The Second Department determined the probate petition was properly dismissed. The presumption the will was properly executed was rebutted because the witnesses did not read the attestation clause before signing and there was evidence some of the pages of the will were missing at the time it was executed:
” A valid attestation clause raises a presumption of a will’s validity, [but] it is nonetheless incumbent upon [the] Surrogate’s Court to examine all of the circumstances surrounding the execution of the document in order to ascertain its validity'” … . In conducting this examination, ” the testimony of the attesting witnesses is entitled to great weight'” … .
Here, the attesting witnesses both testified at their depositions that they did not read the attestation clause. Under these circumstances, the attestation clause cannot carry any presumption that the will was properly executed … . The moving objectants met their prima facie burden of establishing that the purported will was not properly executed by submitting evidence that not all of the pages of the document alleged to be the decedent’s will were present at the time of the purported execution … . In opposition, the petitioner failed to raise a triable issue of fact … . Contrary to the petitioner’s contention, the evidence regarding the testamentary intent of the decedent does not raise a triable issue of fact because, with respect to due execution, ” courts do not consider the intention of the testator, but that of the legislature,'” such that the statutory requirements of due execution are determinative … . Matter of Costello, 2016 NY Slip Op 01322, 2nd Dept 2-24-16
TRUSTS AND ESTATES (WITNESSES DID NOT READ ATTESTATION CLAUSE, EVIDENCE PAGES OF WILL MISSING AT EXECUTION)/PROBATE (PROBATE PETITION PROPERLY DISMISSED, WITNESSES DID NOT READ ATTESTATION CLAUSE, PAGES OF WILL MAY HAVE BEEN MISSING AT EXECUTION)/ATTESTAION CLAUSE (WITNESS DID NOT READ, PRESUMPTION OF PROPER EXECUTION REBUTTED)/EXECUTION OF WILL (WITNESSES DID NOT READ ATTESTATION CLAUSE, EVIDENCE PAGES OF WILL MISSING AT EXECUTION)