Hardenburg v. Ross (In re Armato)

199 A.D.3d 999

159 N.Y.S.3d 66

In the MATTER OF Ben N. ARMATO, deceased.

Maria Hardenburg, respondent;

v.Catherine Ross, appellant.

2018–08833

File No. 1908/15

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

Argued—October 21, 2021

November 24, 2021

Catherine Ross, White Plains, NY, appellant pro se.

Mitchell Pollack & Associates, PLLC, Tarrytown, NY (Mitchell B. Pollack and Eileen M. Burger of counsel), for respondent.

CHERYL E. CHAMBERS, J.P., ROBERT J. MILLER, ANGELA G. IANNACCI, WILLIAM G. FORD, JJ.

DECISION & ORDER

In a contested probate proceeding, the objectant appeals from an order of the Surrogate's Court, Westchester County (Brandon R. Sall, S.), dated May 10, 2018. The order granted the petitioner's motion for summary judgment dismissing the objections to probate of the last will and testament of the decedent and admitting the will to probate.

ORDERED that the order is affirmed, with costs.

On May 12, 2011, Ben N. Armato (hereinafter the decedent) executed a last will and testament before Joseph J. Staropoli, the attorney who drafted the will and supervised the will's execution, and Maria T. Chiodi, a paralegal. The will excluded the objectant, Catherine Ross, one of the decedent's three daughters. Following the decedent's death, the petitioner, Maria A. Hardenburg, another of decedent's daughters, commenced this proceeding to admit the will to probate, and Catherine Ross filed objections to probate.

After discovery was completed, the petitioner moved for summary judgment dismissing the objections to probate and admitting the will to probate. The Surrogate's Court granted the motion, and 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, 959–960, 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 the 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 by submitting, inter alia, the will, which contains an executed attestation clause and is accompanied by a self-proving affidavit, the affidavit and transcript of the deposition testimony of the attorney drafter/witness, and the transcript of the deposition testimony of the other witness, Maria T. Chiodi (see Matter of Sabatelli, 161 A.D.3d at 874, 76 N.Y.S.3d 207 ). In opposition to the prima facie showing, the objectant failed to raise a triable issue of fact. Contrary to the objectant's contention, an attesting witness's failure to recall certain details of the execution ceremony is insufficient to rebut the presumption of due execution (see Matter of Collins, 60 N.Y.2d 466, 471, 470 N.Y.S.2d 338, 458 N.E.2d 797 ; Matter of Farrell, 84 A.D.3d at 1374, 923 N.Y.S.2d 885 ).

In addition, the Surrogate's Court properly awarded summary judgment dismissing the objection alleging lack of testamentary capacity. In a will contest the proponent has the burden of proving that the testator possessed testamentary capacity, and the court must look to the following factors: (1) whether the testator understood the nature and consequences of executing a will; (2) whether the testator knew the nature and extent of the property being disposed of; and (3) whether the testator knew those who would be considered the natural objects of her or his bounty and her or his relations with them (see Matter of Kumstar, 66 N.Y.2d 691, 692, 496 N.Y.S.2d 414, 487 N.E.2d 271 ; Matter of Martinico, 177 A.D.3d 882, 884, 113 N.Y.S.3d 722 ). " ‘Less capacity is required to enable one to make a will than to make other contracts’ " ( Matter of Martinico, 177 A.D.3d at 884, 113 N.Y.S.3d 722, quoting Matter of Coddington's, 281 App.Div. 143, 146, 118 N.Y.S.2d 525 ). Testamentary capacity need only be shown at the time the will was executed, and physical weakness and senile dementia are not necessarily inconsistent with testamentary capacity (see Matter of Martinico, 177 A.D.3d at 884, 113 N.Y.S.3d 722 ; Matter of Giaquinto, 164 A.D.3d 1527, 1529, 83 N.Y.S.3d 728 ; Matter of Romano, 137 A.D.3d 922, 923, 27 N.Y.S.3d 86 ; Matter of Anella, 88 A.D.3d 993, 995, 931 N.Y.S.2d 408 ).

Here, the petitioner submitted prima facie evidence that the decedent possessed testamentary capacity at the time the will was executed in the form of the self-proving affidavit of the attesting witnesses and the affidavits and deposition testimony of those witnesses (see Matter of Martinico, 177 A.D.3d 882, 113 N.Y.S.3d 722 ; Matter of Sabatelli, 161 A.D.3d at 874, 76 N.Y.S.3d 207 ; Matter of Jacobs, 153 A.D.3d 622,...