Surrogate Peter Kelly, sitting in Queens County, recently had a case before him wherein a son objected to his father’s will being probated. The son, by his attorney, filed objections to probate. The objections alleged his father lacked testamentary capacity at the time of the execution of the will, the will was not properly executed, and there was undue influence over his father at the time of the will execution.
The decedent’s daughter moved for summary judgment requesting the will be admitted to probate and that her brother’s objections to the probating of the will be dismissed by the Court. A summary judgment motion is a motion made on papers which requests the court find there is no questions of fact regarding the application and that a trial will not be necessary to determine these issues.
The Judge Orders a Hearing
Surrogate Peter Kelly ordered a hearing. After the hearing, Surrogate Kelly found the daughter had submitted prima facie evidence the will was properly executed. The court took into consideration the execution of the will was supervised by an attorney, and this gave rise to a presumption the will execution had complied with all statutory requirements. Justice Kelly went on in his decision to state the son, who was objecting to the will, did not establish an issue of fact with regard to his father’s testamentary capacity at the time of the execution of the will. The only medical evidence submitted by the son was that his father was overweight. No evidence was submitted by the son to show his father lacked testamentary capacity at the time of the execution of the will. The court also stated in its decision there was not a “scintilla of evidence” suggesting the petitioner had been involved in unduly influencing her father with regard to the execution of the subject will.
The son’s objections to the probate of the will were dismissed and Surrogate Kelly allowed the will to be probated.
Elliot S. Schlissel is an attorney who practices before the Surrogates’ Courts throughout the metropolitan New York area. He probates wills, files accountings, and litigates estate related matters.
