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Petitioner Claims Will was not Duly Executed


Decedent died, survived by four children. Testator had written, signed and attested his will and named his sister as the executor of the will. Only the daughter objected the probate proceeding. In his will, decedent directed his sister to distribute his entire estate. The document reflected that the attesting witnesses were the draftsperson for the will and who represented the decedent in his divorce proceeding. The court also extended her office as executor.

The estate litigation courts received a motion for summary judgment designating decedent’s sister as executor in the letter testamentary. The only daughter of decedent objected. She opposed the extended office of decedent’s sister. For the reasons set forth by law, the motion was denied, and summary judgment was granted to decedent’s sister on the issue of due execution.

Daughter filed multiple objections to the will, focusing primarily on an alleged lack of due execution which were testified by two attesting witnesses for her favor.

A New York Probate Lawyer said that the present motion for summary judgment upon objections to probate and dismissal of the proceeding followed a lengthy delay in which a settlement was reached concerning of defendant’s nonprobate death benefits. No settlements were reached in connection with the distribution of decedent’s probate property, despite extensive efforts.

In decedent’s daughter affidavit annexed to the motion, daughter alleged that decedent’s sister cannot appropriately demonstrate due execution of the purported last will and testament. In support of this statement, daughter offers the following: one witness that cannot recall the will signing ceremony, other witness, despite her memory of decedent, did not testify based upon her recall of the specific action but relied instead on her personal knowledge of the usual office practice in the recognition of the signatures, and the execution of a self-proving affidavit. The self-proving affidavit was improperly notarized.

Daughter noted that drafter-lawyer testified that his usual practice was to have his secretary take the executed self-proving affidavit down the hall to another attorney’s office, where a notary public who was familiar with their individual signatures, would notarize the affidavit, after which the executed will would be returned to the office and be given to the client.

It was the notary public notarization which appears on the self-proving affidavit with two signatures. Manhattan Probate Lawyers said that the notarized affidavit were improper. Accordingly, she argued, that the self-proving affidavit affixed to the propounded will could not substitute for an actual or refreshed recollection of due execution of a purported testamentary instrument.

Daughter added that the invalidation of the self-proving affidavit due to alleged notary misconduct, when combined with the inability of witness to recall the will execution, leaves the drafter as the sole witness to the will. On this basis, daughter asserted that the probate courts should refuse to admit the propounded will to probate.

Testator failed to initial each page of his will. Daughter referenced of witness testimony that it was drafter practice to have the testator initial on each page of his will, and that decedent’s will only initiate on the first page, without explanation for departure from usual office practice.

The decedent sister’s counsel did not produce her for examination. Daughter claimed that drafter refused to produce the decedent’s sister for examination and that sister had made admissions to decadent children that raised the possibility of another the will having been executed by the decadent.

Summary was a drastic remedy, and only when there are clearly no triable issues of fact presented. In a proper case, the court’s granting of a summary judgment motions was not only appropriate, but denial of such a motion was reversible error, even in a probate proceeding. To prevail on a motion for summary judgment, decedent’s daughter must establish his or her fight to a directed verdict as a matter of law. If the daughter had meet these thresholds, the burden then shifts decedent’s sister to move against to bare his or her proof in opposition in evidentially form. Decedent’s daughter must not successfully rely merely on conjecture or surmise; a mere hope that somehow or other the daughter will be able to substantiate her allegations at trial was insufficient to deny summary judgment to a proponent who has made out a prima facie case.

The motion for summary judgment presently before the estate litigation court raised the following issues: no affirming witnesses on the self-proving affidavit; deny probate for lack of actual recollection of attesting witnesses in the ceremony, testator only signed the first page of the will, and drafter –lawyer failed to produced decedents sister for examination.

The estate administration court, in their intellectual opinion had penned the following analysis: witness to will execution may make an affidavit before any officer authorized to administer the oath stating such facts as would, if contradicted established the genuiness of the will and the validity of its execution.

The officer authorized to administer oaths or a notary public, certified that the subscriber appeared before her and swore to the truth of the contents by affixing a clause. Queens Probate Lawyers said that the jurat defined as a certificate added to an affidavit stating when, before whom and where it was made. The jurat on the self-proving affidavit affixed to decedents will stated: “severally subscribed and sworn to before me this day, the month and year”. The signature of the notary public follows and a log with her notary stamp.

Drafter testified that his office procedure as follows: drafter and witness to signed the affidavit as attesting witness; the office secretary to bring the attested will to the Notary Public office who then become familiar of drafter signature. He further testified that he has no reason to believe that there was anything done in a probate case which varied from usual procedure.

An out of court affidavit may be used to prove a will that passed the statutory requirements. A will was presumed to have been properly executed where the will was accompanied by a self-executing affidavit of the attesting witnesses.

The testimony of drafter as an attesting witness and as the supervising attorney, and witness as an attesting witness, established that the statutory requirements of the self-proving affidavit were not met. The affidavit was not made or sworn to by both affiants before the notary public. This was in accord with decedent’s daughter allegation contained in the jurat of the affidavit.

Estate litigation courts were in accord with decedent’s daughter first assertions, namely , the self-proving affidavit affixed to decedent will was a nullity for lack of statutory compliance.

The law had provided that a self-proving affidavit may serve as evidentiary proof of a will’s genuiness. The validity of the will’s execution, the competency of the testator to make a will and that the testator was not under restraint.

A self-proving affidavit cannot be accepted by the court if apart with standing raised an objection and such other reason the court determined that the witnesses to the will should be examined.

Daughter noted that witness has not actual recollection of decedent will ceremony, and asserts that the will cannot be admitted to probate on the basis of drafters testimony alone. Where a witness to a will no longer remembered the will execution, but at least one other witness to the will have been examined and remembered the occurrences, the court many admit the will to probate on the testimony of the witness who did remember the will signing ceremony and such other facts as would be sufficient to proved the will.

A will can be admitted to an estate administration courts notwithstanding attesting witness failed or possessed imperfect memory. Memories fade over time and witnesses become unavailable. In addition a will may be admitted to probate even if both witnesses cannot recall the will execution. Sufficient other facts may be presented to convince the probate court that the estate has been satisfied.

While witness did not specifically recall decedent’s execution of his will, both drafter and witness were personally familiar with the testator in connection with his representation by drafter firm in testator diverse preceding. Drafter and witness were also available to independently identify the signatures on the will. Both testified to the usual procedures of drafter’s law firm except as to the office practice in connection with the notarization of self-proving affidavits. Where a will includes a valid attestation clause, it provided prima facie evidence that the will was executed properly. Where the execution of a will was supervised by counsel, there were presumption of due execution in accordance with law. The court found that all elements, combined with drafter testimony of his recollection of the will signing ceremony and witness convincing testimony concerning usual office practice, were sufficient to establish that the will was executed in accordance with the law.

To rebut the presumption and raise a material issue of fact, daughter would have to offer evidence in admissible form, not hearsay, speculation and concluded allegations.

Daughter had failed to do so. There being no issue of fact concerning due execution, summary judgment was granted to decedent’s sister.

Probate courts will base their decision and judgment on facts offered as evidences not hearsay, speculations and gestures.

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