Opinion
February 14, 1994
Appeal from the Surrogate's Court, Westchester County (Emanuelli, S.).
Ordered that the decree is affirmed, with costs payable by the appellants personally.
Contrary to the appellants' contention, the trial court did not improvidently exercise its discretion by admitting into evidence a videotape of the will execution (see, Boyarsky v. Zimmerman Corp., 240 App. Div. 361, 364). The videotape was not offered in an attempt to probate the document as a will; rather, it was offered as evidence of the decedent's testamentary capacity. A proper foundation was laid; the three witnesses to the will execution and the attorney who supervised the will execution testified that the videotape was a fair and accurate depiction of the events which were filmed (see, People v. Fondal, 154 A.D.2d 476; Caprara v. Chrysler Corp., 71 A.D.2d 515, 523, affd 52 N.Y.2d 114; Richardson, Evidence § 138 [Prince 10th ed]). Moreover, the attorney who supervised the will execution also testified extensively as to the chain of custody of the videotape and testified that the tape did not appear to have been tampered with (see, People v. McGee, 49 N.Y.2d 48).
We further find that the jury's finding of testamentary capacity was not against the weight of the evidence (see, Nicastro v. Park, 113 A.D.2d 129). While the decedent had been diagnosed with terminal cancer, terminal illness alone does not negate testamentary capacity (Matter of Knight, 87 Misc. 577). There was evidence that the decedent understood the nature and consequences of executing a will, that the decedent knew the nature and extent of the property he was disposing of, and that the decedent knew the natural objects of his bounty (see, Matter of Kumstar, 66 N.Y.2d 691). There was also evidence that the decedent conducted business and managed his affairs around the time of the will execution and testimony that up until the last two days of the decedent's life the decedent was of sound mind (see, Matter of Kimball, 156 Misc. 338; Matter of Barney, 185 App. Div. 782).
The appellants' contention that the jury was prejudiced against them because of the jury's unanticipated extended service is unpreserved for appellate review (see, People v Foster, 64 N.Y.2d 1144, cert denied 474 U.S. 857), and, in any event, is merely speculative and insufficient to warrant a new trial (see, Snediker v. County of Orange, 58 N.Y.2d 647; People v Simon, 178 A.D.2d 447).
The appellants' remaining contentions regarding the proponent's summation are unpreserved for appellate review (see, Bichler v Lilly Co., 55 N.Y.2d 571, 583; Brennan v. City of New York, 108 A.D.2d 834, 836; Newsome v. Cservak, 130 A.D.2d 637, 638) and, in any event, are either without merit (see, Brennan v. City of New York, supra), or involve harmless error (see, O'Neill v. Mildac Props., 162 A.D.2d 441, 443; Murray v. Robin, 108 A.D.2d 903). Thompson, J.P., Rosenblatt, Altman and Hart, JJ., concur.