You are here: / / Questions of Fact Re: Whether a Deed Was Forged and Whether a Will Was...
,

Questions of Fact Re: Whether a Deed Was Forged and Whether a Will Was Duly Executed

The Second Department determined there existed questions of fact whether a deed was a forgery and whether a will was duly executed.  In the course of the decision, the court explained: (1) there can be no bona fide purchasers or encumbrancers of real property based on a forged deed; (2) the transfer of title of real property devised under a will title vests on death not probate; (3) forged deeds are null and void ab initio; and (4) there was insufficient proof due execution of the will—no proof an attorney drafted the will or supervised its execution–no proof decedent possessed testamentary capacity:

Pursuant to Real Property Law § 266, a bona fide purchaser or encumbrancer for value is protected in his or her title unless he or she had previous notice of the alleged prior fraud by the seller … . However, a person cannot be a bona fide purchaser or encumbrancer for value through a forged deed, as it is void and conveys no title … . …

Generally, “title to real property devised under the will of a decedent vests in the beneficiary at the moment of the testator’s death and not at the time of probate” … . Here, however, since the validity of the will is being challenged by the petitioner, it was incumbent upon the respondents, as the proponents of the will, to prove due execution of the will and testamentary capacity … . …

… [T]he … evidence was insufficient to establish that the will was executed in accordance with the formalities required by law (see EPTL 3-2.1), and that the decedent was of sound mind and memory when he executed the will and understood the nature and consequences of executing the will … . While there is a presumption of regularity where the drafting attorney supervised the will’s execution …, here, there was no evidentiary support for the respondents’ conclusory contention that the will was drafted by [the attorney] or that he supervised the execution ceremony. Moreover, the respondents failed to adduce any evidence demonstrating that the decedent possessed testamentary capacity when he signed the will. Matter of Raccioppi, 2015 NY Slip Op 04135, 2nd Dept 5-13-15

 

You might also like
Although the Mortgage Note Was Discharged In Bankruptcy, the Bank Holding the Mortgage Note Had Standing to Bring a Foreclosure Action (In Rem) Seeking the Proceeds of the Foreclosure Sale—The Bank Could Not, However, Seek a Deficiency Judgment (In Personam) Against the Borrower
Criteria for Liability for Lead Paint Exposure Described
THE JUDGE SHOULD NOT HAVE DENIED THE MOTION TO DISMISS THE ARTICLE 78 PETITION/COMPLAINT AND THEN CONSIDERED THE MERITS OF THE PETITION/COMPLAINT WITHOUT ALLOWING RESPONDENT TO INTERPOSE AN ANSWER; THE JUDGE SHOULD NOT HAVE DISMISSED THE PETITION/COMPLAINT ON GROUNDS NOT ADDRESSED BY THE UNDERLYING ADMINSTRATIVE RULING (SECOND DEPT).
IF PLAINTIFF MOVED FOR SUMMARY JUDGMENT IN THIS ACTION TO SET ASIDE A DEED PLAINTIFF WOULD HAVE HAD TO PROVE THE DEED WAS FORGED; TO WIN A MOTION TO DISMISS BASED ON DOCUMENTARY EVIDENCE, HOWEVER, THE DEFENDANT MUST UTTERLY REFUTE PLAINTIFF’S ALLEGATION THE DEED WAS FORGED WHICH DEFENDANT FAILED TO DO HERE (SECOND DEPT).
Hospital Can Be Vicariously Liable for Actions of Non-employee Physician Under Apparent or Ostensible Agency Theory
FAMILY COURT PROPERLY PROHIBITED FATHER FROM POSTING BLOGS DISPARAGING THE CHILD’S RELATIVES ON SOCIAL MEDIA, BUT THE RESTRICTIONS WERE TOO BROAD IN THAT THEY WENT BEYOND THE NEEDS OF THE CASE (SECOND DEPT).
CITY DID NOT DEMONSTRATE IT DID NOT CREATE THE ROADWAY DEPRESSION WHICH CAUSED PLAINTIFF’S BICYCLE ACCIDENT, SUMMARY JUDGMENT PROPERLY DENIED.
IN THE FACE OF A COMPLETE WRITTEN AGREEMENT, EVIDENCE OF A RELATED ORAL AGREEMENT SHOULD NOT HAVE BEEN CONSIDERED, DEFENDANT’S MOTION TO DISMISS FOUNDED UPON DOCUMENTARY EVIDENCE (THE WRITTEN AGREEMENT) SHOULD HAVE BEEN GRANTED (SECOND DEPT).

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

Criteria for Setting Aside a Verdict as Against the Weight of the Evidence ... In Order for a Municipality to Be Liable for the Creation of a Dangerous Condition,...