Surrogate Rita Mella
Petitioner Ralls moved for summary judgment and dismissal of decedent’s brother’s objections that decedent lacked testamentary capacity, or that the propounded instrument was the result of duress or fraud. The instrument distributed the entire estate to petitioner. The court noted that while petitioner alleged objectant neither conducted his own discovery, nor answered her discovery demands, she failed to address his allegations of duress and fraud. It stated Ralls’ merely noting contemporaneous affidavits of the attesting witnesses stated decedent was “not under any restraint” was insufficient to make a prima facie showing the instrument was not the product of duress or fraud, among other things. Thus, summary judgment was denied as to claims of duress and fraud without prejudice to renewal upon completion of discovery. The court noted movant made a prima facie showing decedent had testamentary capacity as a presumption obtained from the contemporaneous affidavit of the attesting witnesses. However, it found objectant’s proof did not put into genuine controversy a material fact regarding due execution or testamentary capacity, dismissing such objections.
