Matter of H.
The purpose of this case is to probate a will dated 3/27/97, which is allegedly the last will and testament of the decedent. The petitioners here the fiduciaries CH & MH. CH is the nephew of the decedent and MH is the decedent’s sister. The decedent has several distributes including his surviving spouse and children.
The document states that the decedent’s personal property and real estate should be divided equally between the nephews, sister and his 3 children. The surviving spouse is left the remainder of the estate. The document specifically disinherits any children born after execution of the document or any adopted children. Objections to the document were filed by his surviving spouse and children.
While the decedent passed ten years ago, the proceedings were stayed due to another case in 2007. After a lengthy litigation, the instrument was denied. Since that time, the parties have continually been embroiled in litigation.
The surviving spouse made a motion for summary judgment. She contended that the execution of a later will revoked the only will that has been offered in this case. Also, only a copy of the document exists.
The success of the spouse’s prior motion was contingent on the validity of the will in question. In order to prove a testamentary document, it must be shown to have been executed in accordance with EPTL 3-2.1 and that the decedent possessed testamentary capacity at the time the instrument was signed (Matter of Mooney 74 AD3d 1073, 1074 [2d Dept. 2010]. A copy of the 2006 will had been proven to be authentic (SCPA 1407 ).
In a prior hearing, the spouse didn’t establish that the 2006 will was executed correctly and that the defendant was of sound mind. Therefore, her motion for summary judgment was denied.
The court now hears an identical motion brought by one of the children, S, who says that the 2006 document revoked the document presented to probate. Petitioners argue that the motion is redundant. They contend that bringing in the 2006 unauthenticated will simply puts the estate in chaos.
The court addresses the redundancy claim. The court notes however, that the last claim was brought by the spouse, not S.
While the court disfavors successive motions for summary judgement, this motion is based on a deposition of the spouse, which was taken after the prior ruling was made. Because of this, the court can dispose of the motion on its own merits (Crossman v Harding Indus Tools 222 AD2d 1801 [4th Dept.], McIvor v Di Benedetto 121 AD2d 519, 522 [2nd Dept. 1986], McNeil v Wagner College 246 AD2d 516 [2d Dept. 1998].
A summary judgment is appropriate where no material fact exists (Alverez v Prospect Hospital 68 NY2d 320 . The moving party must show entitlement as a matter of law and provide evidence to demonstrate the absence of material issues of fact. Failure to do so requires a denial of the motion.
However, if the burden is satisfied, the opposing party must come forward with proof showing an issue of material fact (Capelin Assc., Inc. v Globe Mfg. Corp. 34 NY2d 338 .
For S to prevail, it must be shown that the 2006 instruction was properly executed, the decedent has the testamentary capacity, and it was a true and correct copy. It must be shown that it intentionally revokes the 1997 will.
S was successful in proving these items to the court (Matter of Selvaggio 146 AD3d 891 [2d Dept. 2017]. The court is satisfied that the copy is true and correct. The court finds that the 1997 will was revoked by the 2006 document.
NY Slip Op50333
March 20, 2019