Opinion
February 23, 1999
Appeal from the Surrogate's Court, New York County (Renee Roth, S.).
The Surrogate properly refused to admit in evidence the manuscripts offered by the objectant to establish lack of testamentary capacity. Objectant could not authenticate them due to the strictures of CPLR 4519. Nor was there any waiver of those strictures effected by the attorney-executor's testimony, since the attorney-executor did not testify to any transactions between the deceased and the objectant, and since, as the attorney who prepared the will, he was permitted to testify about the circumstances surrounding the will's preparation ( see, CPLR 4503 [b]; Matter of Wood, 52 N.Y.2d 139). Furthermore, there was no proof of intentional destruction of any relevant documents.
Finally, objectant was given sufficient notice by the Surrogate of the firm trial date to justify the Surrogate's denial of objectant's request for an adjournment by reason of his out-of-State attorney's scheduling conflict.
Concur — Sullivan, J. P., Ellerin, Williams and Wallach, JJ.