In re the Estate of Weltz

Appellate Division of the Supreme Court of New York

In re the Estate of Weltz

16 A.D.3d 428, 791 N.Y.S.2d 141, 2005 N.Y. App. Div. LEXIS 2309

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

DecidedMarch 7, 2005

StatusPublished

Cited by21 cases

This text of 16 A.D.3d 428 (In re the Estate of Weltz) 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 Weltz, 16 A.D.3d 428, 791 N.Y.S.2d 141, 2005 N.Y. App. Div. LEXIS 2309 (N.Y. Ct. App. 2005).

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Opinion

In a contested probate proceeding, the objectant appeals, as limited by his brief, from so much of a decree of the Surrogate’s Court, Queens County (Nahman, S.), dated August 4, 2003, as granted those branches of the petitioners’ motion which were for summary judgment dismissing the second and third objections to probate, and that portion of the fourth objection which [429]*429alleged that the proponents procured the will through the exercise of undue influence, and admitted the will to probate.

Ordered that the decree is affirmed insofar as appealed from, with costs.

The Surrogate’s Court properly granted summary judgment dismissing that portion of the fourth objection which alleged that the proponents procured the will through the exercise of undue influence. The objectant failed to submit any evidence, beyond conclusory allegations and speculation, that the proponents actually exercised undue influence over the decedent (see Matter of Walther, 6 NY2d 49, 53, 54 [1959]; Children’s Aid Socy. v Loveridge, 70 NY 387, 394-395 [1877]; see also Matter of Herman, 289 AD2d 239, 240 [2001]).

The Surrogate’s Court also properly granted summary judgment dismissing the second objection finding that the will was duly executed pursuant to the formal requirements of execution and attestation set forth in EPTL 3-2.1. There was a presumption of regularity because the attorney-drafter supervised the will’s execution, and the objectant failed to overcome that presumption (see Matter of Weinberg, 1 AD3d 523 [2003]).

Lastly, the Surrogate’s Court properly granted summary judgment dismissing the third objection alleging lack of testamentary capacity concluding that at all relevant times, including when the will was executed, the decedent possessed the testamentary capacity to make a will, as she understood the nature and consequences of making a will, knew the nature and extent of her property, and knew those who would be considered the natural objects of her bounty (see Matter of Kumstar, 66 NY2d 691, 692 [1985]). H. Miller, J.P., Adams, Goldstein and Spolzino, JJ., concur.

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In a contested probate proceeding, the objectant appeals, as limited by his brief, from so much of a decree of the Surrogate’s Court, Queens County (Nahman, S.), dated August 4, 2003, as granted those branches of the petitioners’ motion which were for summary judgment dismissing the second and third objections to probate, and that portion of the fourth objection which [429]*429alleged that the proponents procured the will through the exercise of undue influence, and admitted the will to probate.

Ordered that the decree is affirmed insofar as appealed from, with costs.

The Surrogate’s Court properly granted summary judgment dismissing that portion of the fourth objection which alleged that the proponents procured the will through the exercise of undue influence. The objectant failed to submit any evidence, beyond conclusory allegations and speculation, that the proponents actually exercised undue influence over the decedent (see Matter of Walther, 6 NY2d 49, 53, 54 [1959]; Children’s Aid Socy. v Loveridge, 70 NY 387, 394-395 [1877]; see also Matter of Herman, 289 AD2d 239, 240 [2001]).

The Surrogate’s Court also properly granted summary judgment dismissing the second objection finding that the will was duly executed pursuant to the formal requirements of execution and attestation set forth in EPTL 3-2.1. There was a presumption of regularity because the attorney-drafter supervised the will’s execution, and the objectant failed to overcome that presumption (see Matter of Weinberg, 1 AD3d 523 [2003]).

Lastly, the Surrogate’s Court properly granted summary judgment dismissing the third objection alleging lack of testamentary capacity concluding that at all relevant times, including when the will was executed, the decedent possessed the testamentary capacity to make a will, as she understood the nature and consequences of making a will, knew the nature and extent of her property, and knew those who would be considered the natural objects of her bounty (see Matter of Kumstar, 66 NY2d 691, 692 [1985]). H. Miller, J.P., Adams, Goldstein and Spolzino, JJ., concur.

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Bluebook (online)

16 A.D.3d 428, 791 N.Y.S.2d 141, 2005 N.Y. App. Div. LEXIS 2309, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-estate-of-weltz-nyappdiv-2005.

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