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Court Decides Motion for Summary Judgment


A New York Probate Lawyer said the decedent died and her only distributee, other than the proponent and the objectant, is her daughter. The testamentary assets are valued at $6,000,000. The propounded instrument establishes a trust for the benefit of the proponent equal to the unified credit. It also contains legacies of $25,000 for each of the decedent’s seven grandchildren, including the objectant’s three children. The residuary estate is bequeathed outright to the proponent and the remainder interest in the unified credit trust is bequeathed to the decedent’s daughter or, if she does not survive the proponent, to the daughter’s four children. Paragraph Seventh of the instrument explains that no greater provisions have been made for the objectant because the decedent had provided for his children during her lifetime and because he will receive benefits in the future in the practice of the law commenced by the decedent’s husband in 1947. The propounded instrument contains an attestation clause and its execution was supervised by the proponent, an attorney.

Nassau County Probate Lawyers said in support of the motion, the proponent has submitted an affidavit from his attorney, an affidavit from the sole surviving attesting witness indicating that the instrument was executed with the required statutory formalities, and the deposition of the witness. The attesting witnesses couple who lived in the same apartment house as the decedent and the proponent and had been their friends for many years. The witness husband predeceased the decedent. The witness wife was 84 years of age when she was deposed. Understandably, she did not recall all of the particulars of the execution ceremony that had occurred more than a decade prior to the deposition. However, she did recollect that the execution ceremony took place in either her own apartment or the decedent’s apartment; that the only people who were present were herself, her husband, the decedent and the proponent; and that she knew that the decedent was executing a will and that she was acting as an attesting witness.

Here, a Staten Island Probate Lawyer said the motion for summary judgment is predicated upon the deposition which occurred prior to the filing of objections and, thus, prior to the provisions of Surrogate Court’s Procedure Act (SCPA) coming into play. Moreover, the two primary beneficiaries under the will support the instant motion. Thus, the only beneficiaries who could conceivably be prejudiced by not having received formal notice of the objections pursuant to SCPA are the grandchildren, who each receive a $25,000 legacy. One of the grandchildren is a minor. If jurisdiction had been obtained over him pursuant to SCPA, it would appear that the proceeding would be burdened with the expense of having a guardian ad litem appointed for him. However, it does not appear that either the objectant or any of the grandchildren will be prejudiced by the court’s entertaining this motion prior to the service of the SCPA citation upon the grandchildren notifying them that objections have been filed. To the extent that the motion is granted, the determination will inure to the grandchildren’s benefit. To the extent that the motion is denied, they would still have the right to participate in all future pretrial procedures or proceedings, including a motion for summary judgment based upon evidence adduced at such procedures. Considering these facts, the court, in the exercise of its discretion, concludes that it may entertain the instant motion notwithstanding the fact that SCPA jurisdiction has yet to be obtained over the grandchildren. Of course, if the objectant were the party who was seeking summary judgment, the court would not entertain the motion until SCPA jurisdiction had been completed. This is so because SCPA provides that beneficiaries who were not served with the SCPA citation would not be bound by the determination denying probate to the propounded instrument.

The objectant’s inconsistent position with respect to the 2003 will is not tenable. If the objectant is contending that the 2003 instrument is invalid because it was not duly executed in accordance with the statutory formalities, this would result in a determination that its revocatory provisions are also invalid. This is so because Estates, Powers and Trusts Law (EPTL) wisely requires that a revocatory instrument be executed with the same formalities as those needed to make a valid will. Similarly, if the objectant is contending that the 2003 instrument is invalid because the decedent lacked testamentary capacity at the time of execution, this would result in holding that as the testator was incompetent to make the dispository provisions of the will, he was equally incompetent to make its revocatory provisions.

For the reasons stated above, the objectant’s concession that the 2003 instrument is not a valid will precludes granting his contention that its revocatory provisions are somehow effective. Consequently, the court holds that the existence of the 2003 instrument, which no interested party seeks to prove is valid, is not an impediment to admitting the 1992 instrument to probate. Therefore, summary judgment is awarded in favor of the proponent, dismissing objection first, alleging that the 2003 instrument revoked the propounded instrument.

The objectant’s contention that the proponent has not established a prima facie case of due execution is based primarily upon the inability of the sole surviving attesting witness to recall all of the particulars of the execution ceremony. The objectant has not asserted that any of the signatures on the instrument are forgeries. The 84-year-old attesting witness did not give any testimony which would indicate the will was not validly executed. She testified that she doesn’t remember the dialogue really, but she assumes her friend told her to sign to bear witness to the will and that’s what she did. The imperfect memory of this attesting cannot be the basis to deny probate of the will. To the contrary, the proponent has met his burden of proof on the issue of due execution where, as here, the testimony of the attesting witness is buttressed both by the inference of due execution that arises from the supervision of the execution ceremony by an attorney and the presumption of due execution that arises when there is an attestation clause coupled with evidence of the signatures of the testator and the witnesses. Notwithstanding the objectant’s contention that the proponent’s memory and ability to perform legal services has greatly diminished over the past few years, he appears to question why the proponent has not given his detailed version of the execution ceremony that he supervised. In any event, the objectant has not cited any example that would lead to even an inference that in 1992, when the proponent and the objectant were law partners, the proponent did not know the requirements for the due execution of a will. Furthermore, the objectant has failed to offer any evidence to rebut the proponent’s prima facie case of due execution. Consequently, the motion to dismiss objection second is granted.

The affidavit and testimony of the attesting witness coupled with the provisions of the will suffice to establish that, when the propounded instrument was executed, the decedent possessed testamentary capacity, (she understood the nature and consequences of executing her will) she knew the nature and extent of the property of which she was disposing; and she knew the natural objects of her bounty and her relations with them. It would appear that if the objectant, upon information and belief were of the opinion that his mother lacked testamentary capacity, he would be able to provide some proof to support this contention. Instead, by parsing words, he attempts to show that some of the provisions in the instrument, which he does not like, reflect the decedent’s lack of testamentary capacity. Moreover, the objectant has not offered any explanation as to how the information contained in the gift tax returns that he requested would, standing alone, raise an issue of fact with respect to whether his mother had testamentary capacity when the propounded instrument was executed. Lastly, it is noted that the objectant’s contention that the motion is supported solely by the affidavit of an attorney, who did not witness any of the relevant facts, is simply not accurate. The motion is supported by the affidavit and deposition of the attesting witness. It is appropriate for counsel to make reference to those documents in his affidavit. Accordingly, the motion to dismiss objection third is granted. The motion for summary judgment is granted in its entirety.

Most of the time, a will is made to safeguard the interest and the better future of younger family members. If you want to probate a will for your children’s sake, consult the Bronx County Probate Lawyer together with the Bronx County Will Contest Attorney from Stephen Bilkis and Associates.

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