In re the Estate of Tabaczynski

217 A.D.2d 965, 629 N.Y.S.2d 904, 1995 N.Y. App. Div. LEXIS 8396

Opinion

Decree unanimously affirmed without costs. Memorandum: Valerie Tabaczynski died on April 30, 1992, survived by proponent, her niece, and contestant, her nephew. Her will, executed May 24, 1991, leaves $3,000 to contestant, $3,000 to a relative of decedent’s late husband and the remainder of the estate to proponent. Proponent, as executrix, petitioned for admission of the will to probate, and contestant filed objections.

The Surrogate properly granted the petition. The proof establishes that decedent, despite her age and ill health, was "of sound mind and memory” at the time the will was executed (EPTL 3-1.1; see, Matter of O’Brien, 182 AD2d 1135). The record also supports the Surrogate’s determination that the will was not the product of undue influence. "The circumstances surrounding the drafting and execution of this document fall far short of a showing that undue influence was exercised. On the contrary, they indicate that the will was the product of the free and unfettered act of the testatrix” (Matter of Walther, 6 NY2d 49, 54). (Appeal from Decree of Erie County Surrogate’s Court, Mattina, S.—Probate Will.) Present—Den-man, P. J., Green, Pine, Callahan and Davis, JJ.