Cases released on: December 28, 2018
Surrogate Lopez TorresESTATE OF YURY KRUTYANSKY, Deceased (17-2624) — In this contested probate proceeding, Natalya Krutansky (the petitioner) moves for summary judgment dismissing the objections filed by Alex Krutyansky (Alex) to her petition to probate a written instrument dated March 7, 2013 (the propounded instrument), which purports to be the last will and testament of Yury Krutyansky (the decedent).The decedent died on May 4, 2017, survived by his spouse, the petitioner herein, and two adult children of a prior marriage, namely Alex and Oleg Krutyansky (Oleg). On June 29, 2017, the petitioner filed the instant petition to probate the propounded instrument, and on November 28, 2017, Alex filed verified objections thereto. Alex interposes boilerplate objections to probate, including the decedent’s lack of testamentary capacity, lack of due execution and the exercise of undue influence by the petitioner. The propounded instrument provides that i) the petitioner shall receive all of the decedent’s tangible personal property, ii) the petitioner, Alex and Oleg shall share equally in the decedent’s business enterprises, iii) that the petitioner shall sell the decedent’s gas station, with Alex and Oleg having the right to purchase said business upon certain conditions, and iv) the petitioner, Alex and Oleg shall share equally in the decedent’s residuary estate.On September 13, 2018, the petitioner filed the instant motion for summary judgment, asserting that Alex lacks standing to object to probate of the propounded instrument. The petitioner asserts that Alex seeks to probate a prior written instrument pursuant to which he receives no interest in the decedent’s estate. Thus, the petitioner asserts, Alex has no pecuniary interest which is adversely affected by admission of the propounded instrument to probate. On October 2, 2018, the return date of the instant motion, Alex appeared and requested an extension of time in which to file opposition. Although his request was granted on the record, Alex has failed to file any opposition hereto.The court notes that, notwithstanding the petitioner’s assertion that Alex intends to offer for probate a prior purported will, no such petition has been filed, nor has Alex himself made any such assertion, orally or in writing.1 Nonetheless, Alex has failed to interpose any opposition to the instant motion to dismiss his objections. His failure to do so does not mandate granting the petitioner’s motion (Amec Construction Management, Inc., v. City of New York, 132 A.D.3d 547 (1st Dep’t 2015), as the moving party must establish prima facie entitlement to the relief requested.The proponent of a will has the burden of establishing its due execution and the decedent’s testamentary capacity. The court notes that the propounded instrument was prepared by an attorney, and where an attorney supervises the execution of a will, there arises a presumption of regularity and of proper execution in all respects. In re Tuccio, 38 A.D.3d 791 (2d Dep’t 2007). See also Matter of Schlaeger, 74 A.D.3d 405 (1st Dep’t 2010). While a testator is generally presumed to be of sound mind and to have sufficient mental capacity to execute a valid will (In re Benaway’s Will, 272 A.D. 463 [3d Dep't 1947]), once challenged, the proponent must establish a prima facie showing of capacity. The inclusion of the attestation clause and self-proving affidavit signed by both attesting witnesses creates “‘a presumption that the will was duly executed’ and also constitute[s] ‘prima facie evidence of the facts therein attested to by the witnesses.’” Matter of James, 17 A.D.3d 366, 367 (2d Dep’t 2005) (citing Matter of Clapper, 279 A.D.2d 739 [3d Dep't 2001]).The court is satisfied that the propounded instrument is genuine and was duly executed in accordance with the requirements of EPTL §3-2.1. Further, the court is satisfied that, at the time of execution, the decedent was competent to make a will and was free of restraint or undue influence. SCPA §1408.Accordingly, there having been raised no triable issues of material fact, the petitioner’s motion for summary judgment dismissing the objections is granted and the propounded instrument will be admitted to probate as the decedent’s last will and testament. Letters Testamentary shall issue to Natalya Krutyansky, upon her duly qualifying according to law. SCPA §708.Dated: December 28, 2018Brooklyn, New York
