In re the Estate of Malan

Appellate Division of the Supreme Court of New York

In re the Estate of Malan

56 A.D.2d 479, 866 N.Y.S.2d 774

CourtAppellate Division of the Supreme Court of the State of New York

DecidedNovember 5, 2008

StatusPublished

This text of 56 A.D.2d 479 (In re the Estate of Malan) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In re the Estate of Malan, 56 A.D.2d 479, 866 N.Y.S.2d 774 (N.Y. Ct. App. 2008).

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Opinion

In a contested probate proceeding, the objectant Isabella Soma appeals from an order and decree (one paper) of the Surrogate’s Court, Westchester County (Scarpino, S.), dated July 13, 2007, which granted the petitioner’s motion for summary judgment dismissing her objections to probate and admitted the will to probate.

Ordered that the order and decree is affirmed, with costs payable by the appellant personally.

On her motion for summary judgment, the petitioner established that the subject will was duly executed pursuant to EETL 3-2.1. The attestation clause and self-proving affidavit give rise to a presumption of compliance with all statutory provisions (see Matter of Collins, 60 NY2d 466, 471 [1983]; Matter of Moskoff, 41 AD3d 481 [2007]). Moreover, although one of the two attesting witnesses who were deposed did not recall the execution ceremony, both identified their signatures on the will and affidavit of execution (see Matter of Rosen, 291 AD2d 562 [2002]). In opposition, Isabella Soma, the objectant to the will, failed to raise a triable issue of fact.

The petitioner also established that the decedent was [480]*480competent at the time the will was executed by showing that he understood the nature and consequences of making a will, the nature and extent of his property, and the natural objects of his bounty (see Matter of Kumstar, 66 NY2d 691 [1985]; Matter of Tuccio, 38 AD3d 791 [2007]; Matter of DiCorcia, 35 AD3d 463 [2006]; Matter of Weltz, 16 AD3d 428 [2005]; Matter of Rosen, 291 AD2d 562 [2002]). In opposition, the objectant failed to raise a triable issue of fact as to the decedent’s lack of testamentary capacity.

The objectant’s remaining contentions are without merit. Florio, J.E, Angiolillo, McCarthy and Chambers, JJ., concur.

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In a contested probate proceeding, the objectant Isabella Soma appeals from an order and decree (one paper) of the Surrogate’s Court, Westchester County (Scarpino, S.), dated July 13, 2007, which granted the petitioner’s motion for summary judgment dismissing her objections to probate and admitted the will to probate.

Ordered that the order and decree is affirmed, with costs payable by the appellant personally.

On her motion for summary judgment, the petitioner established that the subject will was duly executed pursuant to EETL 3-2.1. The attestation clause and self-proving affidavit give rise to a presumption of compliance with all statutory provisions (see Matter of Collins, 60 NY2d 466, 471 [1983]; Matter of Moskoff, 41 AD3d 481 [2007]). Moreover, although one of the two attesting witnesses who were deposed did not recall the execution ceremony, both identified their signatures on the will and affidavit of execution (see Matter of Rosen, 291 AD2d 562 [2002]). In opposition, Isabella Soma, the objectant to the will, failed to raise a triable issue of fact.

The petitioner also established that the decedent was [480]*480competent at the time the will was executed by showing that he understood the nature and consequences of making a will, the nature and extent of his property, and the natural objects of his bounty (see Matter of Kumstar, 66 NY2d 691 [1985]; Matter of Tuccio, 38 AD3d 791 [2007]; Matter of DiCorcia, 35 AD3d 463 [2006]; Matter of Weltz, 16 AD3d 428 [2005]; Matter of Rosen, 291 AD2d 562 [2002]). In opposition, the objectant failed to raise a triable issue of fact as to the decedent’s lack of testamentary capacity.

The objectant’s remaining contentions are without merit. Florio, J.E, Angiolillo, McCarthy and Chambers, JJ., concur.

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Bluebook (online)

56 A.D.2d 479, 866 N.Y.S.2d 774, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-estate-of-malan-nyappdiv-2008.

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