Capone v. Schmidt (In re Schmidt)

194 A.D.3d 723

148 N.Y.S.3d 477

In the MATTER OF John G. SCHMIDT, deceased.

Barbara M. Capone, respondent;

v.John Schmidt, Jr., appellant.

2017–13085

File No. 357862

Supreme Court, Appellate Division, Second Department, New York.

Argued—March 16, 2021

May 5, 2021

Steven Greenfield, West Hampton Dunes, NY, for appellant.

John P. Della Ratta, Jr., Greenvale, NY, for respondent.

REINALDO E. RIVERA, J.P., MARK C. DILLON, FRANCESCA E. CONNOLLY, VALERIE BRATHWAITE NELSON, JJ.

DECISION & ORDER

In a contested probate proceeding, the objectant, John Schmidt, Jr., appeals from a decree of the Surrogate's Court, Nassau County (Margaret C. Reilly, S.), dated October 17, 2017. The decree, upon an order of the same court dated August 4, 2017, granting the petitioner's motion for summary judgment dismissing the objections to probate of the last will and testament of the decedent dated March 24, 2009, admitted the will to probate.

ORDERED that the decree is affirmed, with costs.

On March 24, 2009, John G. Schmidt (hereinafter the decedent) executed his last will and testament before two disinterested witnesses and under the supervision of the attorney who drafted it. The will, inter alia, expressly disinherited the decedent's son, John Schmidt, Jr., "having generously provided for him during my lifetime." This will was the third since 1992 in which the decedent declined to provide for his son. Following the decedent's death, the petitioner, the decedent's daughter, Barbara M. Capone, commenced this proceeding to admit the 2009 will to probate, and the decedent's son filed objections to probate.

After discovery was completed, the petitioner moved for summary judgment dismissing the objections to probate. The Surrogate's Court granted the motion and admitted the will to probate. The objectant appeals.

In a contested probate proceeding, summary judgment is appropriate where a petitioner establishes a prima facie case for probate and the objectant fails to raise a triable issue of fact concerning the viability of the will (see Matter of Sabatelli, 161 A.D.3d 872, 873, 76 N.Y.S.3d 207 ; Matter of Moskowitz, 116 A.D.3d 958, 983 N.Y.S.2d 811 ).

"The proponent of a will has the burden of proving that the propounded instrument was duly executed in conformance with statutory requirements" ( Matter of Christie, 170 A.D.3d 718, 719, 95 N.Y.S.3d 286 ; see EPTL 3–2.1[a] ). "Where the will is drafted by an attorney and the drafting attorney supervises the will's execution, there is a presumption of regularity that the will was properly executed in all respects" ( Matter of Sabatelli, 161 A.D.3d at 873–874, 76 N.Y.S.3d 207 ; see Matter of Farrell, 84 A.D.3d 1374, 1374, 923 N.Y.S.2d 885 ). "Additionally, where the propounded will is accompanied by an attestation clause and a self-proving affidavit, a presumption of compliance with the statutory requirements arises" ( Matter of Sabatelli, 161 A.D.3d at 874, 76 N.Y.S.3d 207 ; see Matter of Mele, 113 A.D.3d 858, 860, 979 N.Y.S.2d 403 ).

Here, the petitioner demonstrated her prima facie entitlement to judgment as a matter of law dismissing the objections alleging lack of due execution through, inter alia, the will, which contains an executed attestation clause and is accompanied by a self-proving affidavit; the transcript of the deposition testimony of the attorney-drafter; and the transcripts of the deposition testimony of the attesting witnesses (see Matter of Sabatelli, 161 A.D.3d at 874, 76 N.Y.S.3d 207 ). Contrary to the objectant's contention, the notary of the self-proving affidavit was not disqualified by reason of his relationship to the successor executor-trustee named in the will or his relationship to the law firm nominated in the will to represent the executor in settling the decedent's estate (see Lynch v. Livingston, 6 N.Y. 422, 423 ). In opposition to the prima facie showing, the objectant failed to raise a triable issue of fact (see Matter of Hadden, 188 A.D.3d 686, 688, 135 N.Y.S.3d 124 ). Accordingly, the Surrogate's Court properly granted that branch of the petitioner's motion which was for summary judgment dismissing the objections alleging lack of due execution.

"Additionally, the proponent of a will bears the initial burden of establishing that the decedent understood the nature and consequences of making the will, the nature and extent of his or her property, and the natural objects of his or...