter of Coniglio, 242 AD2d 901, 663 N.Y.S.2d 456 [1997]; Harris, New York Estates,24:166 [6th ed.]). Both under the CPLR and the Uniform Rules, the court may fashion any remedy that is just for either a refusal to comply with a demand for a bill of particulars, or an unduly burdensome demand (see CPLR 3042[d], [e]; CPLR 3126, 22 NYCRR § 207.23 [d]).
Against this backdrop it is clear that no proof should be taken solely for the purpose of submitting Objection 1 to the jury, and consequently, this objection is stricken without in any way precluding the proof that the objectant may adduce in support of any other valid objection (see CPLR 3126 [3]). Briefly, Objection No. 1, "that the will is not the last will of the decedent in that it did not express her true wishes and intent," is not a cognizable independent objection where, as here, there is no allegation of a forgery and there are objections alleging lack of testamentary capacity, undue influence and fraud.
Objection 2 contains the usual allegation of lack of testamentary capacity [**7] at the time the instrument was executed. As the proponent has the burden of proof on this issue, the objectant is not required to provide any further amplification of this objection (see Matter of Reynolds, 38 AD2d at 788). Nonetheless, in light of the fact that the objectant indicated in opposition to the instant motion that they were in the process of both obtaining an expert opinion on the issue of testamentary capacity and additional medical records, the branch of the proponent's motion seeking to preclude objectant from using any material not supplied to the proponent prior to the date that disclosure was to be completed is granted with respect to expert testimony and additional medical records unless, within 45 days of the date of the order to be entered hereon, the objectant furnishes to the proponent the information required under CPLR 3101 (d) (1) with regard to the expert's testimony and any additional medical records have been delivered to the court or otherwise made available to the proponent (see CPLR 3126 [2]).
Objection 3 alleges both fraud and undue influence, two separate objections. With respect to undue influence, the objectant claims that the proponent or his girlfriend [**8] exerted undue influence on the decedent to procure the instrument at issue. It is frequently said that "direct evidence of undue influence is seldom available. Accordingly, the law permits undue influence to be shown by facts and circumstances leading up to and surrounding execution of a will" (PJI 7:55). The objectant alleges that it was not natural for the decedent to devise her house solely to the proponent as the infant objectant had lived there with the decedent, and at the time the will was executed the decedent suffered from physical and mental distress because she was in the final stage of a "protracted battle with cancer" and because her daughter, the mother of the objectant, had committed suicide approximately one month prior to the will execution ceremony. The objectant also avers that the proponent and his girlfriend exerted undue influence is demonstrated by the fact that the proponent arranged for the decedent and the attorney drafter to meet, and the $50,000 bequest in the propounded instrument to the proponent's girlfriend in the event that the proponent predeceased the decedent is at the expense of the decedent's grandchildren with whom the decedent had a close [***4] relationship. [**9] Inasmuch as the response sufficiently appraises the proponent that the objectant will rely upon the facts and circumstances surrounding the execution of the instrument and the medical evidence and expert testimony concerning the decedent's condition in meeting his burden on the undue influence objection, the response on that issue is sufficient.
As the objectant has the burden of proof on the issue of fraud and admits that he is unaware of any specifics about any false statement that constitute the alleged fraud, preclusion is granted with respect to that branch of Objection 3 alleging fraud (see CPLR 3126 [2]; Matter of Ryan, 34 AD3d 212, 824 N.Y.S.2d 20 [2006] lv denied 8 NY3d 804, 862 N.E.2d 792, 830 N.Y.S.2d 700 [2007]; Matter of Coniglio, 242 AD2d at 901).
Objection 4 alleges that the decedent was "not of the physical ability to understand and/or appreciate the provisions of the will." As was the case with Objection 1, the objectant is not precluded from establishing the facts stated therein in support of his other valid objections, however, as these allegations do not support any objection independent of other valid objections, this objection is stricken (see CPLR 3126 [3]).
Finally, Objection 5 deals with "such other and further [**10] objections as may become apparent upon the production of discovery to be conducted in connection with this proceeding." The proponent correctly notes that the time for the objectant to interpose additional objections has long since passed, and he is precluded from doing so.
Any party who seeks summary judgment shall make the motion returnable no later than September 5, 2012. Thereafter, or following the court's determination of any summary judgment motion, the proceeding may be placed upon the court's ready for trial calendar upon compliance with Uniform Rules for Surrogate's Court (22 NYCRR) §§ 207.29 and 207.31.
Settle order consistent with this decision.