In re the Estate of Tully

227 A.D.2d 288, 642 N.Y.S.2d 878, 1996 N.Y. App. Div. LEXIS 5392

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 21, 1996
• Status: Published

Opinion

Decree, Surrogate’s Court, New York County (Renee Roth, S., upon decision of Eve Preminger, S.), entered on or about August 4, 1995, which, inter alia, dismissed the objections of Charles Wadsworth and admitted to probate the Last Will and Testament of Alice Tully, unanimously affirmed, without costs.

On April 27, 1972, testator executed her will, which provided a general legacy to objectant. On June 5, 1975, testator executed a codicil cancelling the provision granting objectant’s legacy, and in its place substituted a legacy to objectant’s daughter. Two attorney witnesses to the execution of the codicil testified as to all the required formalities of execution, or that it was the firm’s practice to follow those formalities. This satisfied the proponents’ burden on the issues of due execution and testamentary capacity (Matter of Collins, 60 NY2d 466).

The draftsman of the codicil testified unequivocally that the testator directed him to revoke objectant’s bequest, that he had no input into her decision, and that he had never met objectant prior to the time the codicil was executed. Objectant presented no evidence raising any issue of fact as to fraud, undue influence or mistake. Accordingly, summary judgment dismissing the objections, and admitting the will to probate, was properly granted (see, Matter of Goldberg, 180 AD2d 528; Matter of Philip, 173 AD2d 543; Matter of Witkowski, 85 AD2d 807, lv denied 56 NY2d 505). Concur — Milonas, J. P., Ellerin, Rubin, Nardelli and Tom, JJ.