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Decedent’s Granddaughter Alleges Failure of Due Execution, Fraud


New York Probate Lawyer said that on 20 March 2012, the decedent at the age of 107 years old died and left a will dated 1 August 1991. She was survived by three distributees, her daughter and the nominated executrix, OJ, and two grandchildren, AC and CC, children of decedent’s predeceased son, AKC.

A New York Estate Lawyer said that under the propounded instrument, after several pre-residuary cash bequests, the decedent left her real property to her daughter, and if her daughter predeceased her, to her son, the sole residuary beneficiary. On 30 September 1997, the first codicil to the propounded instrument was executed which added a few small pre-residuary cash bequests. On 3 September 1999, the second codicil was executed which again left the decedent’s real property to her daughter but in the event that her daughter predeceased her, such property was to be divided equally among her daughter’s three children subject to a life estate in decedent’s son-in-law, KJ.

Westchester County Probate Lawyers said that consequently, after the decedent’s death, the nominated fiduciary filed the probate petition.

The decedent’s distributee and granddaughter, CC, objected on the ground of failure of due execution, fraud and undue influence.

A Suffolk County Probate Lawyer said that after SCPA 1404 examinations were completed and some document discovery exchanged, the proposed executrix, the nominated fiduciary, filed a motion for summary judgment and seeks to dismiss CC’s objections.

CC filed a cross-motion to dismiss the probate petition.

The petitioner’s motion for summary judgment was granted, the objections are dismissed and the objectant’s cross-motion was denied in its entirety. The reasons for this ruling are discussed below.

First, on review of objectant CC’s cross-motion and responsive papers, it is apparent that she has abandoned all the objections she initially asserted sounding in fraud, undue influence and lack of testamentary capacity. What remained relates to the alleged failure of the decedent to subscribe her signature or acknowledge the execution of the instrument in the presence of the subscribing witnesses and to the alleged lack of any publication of the instrument as a will.

EPTL 3-2.1 (a) sets forth the formal requirements for the execution and attestation of wills. This provision states that the will must be in writing, signed at the end thereof by the testatrix, the signature must be affixed in the presence of each of the attesting witnesses or acknowledged by the testatrix to each such witness to have been affixed by her, she must declare to each attesting witness that the instrument is her will, there shall be two witnesses whose attestations shall be within a 30-day period, and the witnesses must sign at the testator’s request.

The proponent has the burden of demonstrating, by a preponderance of the evidence, that the purported will was duly executed.

While in situations where the attorney-draftsperson supervises the execution of a will, a presumption of regularity arises that the will was properly executed in all respects, there is no such presumption here as it is undisputed that there was no attorney present at the execution ceremony. However, it is also uncontroverted that despite the decedent’s failure to procure self-proving affidavits, the witnesses to the testamentary instruments executed affidavits of attesting witnesses except for the witness to the first codicil, ME, and the Court issued an order dispensing with his testimony.

The proponent here has established, and it is undisputed that the decedent’s will and both codicils were drafted by an attorney who is now deceased and contain attestation clauses. Well settled is the rule that a presumption of regularity or validity arises where the propounded instrument contains an attestation clause preceding the genuine signature of the attesting witnesses, and is prima facie proof of the facts recited therein.

The testimony of the attesting witnesses here is entitled to great weight even though the subscribing witnesses testify to the contrary or lack any recollection of the details of execution where there were gaps in the witnesses’ recollections of the circumstances under which they witnessed the will but the will was admitted to probate.

It is undisputed here that decedent knew all of the witnesses to the propounded will and two codicils for many years prior to the signing of the instruments.

SM was a witness to all three instruments, and his former wife, DR, was the witness to the propounded will.

According to SM, in his testimony, he knew decedent for over twenty years; despite the significant passage of time between the date of the will of 1 August 1991 and the date of his SCPA 1404 examination on 30 January 2013, he recalled that he was asked to witness decedent’s will and codicils and did, in fact, serve as a witness to all three instruments; he readily identified his signature and the signature of his former wife, and the other witness to the propounded instrument; and, he identified his signature on the first codicil, remembered sitting down at the table with decedent and going over her second codicil and specifically recalled decedent sitting next to him at the kitchen table requesting him to sign as a witness.

According to DR, in her testimony, she knew the decedent; she recalled that the decedent had been clear and coherent on 1 August 1991; at the time, the decedent recognized her and knew who she was; and, she was able to identify her signature on the 1991 instrument and that of her former husband, SM.

The other witness to the first codicil, ME, is now deceased.

The second codicil was witnessed by SM, AS and DS.

According to AS, in her testimony, she knew the testatrix for many years; her son married the decedent’s granddaughter; she was asked to be a witness to the decedent’s second codicil; when shown the second codicil, she identified her signature; the execution ceremony took place at decedent’s home, and on the date in question, the decedent was jovial; the decedent recognized her and her husband, they spoke, and the decedent asked her to sign the codicil; and, the decedent’s daughter was not present at the execution ceremony.

According to DS, the third witness to the second codicil, in his testimony, he knew the decedent well for a number of years; he identified his signature and his wife’s signature on the instrument; he recalled being present at decedent’s home on the date the instrument was signed but he did not recall who initially asked him to serve as a witness; on the date of the execution, the decedent was alert, and her general health seemed good; and, they spoke and observed the decedent sign the document on that day.

