McInerney v. McInerney

79 A.D.3d 549, 912 N.Y.S.2d 402

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 16, 2010
• Status: Published

Opinion

Order, Surrogate’s Court, Bronx County (Lee L. Holzman, S.), entered on or about July 17, 2009, which granted petitioner’s motion for summary judgment dismissing respondent’s objections and admitting the will to probate, directed the issuance of letters testamentary to petitioner and denied respondent’s motion for summary judgment, unanimously affirmed, without costs.

The determination whether to dismiss objections and admit a will to probate is within the discretion of Surrogate’s Court, and its determination will not be disturbed absent a showing of an abuse of such discretion (see Matter of Colverd, 52 AD3d 971, 972 [2008]). Here, petitioner demonstrated a prima facie showing of due execution of the will, as it contained a valid atiestation clause and was executed under an attorney’s supervision (see Matter of Halpern, 76 AD3d 429, 431-432 [2010]). The burden then shifted to respondent to produce evidentiary proof in admissible form to rebut the presumption and raise an issue of fact (id. at 432). Respondent failed to do so, as he countered only with a bare assertion that decedent suffered from cognitive impairment, which was not supported by medical evidence or competent testimony (see Matter of Castiglione, 40 AD3d 1227 [2007], Iv denied 9 NY3d 806 [2007]). Concur — Gonzalez, P.J., Catterson, Acosta, Richter and Abdus-Salaam, JJ.