Opinion
2016–10950 Index No. 950/15
03-06-2019
In the MATTER OF Christine E. CHRISTIE, Deceased. Pamela C. Kart, Respondent; v. John Scott Christie, Appellant.
Frank J. Blangiardo, Riverhead, NY, for appellant. Esseks, Hefter, Angel, Di Talia & Pasca, LLP, Riverhead, N.Y. (Anthony C. Pasca of counsel), and McNulty–Spiess, P.C., Riverhead, N.Y. (James Spiess of counsel), for respondent (one brief filed).
Frank J. Blangiardo, Riverhead, NY, for appellant.
Esseks, Hefter, Angel, Di Talia & Pasca, LLP, Riverhead, N.Y. (Anthony C. Pasca of counsel), and McNulty–Spiess, P.C., Riverhead, N.Y. (James Spiess of counsel), for respondent (one brief filed).
ALAN D. SCHEINKMAN, P.J., JOHN M. LEVENTHAL, JOSEPH J. MALTESE, VALERIE BRATHWAITE NELSON, JJ.
DECISION & ORDERIn a contested probate proceeding, the objectant, John Scott Christie, appeals from a decree of the Surrogate's Court, Suffolk County (John M. Czygier, Jr., S.), dated September 30, 2016. The decree, upon an order of the same court dated September 12, 2016, granting the petitioner's motion for summary judgment dismissing the objections to probate of the last will and testament of the decedent, admitted the will to probate.
ORDERED that the decree is reversed, on the law, with costs, that branch of the petitioner's motion which was for summary judgment dismissing the objection to probate based on lack of due execution is denied, and the order dated September 12, 2016, is modified accordingly.
The decedent died on February 6, 2015, survived by four children, including the petitioner Pamela C. Kart and the objectant John Scott Christie. The petitioner commenced this proceeding to admit to probate a last will and testament dated December 8, 2006. The objectant filed objections to probate on the grounds that the decedent lacked testamentary capacity, the will was not duly executed, and the will was the product of undue influence and fraud on the part of, among others, the petitioner. After discovery was complete, the petitioner moved for summary judgment dismissing the objections to probate. In an order dated September 12, 2016, the Surrogate's Court granted the motion and dismissed the objections. In a decree dated September 30, 2016, the court, upon the order, admitted the will to probate. The objectant appeals.
The granting of summary judgment in a contested probate proceeding is rare (see Matter of Greene, 89 A.D.3d 941, 942–943, 932 N.Y.S.2d 544 ; Matter of Shapiro, 65 A.D.3d 790, 791, 883 N.Y.S.2d 817 ; Matter of Paigo, 53 A.D.3d 836, 838, 863 N.Y.S.2d 508 ; Matter of Grubert, 139 A.D.2d 741, 742, 527 N.Y.S.2d 492 ). The proponent of a will has the burden of proving that the propounded instrument was duly executed in conformance with the statutory requirements (see EPTL 3–2.1[a] ; Matter of Collins, 60 N.Y.2d 466, 468, 470 N.Y.S.2d 338, 458 N.E.2d 797 ; Matter of Sabatelli, 161 A.D., 76 N.Y.S.3d 2073d 872, 873 ; Matter of Rottkamp, 95 A.D.3d 1338, 1339, 945 N.Y.S.2d 394 ). "If the attestation clause is full and the signatures genuine and the circumstances corroborative of due execution, and no evidence disproving a compliance in any particular, the presumption may be lawfully indulged that all the provisions of the statute were complied with, although the witnesses are unable to recollect the execution or what took place at the time" ( Matter of Kellum, 52 N.Y. 517, 519 ; see Matter of Collins, 60 N.Y.2d at 471, 470 N.Y.S.2d 338, 458 N.E.2d 797 ; Matter of Shapiro, 65 A.D.3d at 791, 883 N.Y.S.2d 817 ). Thus, even where the memory of both attesting witnesses is failed or imperfect, a will nevertheless may be admitted to probate ( Matter of Collins, 60 N.Y.2d at 468, 470 N.Y.S.2d 338, 458 N.E.2d 797 ; Matter of Shapiro, 65 A.D.3d at 791, 883 N.Y.S.2d 817 ).
Here, one of the attesting witnesses testified at his deposition that he did not draft the subject will. The other attesting witness believed that he had supervised the execution of the will, but he had no independent recollection of doing so. We disagree with the Surrogate's Court's determination that the petitioner presented evidence establishing, as a matter of law, circumstances which give rise to the presumption of regularity that the will was properly executed in all respects (cf. Matter of Templeton, 116 A.D.3d 781, 983 N.Y.S.2d 610 ; Matter of Farrell, 84 A.D.3d 1374, 923 N.Y.S.2d 885 ). Specifically, each attesting witness's affidavit contains a notary stamp with the year 2017, even though the will purportedly was executed in 2006. In moving for summary judgment dismissing the objection based on lack of due execution, the petitioner failed to eliminate all triable issues of fact (cf. Matter of Selvaggio, 146 A.D.3d 891, 891, 45 N.Y.S.3d 529 ; Matter of Rottkamp, 95 A.D.3d at 1339, 945 N.Y.S.2d 394 ). Accordingly, the Surrogate's Court should have denied that branch of the motion.
However, we agree with the Surrogate's Court that the petitioner made a prima facie showing of entitlement to judgment as a matter of law dismissing the objection based on the decedent's lack of testamentary capacity by submitting evidence that demonstrated that the decedent "understood the nature and consequences of making the will, the nature and extent of [her] property, and the natural objects of [her] bounty" ( Matter of Mele, 113 A.D.3d 858, 859, 979 N.Y.S.2d 403 ; see Matter of Kumstar, 66 N.Y.2d 691, 692, 496 N.Y.S.2d 414, 487 N.E.2d 271 ; Matter of Sabatelli, 161 A.D.3d at 874, 76 N.Y.S.3d 207 ). In opposition, the objectant failed to raise a triable issue of fact (see Matter of Rottkamp, 95 A.D.3d at 1339, 945 N.Y.S.2d 394 ; Matter of Herman, 289 A.D.2d 239, 240, 734 N.Y.S.2d 194 ).
We also agree with the Surrogate's Court that the plaintiff made a prima facie showing of entitlement to judgment as a matter of law dismissing the objection based on undue influence and fraud. In opposition to the petitioner's prima facie showing that the will was not the product of undue influence or fraud (see Matter of Rottkamp, 95 A.D.3d at 1339–1340, 945 N.Y.S.2d 394 ), the objectant failed to submit any evidence, beyond conclusory allegations and speculations, that anyone actually exercised undue influence over the decedent (see Matter of Eastman, 63 A.D.3d 738, 740, 880 N.Y.S.2d 157 ), or that fraudulent statements were made to the decedent to induce her to make a will disposing of her property in a manner contrary to that which she otherwise would have effected (see Matter of Mele, 113 A.D.3d at 860–861, 979 N.Y.S.2d 403 ; Matter of Rottkamp, 95 A.D.3d at 1340, 945 N.Y.S.2d 394 ).
Accordingly, we reverse the decree, deny that branch of the petitioner's motion which was for summary judgment dismissing the objection to probate based on lack of due execution, and modify the order dated September 12, 2016, accordingly.
SCHEINKMAN, P.J., LEVENTHAL, MALTESE and BRATHWAITE NELSON, JJ., concur.