In re the Probate of the Will of Villani

25 A.D.2d 838, 270 N.Y.S.2d 145, 1966 N.Y. App. Div. LEXIS 4234

Opinion

Decree admitting will to probate unanimously reversed, on the law and the facts, with $50 costs and disbursements to abide the event, and the matter remanded for a new trial on the issue of testamentary capacity. The contestants objected to the probate of the will on the grounds of improper execution, fraud, undue influence and lack of testamentary capacity. After taking the testimony the Surrogate directed a verdict in favor of the proponents admitting the will to probate. On the issue of fraud there was no evidence at all. The subscribing witness, who testified to irregularities in the execution of the will, had suffered a cerebral hemorrhage before the trial and his testimony was so contradictory that it could only be concluded that he had no recollection at all of the events he was called to testify to. No undue influence was established by proof of facts but only as a conclusion from the testamentary dispositions made, which incidentally were in no way remarkable as contrary to the normal disposition to the natural objects of the testator’s bounty. So on these issues we agree with the determination made by the court below. On the question raised as to the testator’s capacity, there was sufficient evidence to present an issue for the jury to pass upon.

Concur — Rabin, J. P., Stevens, Eager and Steuer, JJ.