Surrogate Robert Gigante
Decedent’s children objected to proponent brother’s offering the subject will for probate, moving for summary judgment requesting it be declared null and void for fraud, undue influence, and lack of testamentary capacity. Proponent cross-moved for summary judgment dismissing the objections and admitting the will to probate. Decedent executed the will the day before he died naming proponent his executor and leaving the majority of his estate to his companion of nearly 26 years, Gatto, leaving out all but one of his children from the will. The court found movants failed to present evidence of a knowingly false statement made by proponent concerning the will’s drafting. Also, it found movants’ evidence was insufficient to overcome the presumption decedent had testamentary capacity. Thus, summary judgment on the issue of lack of testamentary capacity and fraud were denied. Yet, the court found issues of fact relating to the exertion of undue influence over decedent, and lack of due execution, noting Gatto hired the attorney, provided all relevant information in the will and was present with decedent during the execution of the document, which was not supervised by an attorney. The motion and cross-motion relating to undue influence and lack of due execution were both denied.
