Opinion
March 13, 1989
Appeal from the Surrogate's Court (Bloom, S.).
Ordered that the decree is affirmed insofar as appealed from, with costs.
At trial, the two subscribing witnesses and the attorney draftsman of the propounded will testified that the testatrix was of sound mind when she executed the instrument on March 26, 1985. The attorney draftsman also noted that she was aware of her assets and of the natural objects of her bounty (see, Matter of Kumstar, 66 N.Y.2d 691). The only evidence offered by objectant was the testimony of the testatrix's physician. He opined that, because of the testatrix's physical condition, she was not competent to execute a will and that it would be "impossible for anyone in her condition to understand what's going on in a will". On cross-examination, however, he testified that the physical condition on which these assertions were premised was "in general * * * not a bar in making a will" and that he had "no expertise" and could not "judge" whether she was mentally incompetent.
Under the circumstances presented here, we conclude that the Surrogate properly directed judgment on the issues of testamentary capacity and undue influence or fraud in favor of the proponents. The evidence offered by the objectants failed to refute the prima facie showing of testamentary capacity and to establish undue influence or fraud, and there was thus no issue of fact to be resolved by the jury (SCPA 503; Matter of Kumstar, supra, at 692; see, Matter of Hepburn, 114 A.D.2d 455, 456). Brown, J.P., Eiber, Sullivan and Harwood, JJ., concur.