The court took note of the fact that although the recollections of the subscribing witnesses may be faulty as to the details of execution, the lack of any prior experience on the part of the subscribing witnesses rendered them unaware of the necessity of noting or recalling the essential formalities of execution. Further, in light of the passage of time which exceeded twenty-one years since the execution of the propounded instrument, an inflexible rule that the subscribing witnesses must remember in detail not only what they saw and heard but require them to recognize and identify the signature of decedent, could defeat the statute’s objective.

On the objectant’s claim that proof of publication is lacking as the provisions of the propounded instrument were not read aloud during the execution ceremony, well settled is the rule that there is no requirement that the document be read aloud. “Substantial compliance is sufficient and no particular form of words is required, or is necessary, to effect publication.” Some “meeting of the minds between the testator and the attesting witnesses that the instrument they were being asked to sign as witnesses was testamentary in character” is sufficient and a request to have the witnesses sign the will can be inferred from the circumstances surrounding the entire execution.

The surrounding circumstances here were sufficient to establish to the witnesses that the writing was a will. As the witnesses’ testimony makes clear, they knew the purpose of their visit to the decedent at her home and that they were being asked to sign as witnesses. A request to sign is inferable from the circumstances and the testimony demonstrates substantial compliance with the minimum statutory prescription for execution of the testamentary instruments. What’s more, on all three occasions, the decedent conducted the execution ceremonies without an attorney at her home and not in the presence of any of the beneficiaries to the instruments.

As provided for under the rules, summary judgment in a contested probate proceeding is only proper where the proponent makes out a prima facie case for probate and the objectant fails to raise any genuine material issue of fact. in order to defeat summary judgment, the objectant must assemble and lay bare affirmative proof to demonstrate the existence of a genuine triable issue of fact.

While it is true that the objectant’s responsive papers in support of her cross-motion to dismiss the proponent’s motion for summary judgment consist only of her attorney’s affirmation, it is nevertheless incumbent upon the Surrogate Court to examine all of the circumstances surrounding the execution of the document in order to ascertain its validity.

According to the decedent’s daughter, OJ, in her testimony, her mother had lived for many years in New York City although she maintained real property in Rhinebeck, New York where she visited on the weekends until she relocated to the property in the 1980’s.

It is undisputed that decedent, her daughter, son-in-law and their children resided in separate residences located on the property for many years, and her son-in-law made certain improvements to the property.

According to the proponent, the nominated fiduciary, in her testimony, she cared for the decedent by herself up until 2002; the decedent lived on her own without assistance but she brought her meals and performed other tasks; after the decedent fell and fractured her shoulder in 1997, the decedent was no longer as active as before; when the decedent underwent a major surgery in 2002, she was required to hire care givers; thereafter, the decedent suffered a slight stroke and the physician advised her that the decedent required 24-hour care; and, in 2007, in view of the doctor’s instructions, the decedent was moved to a nursing home.

The decedent’s estate plan here was remarkably consistent. Under the propounded instrument, the decedent gave all her personal and household possessions contained in her home to her son, divided all her tangible personal property including all insurance policies equally between her son and daughter, gave her daughter the real property, and her son was named the sole beneficiary of her residuary estate and if he predeceased decedent, then to his children. The first codicil merely provided for a few additional cash bequests to benefit decedent’s after-born great-grandchildren. The second codicil which objectant’s counsel deems “the least important of the three instruments” provided that following decedent’s daughter’s death, the real property be given to her daughter’s children subject to a life estate in her son-in-law rather than her son.

Under the circumstances, it cannot be said that the decedent’s daughter and her children were not the natural objects of a gift of her real property in light of the close proximity of their homes on the property for many years, the daughter’s role as a care giver to decedent, their close relationship and the improvements they had made to such property. In addition, the objectant’s contention that under the terms of the propounded instrument she was virtually disinherited is devoid of any merit. It is observed that decedent’s son was the beneficiary of her personal property and the sole beneficiary of her residuary estate, and if he predeceased decedent, which he did, the objectant and her sibling became the sole residuary beneficiaries of the decedent’s estate. Whether the objectant’s share of the decedent’s estate is not what she anticipated as her papers indicated, that claim cannot be properly addressed in the context of a contested probate proceeding and is thus not before the Court.

Last of all, the objectant’s contention that the decedent’s daughter, at her mother’s behest, arranged for an attorney (now deceased) located in White Plains, New York to draft the decedent’s will is more properly directed at an objection sounding in undue influence. As noted, this objection has been abandoned. Even so, as the decedent had not resided in Dutchess County but had been a long-term resident of New York County, it is not unusual that she would ask a family member for a recommendation as she knew few people in the area. Furthermore, it is undisputed the attorney performed other services for the decedent over the course of a decade.

As a rule, the determination whether to dismiss objections and admit a will to probate is within the sound discretion of the Surrogate Court and, absent a showing of an abuse thereof, its determination will not be overturned.

Here, the proponent has met her burden of proof with respect to due execution and the objectant failed to raise any issue of fact for trial. Thus, the proponent’s motion for summary judgment was granted, the objections were dismissed and the objectant’s cross-motion was denied. The genuineness of the Will and the validity of its execution have been established to the satisfaction of the Court and is therefore admitted to probate pursuant to SCPA 1408 and EPTL 3-2.1.

Be cautious of your rights. Know how to protect them. Contact us at Stephen Bilkis & Associates for assistance. Our Bronx County Last Will and Testament Lawyers, Bronx County Probate Lawyers, Bronx County Estate Litigation Lawyers, and the like, will help you with your legal predicaments. Call or visit any of our offices.

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