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THE PETITIONER’S MOTION FOR SUMMARY JUDGMENT DISMISSING THE OBJECTIONS TO PROBATE ALLEGING LACK OF DUE EXECUTION AND UNDUE INFLUENCE SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Surrogate’s Court, determined the petitioner’s motion for summary judgment dismissing the objections to probate alleging lack of due execution and undue influence should have been granted. The objectants were the children of decedent’s son, who were excluded from any distribution from the estate. With respect to lack of due execution, the court wrote:

“The proponent of a will has the burden of proving that the propounded instrument was duly executed in conformance with the statutory requirements” … . “Where the will is drafted by an attorney and the drafting attorney supervises the will’s execution, there is a presumption of regularity that the will was properly executed in all respects” … . Although the evidence here did not establish that the execution of the will was supervised by an attorney, “a presumption of compliance with the statutory requirements also arises where a propounded will contains an executed attestation clause and a self-proving affidavit” … . Further, “even where the memory of both attesting witnesses is failed or imperfect, a will nevertheless may be admitted to probate” … .

Here, the petitioner established, prima facie, that the 2010 will was duly executed pursuant to EPTL 3-2.1 by submitting a copy of the 2010 will with its executed attestation clause and self-proving affidavit … . At their depositions, both attesting witnesses, who were employees of the drafting attorney’s law office, identified their signatures as witnesses to the 2010 will … . Both attesting witnesses testified as to the office’s general practice for will executions, which met the statutory requirements. In opposition, the objectants failed to raise a triable issue of fact. Matter of Michels, 2021 NY Slip Op 01978, Second Dept 3-31-21

 

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