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Court Hears Case Regarding Validity of Will


On 16 June 2006, the decedent, LS, died and was survived by his wife, MS, and his brother, WS. Allegedly, he left a will dated 11 October 1967. Under the will, the residuary must be equally shared by LS’ mother, H, and his brother, WS, and if either individual predeceased, his or her share to the surviving beneficiary. H predeceased.

A New York Probate Lawyer said that consequently, the will was offered for probate. MS objected to the will’s admission. WS, the brother of the decedent, in turn, moved for an order pursuant to CPLR 3212 granting summary judgment dismissing the objections and admitting the propounded instrument to probate on the ground that it is genuine and was duly executed, or, in the alternative, admitted to probate under the ancient document rule of evidence.

The objections:

Brooklyn Probate Lawyers said that according to MS, the instrument offered for probate was not duly executed as required by law; at the time of the subscription or acknowledgment by LS, if such subscription or acknowledgment was in fact made, LS did not declare to at least two of the attesting witnesses that the said paper offered for probate was his Last Will and Testament; LS did not request that said witnesses be witnesses thereto; if LS signed the will, he did not do so in the presence of said witnesses nor did he acknowledge to each of them that the subscription appearing on the paper had been made by him; and, if LS did execute the instrument, he did not know, understand or was aware of its content, meaning and/or consequences when it was presented to him for execution.”

The summary judgment motion:

WS, the proponent, in support of his motion to admit the will to probate, submitted the following: his own affidavit; the deposition testimony of MA, a witness to the will; the SCPA 1406 affidavit of MA; the affidavit of KS, his wife; and, the affirmation of counsel.

In opposition, MS, the objectant, submitted the following: her own affidavit, the affirmation of DM, Esq., the same deposition testimony as proponent; a draft of decedent’s last will and testament dated June 2006; and, the affirmation of counsel.

The witnesses:

Bronx Probate Lawyers said there were three witnesses to the propounded will, LC, MP and MA. LC and MP are deceased.

According to MA, in 1967, she was a co-worker of LS’ mother, H, in the Social Security Administration office in Mineola, New York; she knew decedent by reason of his occasional visits to his mother at the office; they engaged in casual conversations; she, LC and MP all worked in the same room in close proximity.

According to WS, in his affidavit, upon LS’ passing, he was with his wife KS and LS’ wife, MS, in LS’ residence when LS’ safe was opened; and, they found in the safe the propounded document being offered for probate, among other personal effects.

According to MS, in her affidavit, in opposition to the motion, after her husband passed away, she and WS retrieved documents from her husband’s safe so that they could obtain papers relating to her husband’s service in the army that were required for his funeral arrangements; when the documents were retrieved from her husband’s safe, WS advised her that he located his grandfather’s will and his own birth certificate; WS then asked her if he could have the said documents; she told WS that he could have his grandfather’s will and his birth certificate; at no time did WS ever locate or claim to locate any document purporting to be her husband’s last will and testament from the safe; WS’ claim that the purported will of her husband was found in the safe is a total fabrication; and, there is a substantial question as to where the purported document was located and when.

According to DM, LS requested that he draft a will bequeathing all of his property to his wife, MS, other than certain items and personalty sometime in June 2006; and, LS specifically told her that he had never executed a will and that he wanted to create one for the protection of his wife.

According to KS, in reply, the proponent’s version is true as to where the propounded instrument was located, that is, from a safe in the decedent’s residence.

The ruling:

In a motion for summary judgment, “the proponent must make a prima facie showing of entitlement to judgment as a matter of law, tending sufficient evidence to demonstrate the absence of any material issues of fact. Failure to make such a prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers. Once this showing has been made, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action. Summary judgment in a contested probate proceeding is appropriate where an objectant fails to raise any issues of fact regarding execution of the will, testamentary capacity, undue influence or fraud. The remedy, however, is inappropriate where there are material issues of act.”

On the issue of due execution, the proponent has the burden of proof. “Due execution requires that the proposed will be signed by the testator, that such signature be affixed to the will in the presence of the attesting witnesses or that the testator acknowledge his signature on the propounded will to each witness, that the testator publish to the attesting witnesses that the instrument is his will, and that the witnesses attest the testator’s signature and sign their names at the end of the will. If the will execution is supervised by an attorney, the proponent is entitled to the presumption of due execution. Where an attorney states to the attesting witnesses, in the decedent’s presence, that decedent is executing a will, such statement meets the publication requirement. If the decedent does not expressly request that a particular witness sign the will, such a request may be inferred from a testator’s conduct and from circumstances surrounding execution of the will.”

Here, the execution of the propounded instrument was not supervised by an attorney; the testimony of the surviving attesting witness, given more than forty (40) years after the execution of the propounded instrument, does not directly support a finding of due execution as she could not recall with certainty the elements of due execution. Evidently, there are issues of fact as to due execution.

The ancient document ground, in the alternative:

As provided for by the rules, “a will may be admitted to probate as an ancient document where it is more than thirty (30) years old, taken from a natural place of custody and is unsuspicious in nature.”

Here, a question of fact exists as to where the propounded instrument was located after LS’ death. This precludes the application of the ancient document rule.

Accordingly, WS’ motion for summary judgment dismissing the objections was denied. The matter was later scheduled for a conference on 20 July 2010.

When a loved has passed on, we feel we have lost something precious. We are left with a huge hole in our hearts. What happens after it is even more painful, that is, when a dear one has left a will. Proving this isn’t an easy task and administering an estate is no joke as well. But, no more worries. We, at Stepehn Bilkis & Associates can help you. You can rely on our experts like Nassau County Probate Attorneys or Nassau County Estate Attorneys to ease the burden for you. Call us or visit any of our offices for a consultation.

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