A New York Probate Lawyers said that, this is an appeal from a decree of the Surrogate of Bronx County, based on a jury verdict, denying probate. Proponent was the attorney for the deceased more than 20 years. The propounded will, dated December 29, 1963, and a prior will, dated November 13, 1950, had been drawn by proponent. The witnesses to the propounded will subscribed the testimonial clause. They were the proponent, his wife, and a neighbor of decedent, presently incapacitated. At the time of the execution of the propounded will, decedent was 81. Prior to December 26, 1963, although with symptoms of rheumatoid arthritis, decedent enjoyed good physical and mental health, had full possession of all his faculties, and was in full and personal charge of all his financial and personal affairs. The family physician, on December 26, 1963, examined decedent, observed symptoms of an upper respiratory infection with low grade temperature, and prescribed an antibiotic and rest. He thereafter treated the deceased daily at his home. On January 1, 1964, there appeared positive symptoms of pneumonia, and he was hospitalized. He died January 2, 1964.
A New York Estate Administration Lawyer said that, the sole beneficiary and named executrix under the propounded will is his widow, now deceased. They had been married 29 years. There are no issue. Decedent’s other distributees are two brothers in New York, and a brother, four nieces and a nephew in Italy. Decedent was estranged from one of his New York brothers. Decedent’s attorney testified he had several talks with decedent and his wife prior to December, 1963, regarding a new will. The 1950 will passed the residue of the estate to the wife after providing for legacies to a brother in New York and his two children, and a brother in Italy. Decedent instructed the attorney to prepare a will bequeathing his entire estate to his wife. The attorney complied by preparing the propounded will. On December 26, 1963, an appointment was made for the execution of the will at decedent’s home on December 29, 1963. It was executed and witnessed at about 4 P.M. on said date.
A Bronx Estate Administration Lawyer said that, the family doctor testified he treated the deceased on December 29, 1963, at 9 A.M., conversed with him, and found him perfectly normal mentally and physically, except for his cold symptoms. The attorney and his wife were with the deceased on said date between 2:30 P.M. and 5 P.M., and conversed with him at length on the contents of the will and their respective families. Their testimony is the decedent was mentally alert, rational and sociable. A neighbor, visited with decedent and his wife on said date between 5:30 P.M. and 8:30 P.M. Contestants’ witnesses, were present when she arrived, but departed before her. There was conversation in which decedent participated, and he enjoyed cookies which had been baked and brought by Vera.
Westchester County Probate Lawyers said the issue in this case is whether the deceased had testamentary capacity.
There have been two trials. On the prior appeal, we held there was no evidence of fraud or undue influence, and ‘the testamentary dispositions were in no way remarkable as contrary to the normal disposition to the natural objects of the testator’s bounty. On the question raised as to the testator’s capacity, there was sufficient evidence to present an issue for the jury to pass upon.’ The matter was remanded for a new trial on the issue of testamentary capacity.
Suffolk County Probate Lawyers said he learned Surrogate aptly observed on proponent’s motion for a direction of a verdict at the close of the second trial: ‘There has been a great deal more testimony submitted by the proponent in this case than there was in the previous case: We have had the testimony of the Polish woman, and her husband, the testimony of another neighbor, and the testimony of a doctor. This is an entirely different record.’ Proponent’s said motion was ultimately denied. However, the Surrogate had been inclined to set aside the verdict that the deceased was not of sound mind at the time of execution of the propounded document, and said so in the following language: ‘All right, I will reserve decision. I am inclined to grant the motion.’ And again, in response to an inquiry of counsel, the Court stated: ‘No, I will set it aside. You won’t have to come back.’
In determining whether there is any evidence to sustain the finding of testamentary incapacity, we are limited solely to the consideration of the competent and relevant evidence. In determining whether or not there was any evidence to sustain a finding of fact we may consider only that which is competent and probative.’ The ultimate probate determination is the Surrogate’s. ‘If it appears to the surrogate that the will was duly executed; and that the testator, at the time of executing it, was in all respects competent to make a will and not under restraint; it must be admitted to probate.
Despite our limitation of the retrial to the issue of testamentary capacity, evidence was adduced, as at the first trial, relevant on but insufficient to establish fraud and undue influence, and wholly incompetent and irrelevant on testamentary capacity. It is indisputable that decedent on and prior to December 26, 1963, was possessed of testamentary capacity. Nevertheless, there was introduced the prior will dated November 13, 1950, more than 13 years before the execution of the propounded will. Also adduced was considerable evidence of decedent’s financial assistance to various members of his family. This evidence, wholly irrelevant, with the fact of the death of decedent’s widow, was placed before the jury in contestants’ summation. Contestants’ jury argument thereon seduced them to exercise their preference for the testamentary scheme of the 1950 will and ignore the issue of decedent’s testamentary capacity on December 29, 1963, at the time of the execution of the propounded will. We are required, in passing on the legal sufficiency of the evidence on testamentary capacity, to disregard the incompetent and irrelevant evidence.
The sole basis for contestants’ claim of testamentary incapacity is the testimony of the witnesses as to decedent’s physical condition on December 29, 1963, sometime after he had executed the propounded will. The inference most favorable to contestants is that decedent was either indisposed or physically exhausted during the time said witnesses visited with decedent.
The evidence of lack of testamentary capacity is too trifling ‘reasonably to satisfy a jury.’ The medical testimony of contestants is hypothetical and unfounded in fact.
For the foregoing reasons, we reverse the decree and direct probate. In any event, if we did not direct probate, we would set the verdict aside and direct a new trial, on the ground that the verdict of the jury is against the weight of the evidence.
The decree denying probate is reversed, on the law, with costs to all parties filing briefs, payable out of the estate, and the matter remitted to the Surrogate’s Court, Bronx County, to enter a decree admitting the propounded instrument to probate as the last will and testament of the decedent.
Accordingly, the court held that the decree is reversed, on the law, with $50 costs and disbursements to all parties filing briefs, payable out of the estate, and the matter remitted to the Surrogate’s Court, Bronx County, to enter a decree admitting the propounded instrument to probate as the last will and testament of the decedent.
In determining whether there is any evidence to sustain the finding of testamentary incapacity, the court is limited solely to the consideration of the competent and relevant evidence. If the testator lacks his testamentary capacity at the time he drafted the will, you may file an opposition on the probate of the will, call us at Stephen Bilkis and Associates. Our Bronx Estate Attorney and Bronx Probate Attorney can help you.