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Court upheld dismissal of unfounded allegations of lack of due execution. Blasi v. Blasi (In re Martinico), 177 A.D.3d 882 (N.Y. App. Div. 2019)  


In this case, the Appellate Division, Second Department, considered whether the Surrogate’s Court of Kings County erred in dismissing the objectant’s objections and admitting the decedent’s will to probate.

The decedent died on May 20, 2014 leaving a will dated March 28, 22014. The petitioner filed a petition for probate on July 22, 2014. Several people filed objectants claiming lack of due execution, lack of testamentary capacity, undue influence, and fraud. The Surrogate’s Court dismissed the objections and admitted the will to probate.  An objectant appealed.

Lack of due execution
In New York, for a will to be admitted to probate, it must have been executed in the manner specified by the statute. EPTL 3-2.1.

  • Signed by the testator. The testator must sign the will. There are some cases where the testator is unable to sign, such as due to medical issues. The law allows for a will to be signed by someone other than the testator.  However,  the testator must direct the person to do so, and the person must sign it in the presence of the testator.


  • Signed by witnesses. The will must be signed by at least two witnesses.  The testator can either sign the will in front of the witnesses or acknowledge to the witnesses that the document is his will.  The testator can sign the will and acknowledge the signature to the witnesses on another date.  However, the witnesses must sign it within 30 days of the testator signing.


  • Declaration. Sometime during the execution ceremony, the testator must declare to the witnesses that the document that they signed is their last will and testament.


When there is an allegation that a will was not duly executed, the burden is on the petitioner or proponent of the will to show that it is valid.

In Blasi v. Blasi, the proponent met his burden.  He submitted a transcript of the deposition testimony of the attorney who drafted the will along with an affidavit. He also submitted a transcript of the deposition testimony and affidavit of the additional attesting witness. These documents demonstrated that the statutory requirements for due execution were satisfied.

The court also pointed out that in cases where the will was drafted by an attorney and that same attorney supervised the will’s execution, there is a presumption that the will was duly executed.

Lack of testamentary capacity
The objectant also argued that the will should not be admitted to probate because the testator lacked testamentary capacity. Under New York law, a testator must be of “sound mind and memory” at the time that they execute their will.

Testamentary capacity means that at the time they executed the will, the testator:

  • Understood the nature and consequences of executing a will.
  • Knew the nature and extent of the property they were disposing of. In other words, the testator had a general idea of the value of their estate and the assets that were part of their estate.
  • Knew the natural objects of their bounty. This means that the testator knew who their heirs were.

To make a prima facie showing that the testator did have testamentary capacity, the petitioner submitted hospital records, affidavits, and transcripts of depositions that demonstrated that the decedent possessed testamentary capacity at the time he executed his will.

The objectant did not produce evidence to challenge the petitioner’s prima facie showing.

Undue influence and fraud
Undue influence exists when someone illegally influenced a testator to make a will they would not have otherwise made.  It is more than simple influence where someone asks repeatedly to be included in the will or shows kindness to the testator in order to curry favor with them.

The burden is on the objectant to show that the influence was so extreme that it resulted in the testator being unable to resist and to lose independent action. The court found that the objectants submitted only conclusory allegations and speculation that the petitioner exercised undue influence over the decedent.

The Appellate Court found each of the allegations of the objectants’ to be  unfounded and affirmed the Surrogate’s Court decision.





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