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Proponent Moves for Judgement Pursuant to CPLR 4404


In a contested probate proceeding, the objectants appeal from a decree of the Surrogate’s Court, dated November 5, 2003, which, after reserving decision on the proponent’s motion pursuant to CPLR 4404 for judgment as a matter of law, made at the close of the evidence, and after the trial ended in a hung jury, upon the granting of the motion and determining that the will in question was duly executed and not a forgery, inter alia, directed that it be admitted to probate.

Ordered that the decree is affirmed, with costs payable personally by the objectants.

After the parties rested at trial, the proponent moved pursuant to CPLR 4404 for judgment as a matter of law. The Surrogate’s Court reserved decision on the motion and submitted the issue to the jury. After the trial ended in a hung jury, the Surrogate’s Court, upon granting the motion and determining that the will in question was duly executed and not a forgery, inter alia, directed that it be admitted to probate. Contrary to the objectants’ contention, the Surrogate’s Court properly entertained the motion after the trial ended in a hung jury.

Moreover, the Surrogate’s Court properly granted the proponent’s motion. Although the objectants alleged that the will was forged and not duly executed, they failed to adduce sufficient evidence, as a matter of law, to support their objections. Where, as here, the attorney-draftsperson supervised the will’s execution, there was a presumption of regularity that the will was properly executed in all respects. In addition, the self-executing affidavit of the attesting witnesses created “a presumption that the will was duly executed” and also constituted “prima facie evidence of the facts therein attested to by the witnesses”. The objectants failed to overcome this presumption, as a matter of law, because they relied upon either the failure of the attesting witnesses to recall the circumstances of the will’s execution or a highly selected reading of their prior deposition testimony which was controverted by the rest of the witnesses’ testimony. Furthermore, the testimony of the objectants’ expert did not, as a matter of law, establish that the will was forged.

The objectant comes now to Court and raised the issue of construction in some of the pro Paragraph ‘Fifth’ of testatrix’ will reads: ‘Enclosed in the same envelope with this Will are two sealed envelopes addressed to my four sons jointly. These letters contain information as to my wishes for the disposition of certain items of personal property. It do not bind my Executors by these wishes but ask they give consideration to them.’ One of the letters referred to, dated and simply signed ‘Mamma’, is a moving personal expression of her deep love and affecting for and abiding faith in her four sons. It makes no mention of her property. The other letter, undated and unsigned, suggests distribution of certain items of personal property. Petitioner presents both letters for the Court’s consideration as possibly incorporated in the will by reference.

As stated in the will, testatrix’ letters to her sons, her nominated executors, were not to bind them. Consideration for her wishes was all she asked. Her unattested memoranda of desire and expectation are intimately personal in their nature and are couched in terms of love and suggestion, but not of command. Neither her short and concise will nor the letters themselves evidence any intention to bring into the former the mass of detail contained in the latter which, if introduced, would change nothing and would not legally affect the administration or distribution of her estate. Accordingly, the first alternative prayer for relief, granting probate to the attested instrument together with the letters referred to in paragraph ‘Fifth’ thereof, is denied; the second alternative prayer for relief, admitting to probate only the attested instrument, is granted.

When a will is not properly written, it will not afford an uninterrupted proceeding for its allowance. Objections will always emerge in a poor written will.

To avoid this, be sure that you write your will with the assistance of Stephen Bilkis & Associates.

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