Surrogate Court Judge Peter Kelly, sitting in Queens County Surrogate Court, recently had a case presented to him where children of a decedent were challenging the validity of a will. The daughters claimed their parent could not read or write in the English language. They also claimed the will was not properly executed. The executor submitted evidence of the affidavits of the attesting witnesses which stated the decedent could read and write in the English language, and the will had been properly executed. The court took the position this created a presumption the will had been properly executed. In addition, the executor submitted other evidence including a self-proving affidavit and testimony the decedent was actually able to read, write and speak at the time of the execution of the will by the attorney draftsman and the witnesses to the will. In addition, testimony was submitted that the decedent did not suffer from any mental or physical illnesses or impairments at the time the will was executed.
Affidavits of Attesting Witnesses
The daughters had submitted affidavits to the court from attesting witnesses of an earlier will of the decedent. The affidavit of the attesting witnesses regarding the earlier will also stated the decedent could read, write and speak in the English language and had no sight, hearing, or other defects. This was in contradiction of their current position concerning the will sought to be probated.
No Triable Issue of Fact
Judge Kelly found the daughters of the decedent did not raise a triable issue of fact concerning the issue of the decedent’s capacity to enter into the will and the due execution of the will. Their objections were dismissed because they did not produce evidence sufficient to raise any questions of fact concerning the decedent’s testamentary capacity, the appropriateness of the execution of the will, or whether undue influence was exerted against her. The will was therefore admitted to probate.
