## Facts

- Mildred Rosasco died in 2006 at age 93, leaving an estate valued at about $2.8 million.
- In 1997, Rosasco executed a purported will leaving her estate to her two sisters and, if neither sister survived her, to her great-nephew, John Cella.
- Cella had been forced out of his parents’ apartment and moved in with Rosasco and her sisters in the same building; other family members also lived in the building.
- Cella was present at the will’s signing and had a contentious relationship with his sister, Kate.
- Witnesses described Cella as hostile toward Kate and toward Rosasco’s financial help to Kate, including episodes in which Cella berated Rosasco about Kate and hit Kate in Rosasco’s presence.
- Rosasco allegedly stated that she wanted to make a new will benefiting Kate, but also stated she feared Cella would harm her if she changed her will, and feared that after her death Cella would harm Kate and take Rosasco’s money anyway.
- By the time Rosasco died, both sisters had predeceased her, making Cella the sole beneficiary under the 1997 will.
- Rosasco’s nieces and nephews (including Cella’s mother) filed objections to probate alleging, among other grounds, that the will was procured by undue influence and duress.
- After discovery, Cella, as preliminary executor and proponent, moved for summary judgment dismissing all objections.

## Issues

1. Whether the proponent was entitled to summary judgment dismissing objections to probate based on lack of genuineness, improper execution, mistake, lack of testamentary capacity, and fraud.
2. Whether the proponent was entitled to summary judgment dismissing objections that the will was the product of undue influence.
3. Whether the proponent was entitled to summary judgment dismissing objections that the will was the product of duress, including alleged fear of physical harm to the decedent or to others.

## Decision

- The Surrogate’s Court granted summary judgment dismissing the objections based on lack of genuineness, improper execution, mistake, lack of testamentary capacity, and fraud, because objectants failed to offer proof supporting those claims after discovery.
- The court denied summary judgment on the objections alleging undue influence, finding that the record and reasonable inferences from it could support a finding that Cella exercised coercive control that caused the testamentary disposition.
- The court denied summary judgment on the objections alleging duress, finding triable questions as to whether the will resulted from threats or fear of wrongful harm sufficient to overbear the decedent’s volition.
- The remaining contest therefore proceeded toward trial on undue influence and duress.

## Legal Principles

- Summary judgment is appropriate only where the movant shows entitlement to judgment as a matter of law; evidence is viewed in the light most favorable to the opponent, and conclusory allegations are insufficient to raise a triable issue.
- In a will contest, objectants must produce affirmative proof; where discovery is complete and only speculation supports an objection, dismissal may be warranted.
- Undue influence in the probate context is influence that restrains independent action and destroys the testator’s free agency, causing a disposition that reflects another’s will rather than the testator’s.
- Undue influence is often proved by circumstantial evidence, including motive, opportunity, a relationship of dependence, and proof suggesting the influence was actually exercised to bring about the challenged disposition.
- Duress is distinct from undue influence and generally involves threats of, or actual commission of, a wrongful act (including threats of physical harm) that coerces the testator into executing or keeping a testamentary plan the testator would not otherwise have made.
- Where claims of undue influence or duress turn on state of mind, fear, and credibility, and the record supports competing inferences about coercion and causation, summary judgment is commonly inappropriate.

## Conclusion

In re Estate of Rosasco held that, although most probate objections failed for lack of evidentiary support after discovery, the objectants raised triable fact questions that the 1997 will may have been procured through undue influence or duress based on evidence of Cella’s conduct, hostility toward other family members, and the decedent’s stated fear of harm if she changed her testamentary plan, requiring resolution at trial.


In re Estate of Rosasco, 927 N.Y.S.2d 819 (2011)