In re the Estate of Ziele

Appellate Division of the Supreme Court of New York

In re the Estate of Ziele

242 A.D.2d 576, 662 N.Y.S.2d 530, 1997 N.Y. App. Div. LEXIS 8785

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

DecidedSeptember 15, 1997

StatusPublished

Cited by3 cases

This text of 242 A.D.2d 576 (In re the Estate of Ziele) 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 Ziele, 242 A.D.2d 576, 662 N.Y.S.2d 530, 1997 N.Y. App. Div. LEXIS 8785 (N.Y. Ct. App. 1997).

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Opinion

In a contested probate proceeding, the objectant appeals from a decree of the Surrogate’s Court, Queens County (Nahman, S.), entered September 16, 1996, which, upon dismissing the objection to probate, admitted the decedent’s will to probate.

Ordered that the decree is affirmed, with costs payable by the petitioner.

The objectant contends that the testator’s will was not duly executed since the execution ceremony was performed in English and one of the witnesses did not fully understand English at the time the will was executed. The same witness could not recall the events of the execution when he testified at the hearing to determine whether the will was duly executed.

The evidence fully supported the Surrogate’s finding that the will was properly executed. Where an attesting witness has forgotten the occurrence or testifies against the execution of the will, and at least one other attesting witness has been examined, the will may be admitted to probate upon the testimony of the other witness and such other facts as would be sufficient to prove the will (see, SCPA 1405 [3]). The attorney-draftsman, who was also an attesting witness, testified that the requirements of EPTL 3-2.1 were complied with. The facts and circumstances surrounding the will ceremony confirmed this testimony. The witness whose memory had failed recognized his signature and demonstrated that, although he did not remember the execution ceremony, he knew about the terms of the will. Moreover, the execution ceremony was supervised by an attorney and therefore it is presumed that the ceremony complied with the essential provisions of the statute (see, e.g., Woolley v Woolley, 95 NY 231; Matter of Esberg, 215 AD2d 655; Matter of Posner, 160 AD2d 943). O’Brien, J. P., Sullivan, Altman and McGinity, JJ., concur. [As amended by unpublished order entered Mar. 9, 1998.]

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In a contested probate proceeding, the objectant appeals from a decree of the Surrogate’s Court, Queens County (Nahman, S.), entered September 16, 1996, which, upon dismissing the objection to probate, admitted the decedent’s will to probate.

Ordered that the decree is affirmed, with costs payable by the petitioner.

The objectant contends that the testator’s will was not duly executed since the execution ceremony was performed in English and one of the witnesses did not fully understand English at the time the will was executed. The same witness could not recall the events of the execution when he testified at the hearing to determine whether the will was duly executed.

The evidence fully supported the Surrogate’s finding that the will was properly executed. Where an attesting witness has forgotten the occurrence or testifies against the execution of the will, and at least one other attesting witness has been examined, the will may be admitted to probate upon the testimony of the other witness and such other facts as would be sufficient to prove the will (see, SCPA 1405 [3]). The attorney-draftsman, who was also an attesting witness, testified that the requirements of EPTL 3-2.1 were complied with. The facts and circumstances surrounding the will ceremony confirmed this testimony. The witness whose memory had failed recognized his signature and demonstrated that, although he did not remember the execution ceremony, he knew about the terms of the will. Moreover, the execution ceremony was supervised by an attorney and therefore it is presumed that the ceremony complied with the essential provisions of the statute (see, e.g., Woolley v Woolley, 95 NY 231; Matter of Esberg, 215 AD2d 655; Matter of Posner, 160 AD2d 943). O’Brien, J. P., Sullivan, Altman and McGinity, JJ., concur. [As amended by unpublished order entered Mar. 9, 1998.]

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242 A.D.2d 576, 662 N.Y.S.2d 530, 1997 N.Y. App. Div. LEXIS 8785, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-estate-of-ziele-nyappdiv-1997.

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