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New York Appellate Court Declares Prior Will Revoked After Motions for Summary Judgement- In re Harper, 2019 NY Slip Op 50333(U) (N.Y. Surr. Ct., 2019)


The issue before the Surrogate’s Court is whether a copy of a subsequent will is sufficient to revoke a prior will and prevent it from being probated.

This matter is related to probating a will dated May 27, 1997, which is purported to be the last will and testament of decedent Harper. The petitioners are the executors named in the will, C. Harper and M. Harper. C. Harper is the decedent’s nephew, while M. Harper is his sister. The decedent has several distributees including his surviving spouse and children.

The will directs that the decedent’s personal property and real estate should be divided equally among his nephews, his sister, his 3 children. He left his surviving spouse the remainder of his estate. His will includes language that specifically disinherits any children born after execution of the document or any adopted children. The decedent’s surviving spouse and children filed objections to the will.
The surviving spouse had previously filed a motion for summary judgment, asserting that the decedent executed a later will, and in doing so revoked the will submitted for probate. However, only a copy of the later executed will exists. In order for a will to be valid and for the Surrogate’s court to admit it to prob ate, there must be proof that the will was executed in accordance with EPTL 3-2.1 and that the decedent possessed testamentary capacity at the time the instrument was signed. The spouse had not been able to 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 matter before the Surrogate’s Court now is a motion brought by one of the decedent’s children, S. Harper, that is identical to the motion previously brought by the surviving spouse. S. Harper argues that the 2006 will revoked the 1997 that the petitioners are attempted to probate. Petitioners assert that S. Harper’s motion is redundant since it is the same as the one previously filed by the surviving spouse and denied by the court. In response to the petitioner’s redundancy claim, the court disagrees, noting that the last claim was brought by the spouse, not S. Harper, and it was filed by a different attorney. The court concluded that it has the authority to dispose of the new motion on its own merits.

The person filing the motion for summary judgment must make a prima facie showing that there are no material issues of fact. If the moving party is not able to make a prima facie showing, the court will deny the motion. If the moving party is able to make the prima facie showing of entitlement to summary judgment, the burden shifts to the opposing party to submit evidence that there is an issue of material fact. Here, S. Harper must show that the 2006 will was properly executed, that the decedent had testamentary capacity at the time the will executed, and that it is a trust and correct copy. In addition, it must be shown that it was the intention of the decedent that the 2006 will revoke the 1997 will.

S. Harper was successful in making a prima facie showing. She submitted a copy of the 2006 document. It includes an attestation clause and a contemporaneous self-proving affidavit. In addition, S. Harper also included the deposition transcript of the two attesting witnesses and the notary to the 2006 instrument which were obtained subsequent to the denial of the surviving spouse’s motion for summary judgment. The court concluded that it was satisfied that the copy of the 2006 will that was presented was a true and accurate depiction of the original.
The petitioners failed to rebut S. Harper’s prima facie showing. Accordingly, S. Harper’s motion for summary judgment is granted and the probate proceeding was dismissed.

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