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Petitioner Moves for Summary Judgment in Will Challenge Case – In re Will of Ballasalmo, 2017 NY Slip Op 50193(U) (N.Y. Surr. Ct., 2017)


Ballasalmo died at the age of 95, leaving 2 daughters, Knuth and Ayers as her distributees. Petitioner, the decedent’s niece-in-law, submitted a document dated August 16, 2007, purportedly as Ballasalmo’s last will and testament. The will stated that Ballasalmo’s entire estate was to be divided between the petitioner and her husband. The decedent expressly disinherited her daughters. As to be expected, both daughters filed objections to the will. The bases for their objections include that the will was not properly executed, that the decdent lacked testamentary capacity, that it was a mistake, and that it was made under fraud and duress. In response, the petitioner moved for summary judgment dismissal of the decedent’s daughters’ objections.

Summary judgment dismissal is a strategy that allows the moving party to basically win the case without going through the time and expense of a trial. In order to win a summary judgment, the moving party must establish a prima facie entitlement to judgment. In this case, the petitioner mush show that the will was executed according to the requirements of New York law, and that the decedent had testamentary capacity at the time the will was executed. In support of her motion, the petitioner submitted a copy of the decedent’s will which includes an attestation clause as well as a contemporaneous self-proving affidavit. The petitioner also submitted the transcripts of the SCPA § 1404 examinations of the attorney draftsperson who also supervised the execution of the will and of two of the three attesting witnesses.
The evidence submitted established prima facie evidence that the will was properly executed and in statutory compliance.

To rebut the petitioner’s evidence, the objectant relies primarily on the fact that during their 1404 examinations the witnesses could not specifically recall certain aspects of the execution ceremony. However, the law does not require this. Based on the evidence provided, the court concluded that the objectant failed to raise an issue of fact whether the requirements of EPTL § 3-2-1 have been satisfied.

The petitioner must also show that the decedent had testamentary capacity at the time that she executed the will. “Testamentary capacity” means that the decedent understood what it means to execute a will; was aware of the nature and extent of her estate; and knew who her heirs were. By submitting the self-proving will that states that the testator is of sound mind and memory, coupled with the 1404 transcripts of the attorney draftsman in which he testified that the decedent was “clear-minded,” the petitioner met her burden of presenting prima facie evidence that the decedent had testamentary capacity at the time that she executed the will. While the objectant provided an affidavit of a family member who stated that the decedent’s mental state had steadily declined after the death of her husband, the objectant did not offer any information related to the witness’ credentials or evidence that the witness was around the decedent at the time that she executed her will.

The court concluded that the petitioner submitted sufficient evidence that the will was duly executed in conformity with the legal requirements, that at the time of its execution the decedent had testamentary capacity, and that she was not under duress. Accordingly, the court granted the petitioner’s summary judgment motion and admitted the will to probate.

While they do happen, will challenges are relatively uncommon. The consequences of a successful will challenge is that the entire will may be declared void, or a particular portion may be voided. If the court declares that the entire will is invalid, and there is no prior valid will, the decedent’s assets will be distributed according to New York’s rules of intestate succession.

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