In re the Probate Matter of WB
2017 NY Slip Op 50193
February 9, 2017
BB was the decent in this matter and died at 95 years old with 2 daughters (TK and MA), which were the two distributes of her estate.
SV, a niece in law, submitted an instrument dated August 16, 2007, as BB’s last will and testament. The will stated that everything be divided between the petitioner and her husband, EV, a nephew in law. The decedent expressly left her two children out of the will. Understandably, both children filed objections to the validity of the document. They contend that the document wasn’t properly executed, it was a mistake and produced under fraud and duress. Petitioner moved for summary judgment. There was a cross-motion filed compelling discovery and arguing that triable issues of fact exist.
TK alleges in her cross motion that the essential discovery remains outstanding (Civil Pract. Law & Rules 3212(f) and says that a court can deny a summary judgment when the facts presented are present to deny opposition but can’t be stated (Peerless Ins. Cov. Allied Bldg. Prod. 15 AD3d 373[2nd Dept. 2005]. The mere fact that discovery isn’t complete isn’t enough to deny the motion.
The petitioner did indeed comply with the discovery demands. The objectant hasn’t properly demonstrated the existence of facts which would appropriately deny a summary judgment (Matter of Zinnsky 43 AD3d 946, Delany v Good Samaritan Hospital 204 AD2d 678 [2 Dept. 1994].
In order to have a successful argument for a summary judgment, the petitioner must establish a prima facie entitlement to judgment (Matter of Mooney 74 AD3d 1073[2 Dept. 2010]. It must be shown here that the will was properly executed, and the decedent had testamentary capacity when the will was signed.
The evidence submitted established prima facie evidence that the will was properly executed and in statutory compliance. The objectant relies on 1404 examinations of witnesses that couldn’t recall specific events. However, the law doesn’t require this (In re Estate of Collins 60 NY2d 466).
Based on the evidence provided, the court finds that the objectant failed to raise an issue of fact whether the requirements of EPTL 3-2-1 have been satisfied.
Challenging a will is not uncommon. Courts, as a rule, tend to stick as closely as possible to the language of the testator. The most common challengers of a will tend to be surviving spouses. The most frequent reason for challenging a will is usually lack of capacity or undue influence.
If a will is successfully challenged, the entire document can be voided, or just a particular potion can be deleted. If the entire will is canceled, the court will distribute assets as if no will existed. The distribution will follow applicable intestacy laws of the state.
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