In this probate proceeding in the estate of Raye Warren, proponent moves to dispense with further testimony of an attesting witness to the execution of decedent’s will, and asks the court to admit the will to probate. Decedent died on August 13, 2014, survived by her spouse and their two daughters. The propounded will, dated March 14, 2013, was prepared by an attorney and was witnessed by the attorney-draftsperson and by decedent’s home-care aide. The will is unremarkable in form. It includes an attestation clause and a contemporaneous affidavit signed by the two attesting witnesses in conformity with SCPA §1406.Respondent, one of decedent’s daughters, appeared by attorney and sought pre-objection examinations (SCPA §1404). She noticed the examinations of proponent (the other daughter), decedent’s husband, and the two attesting witnesses. Proponent’s examination was held and concluded. The examination of decedent’s husband commenced but was not concluded before his death. Respondent has declined to examine the attorney-draftsperson. The aide appeared voluntarily for examination on October 27, 2016. Proponent’s counsel examined her and respondent’s counsel began, but did not complete, cross-examination. It was agreed that another date would be scheduled for the completion of her examination. The transcript of the aide’s testimony is attached to the moving papers, and it does not appear on its face to suggest that the will was invalid.Proponent’s counsel made repeated efforts to schedule a date to continue with the aide’s deposition but was unsuccessful. Respondent’s counsel also contacted the aide. She initially told him she would appear to complete the examination on a particular date, but she failed to do so. She was served with a subpoena but failed to comply with it. Proponent then moved to enforce the subpoena and served the aide with the resulting order. Proponent alleges that the aide refused to cooperate, and demonstrated such extreme distress so as to cast doubt on her ability to offer any further reliable testimony in the proceeding. Respondent does not refute petitioner’s description of events. Nor does she object to the court’s dispensing with the aide’s testimony.The aide’s conduct provides a sufficient basis for the court to exercise its discretion and dispense with her further testimony on the ground of her mental condition (SCPA §1405[1]; Matter of Sleight, NYLJ, Oct. 8, 2004, at 20, col 1 [Sur Ct, Richmond County]; Matter of Garzone, NYLJ, Apr. 25, 2000, at 27, col 6 [Sur Ct, Richmond County]).Proponent has amply met her burden of proving that the will was duly executed and that decedent had testamentary capacity. Due execution can be presumed both from the fact of attorney supervision (Matter of Falk, 47 AD3 21 [1st Dept 2007]) and from the attestation clause signed by both witnesses (Matter of Katz, 277 NY 470 [1938]). Further evidence of due execution is supplied in the form of a contemporaneous self-proving affidavit of both attesting witnesses (SCPA §1406). An additional affidavit by the draftsperson details his discussions with decedent for the purposes of preparing the propounded instrument. It further demonstrates that decedent had the requisite testamentary capacity, as do medical records dated around the time of the will execution.The court is thus satisfied that the propounded instrument is genuine, that it was validly executed and that at the time of its execution decedent was competent to make a will and not under any restraint (EPTL 3-2.1; SCPA 1408).Settle decree admitting the propounded will to probate.Dated: June 15, 2018
