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Court Hears Complex Estate Litigation Matter


Surrogate’s Court, entered and admitted the document to probate as the last will and testament of testator.

The decedent, a physician, married his first wife who died before probate of the will.
Testator’s daughters from his first wife petition the court for probate the will testators have written in their favor.

First wife died, the decedent married his second wife. She also died leaving children of the second marriage intestate.

Children of the second marriage object the application for probate on the will presented by the children of the first wife. After having found a four page documents. Having thought that the documents that have found were the true will and testament of the decedent doctor, children of the second wife offered the document for probate.

A New York Probate Lawyer said there were three witnesses signed the will: decedent’s attorney and two other witnesses who worked in the medical office. All three of the witnesses’ signatures appear at the end of the will, underneath an attestation clause.

Will did name made a number of minor bequests to relatives and charitable organizations. The eldest daughter from the first marriage was mentioned in the will that was found by the second wife’s children.

The second wife’ children submitted a petition for admission of the will to probate. Only surviving attesting witness, was deposed.

First wife’s children filed objections to probate, asserting that the will was not duly executed.
Second wife’s children moved for summary judgment to admit the will to probate, and the first wife’s children cross-moved for summary judgment as well. Estate litigation courts held a hearing and concluded that there was no material issue of fact as to the due execution of the will. The first wife’s children appealed from the decree admitting the will to probate.
Before admitting a will to probate, estate Courts must be satisfied that the execution of the will was valid.

The second wife’s children had the burden of demonstrating, by a preponderance of the evidence, that a purported will was duly executed. If an attorney-drafter supervised the execution of a will, there was a presumption of regularity that the will was properly executed. In addition, a valid attestation clause raised a presumption of a will’s validity, although it was incumbent upon estate administration Courts to examine all of the circumstances surrounding the execution of the document to ascertain its validity.

The determination whether to dismiss objections and admit a will to probate was within the discretion of Will contest Courts, and its determination will not be overturned absent a showing of an abuse thereof.

A Staten Island Probate Lawyer said the decedent’s lawyer, prepared the will, served as an attesting witness, and billed the decedent, on the date of the execution of the instrument, for services rendered with respect to its preparation attorney’s presence at signing of will constituted prima facie evidence of will’s due execution.

The cover page of the will also contained decedent’s lawyer letterhead. Witness identified her signature and address on the document, and a handwriting expert verified the signatures of the decedent and other witnesses.

Estate Litigation Courts correctly concluded that the proponents demonstrated a prima facie showing of due execution of the will, as it contained a valid attestation clause and was executed under an attorney’s supervision, despite the fact that the sole surviving witness, witness, testified that she did not remember the will’s execution.

Upon the presumption of due execution, the burden then shifted to the first wife’s children to produce evidentiary proof in admissible form to rebut the presumption and raise a material issue of fact .

The formal requirements for the execution and attestation of a will, were; the signature of the testator shall be affixed to the will in the presence of each of the attesting witnesses, or shall be acknowledged by the testator to each of them to have been affixed by him or by his direction; the testator may either sign in the presence of, or acknowledge his signature to each attesting witness separately; the testator shall, at some time during the ceremony or ceremonies of execution and attestation, declare to each of the attesting witnesses that the instrument to which his signature has been affixed was his will. These formalities have been required to prove due execution of a will.

Will contest courts, before admitting a will to probate, must be satisfied that the execution of the will was valid, even if no interested party files an objection to its validity, and the burden of demonstrating that the purported will was duly executed laid squarely with the proponent, who must prove such by a preponderance of the evidence.

Although due execution may be shown by evidence other than the testimony of the attesting witnesses, it cannot be presumed in opposition to positive testimony, upon the ground that the attestation clause was in due form and states that all things were done which are required to be done to make the instrument valid as a will.

Although it was true that presumption of regularity was raised that the will was properly executed when an attorney drafted it and supervised its execution, and that presumption cannot be overcome merely because the attesting witnesses were not able to specifically recall the will execution

The estate litigation courts relied on testimony from the attesting witnesses in finding that the evidence warranted conclusion that the instrument was not subscribed by the decedent in the presence of the witnesses; that the paper was so folded that the witnesses did not see the subscription, and that the only declaration or acknowledgment of the party was in substance. The Court found insufficient to comply with the statutory requirements.

The formalities prescribed by statute must be observed, and Suffolk County Probate Lawyers said the attesting witnesses must be informed at the time and by the testator, or in his presence and with his assent, and have knowledge of all the facts necessary to a due execution and publication of the will, and to which they are called to attest. If the party does not subscribe in their presence, then the signature must be shown to them and identified and recognized by the party, and in some apt and proper manner acknowledged by him as his signature. The statute was explicit, and will not be satisfied with anything short of a substantial compliance with its terms.

Probate courts reiterated the requirement that the definite formalities of the statute, one of them being publication of the document as a will, be complied with in order for a will to be admitted to probate.

Summary judgment in a contested probate proceeding was rare, and should only be granted where the petitioner sufficiently establishes a prima facie case for probate and the respondent fails to raise any genuine issue of fact.

Estate litigations court relied on both the attestation clause and attorney-supervision presumptions, neither was applicable. Witnesses testimony raised material questions of fact with respect to whether the decedent declared the document she signed to be his will, whether the attorney-drafter supervised the execution, and whether any will ceremony ever had occurred witness acknowledged that she could not be certain given the passage of time, she testified both that there was never an occasion in which she signed a document in the presence of a lawyer and the decedent and that she was confident that such an event had not occurred.
Witness provided specific and credible reasons why she would remember a will ceremony if one had occurred. As she explained, she thought she would remember if the decedent had asked her to sign a document that he had declared to be his last will and testament. Similarly, witness gave a specific and credible explanation for why her signature nonetheless might appear on the will underneath the attestation.

A will ceremony was an unusual event was a matter of common experience. For this reason, will contest courts could conclude that, even 50 years later, a person might well remember participating in it. As the probate courts explained, embedding the will ceremony in the memory of the attesting witnesses was one of the very reasons for the statutory requirements. And estate courts were impressed by the demeanor and overall mental state of the person, that conclusion would be all the more reasonable.

Estate administration courts concluded that no estate courts reasonably could conclude that witness was correct that she remember a will signing ceremony if it had occurred. Although this startling conclusion was left unstated in the majority’s writing, it nonetheless was implicit in the will contest court’s ruling.

The key to this appeal was that the inference that witness would have remembered a will ceremony was one to which the first wife’s children was entitled.

By affirming, the estate courts vitiated the principle that the court’s function on a motion for summary judgment was issue finding, not issue determination. Although the will contest did not acknowledge that it was weighing the evidence and finding that the better conclusion was that the decedent executed the will in accordance with the statutory requirements, that was precisely what the majority does. Accordingly, summary judgment was granted.

Credible witnesses are what the law provides for witnesses attesting the wills and testament of a decedent. Their manifestations may injure or protect surviving heirs.

Stephen Bilkis & Associates with its skilled lawyers have easy access law companies throughout the New York Metropolitan area. Our lawyers can supply you with advocacy to direct you through life changing moments where your estate disappear because of another’s person stealing.

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