Opinion
10-19-2017
In re Will of Miriam SCHWARTZ, Deceased. Gloria Schwarz, Objectant–Appellant, v. Andrea NAMANWORTH, Proponent–Respondent.
Marzano Lawyers PLLC, New York (Naved Amed of Counsel), for appellant. McLaughlin & Stern, LLP, New York (Alan E Sash of Counsel), for respondent.
Marzano Lawyers PLLC, New York (Naved Amed of Counsel), for appellant.
McLaughlin & Stern, LLP, New York (Alan E Sash of Counsel), for respondent.
Proponent established prima facie that the decedent's will was duly executed by submitting the attesting witnesses' affidavits and the statements of the attorney who supervised the execution ceremony (see SCPA 1408 ; Matter of Halpern, 76 A.D.3d 429, 431, 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] ). Objectant failed to raise an issue of fact, citing no evidence of a material irregularity in the proceeding or of a lack of testamentary capacity on the decedent's part (see Matter of Korn, 25 A.D.3d 379, 808 N.Y.S.2d 48 [1st Dept.2006] ).
Nor did objectant raise an issue of fact as to undue influence or fraud (see Matter of Schuman, 132 A.D.3d 551, 21 N.Y.S.3d 1 [1st Dept.2015] ). The close familial relationship between the decedent and proponent counterbalances any inference of undue influence. Moreover, in light of the evidence that the decedent relied on proponent for assistance with daily living for a long time, her grant to proponent of a power of attorney does not shift the burden to proponent to explain the challenged bequests. In any event, proponent fully explained the bequests as a product of the decedent's grievances against objectant. As to fraud, objectant failed to present evidence of any false statements made to the decedent by proponent or her agents that caused the decedent to change her will.
No appeal lies from the denial of a motion for reargument (see Lopez v. Post Mgt. LLC, 68 A.D.3d 671, 890 N.Y.S.2d 827 [1st Dept.2009] ).We have considered objectant's remaining arguments and find them unavailing.
ACOSTA, P.J., FRIEDMAN, WEBBER, OING, and MOULTON, JJ., concur.