Opinion
2014-10-23
In re Probate Proceeding, Will of Soilo VELASQUEZ, Deceased. Rosemary Velasquez, Proponent–Appellant, v. Vivian Velasquez, et al., Objectants–Respondents.
Lawrence James, New York, for appellant. Raymond Schwartzberg & Associates, PLLC, New York (Raymond B. Schwartzberg of counsel), for respondents.
Lawrence James, New York, for appellant. Raymond Schwartzberg & Associates, PLLC, New York (Raymond B. Schwartzberg of counsel), for respondents.
Order, Surrogate's Court, Bronx County (Nelida Malave–Gonzalez, S.), entered August 29, 2013, which denied proponent's motion for summary judgment dismissing the objections filed by objectants, and to admit to probate an instrument dated June 6, 2010, unanimously affirmed, without costs.
“Before admitting a will to probate the court must inquire particularly into all the facts and must be satisfied with the genuineness of the will and the validity of its execution” (SCPA 1408[1]. The burden of demonstrating that a will was duly executed lies with the proponent ( see Matter of Falk, 47 A.D.3d 21, 26, 845 N.Y.S.2d 287 [1st Dept.2007], lv. denied 10 N.Y.3d 702, 854 N.Y.S.2d 103, 883 N.E.2d 1010 [2008] ). Upon a showing of due execution, the burden shifts to the objectant “to produce evidentiary proof in admissible form to rebut the presumption and raise a material issue of fact” ( Matter of Halpern, 76 A.D.3d 429, 432, 906 N.Y.S.2d 253 [1st Dept.2010], affd.16 N.Y.3d 777, 919 N.Y.S.2d 503, 944 N.E.2d 1142 [2011] ).
Here, the court correctly found that the affidavits of decedent's friend and his great nephew were sufficient to raise an issue of fact as to whether the decedent could have been in New Jersey at the time the June 6, 2010 instrument was purportedly executed. Where, as here, there are issues as to whether the will was executed at the time and place claimed, and whether the will offered for probate was indeed the decedent's last will and testament, the matter should be submitted to a trier of fact (see Matter of Walter, 283 App.Div. 745, 128 N.Y.S.2d 25 [2d Dept.1954]; Matter of Quinn, 282 App.Div. 1049, 126 N.Y.S.2d 91 [2d Dept.1953] ). FRIEDMAN, J.P., SWEENY, ACOSTA, SAXE, MANZANET–DANIELS, JJ., concur.