In this contested probate proceeding, petitioner, Joyce Nelson Washington, the proponent of an instrument purporting to be the decedent’s Last Will and Testament dated July 25, 2016, moves for summary judgment dismissing the filed objections of Virginia Nelson and Malik Nelson, a/k/a Abdul Malik Nelson, respondents, and seeks respondents to pay petitioner’s costs and attorney fees. The objections are based on lack of due execution, lack of testamentary capacity, fraud and undue influence. Counsel for respondents filed an Affirmation in Opposition to the Summary Judgment Motion on December 5, 2018. Subsequently, counsel for petitioner filed a Reply Affirmation on December 12, 2018.Summary JudgmentSummary judgment may be granted in a contested probate proceeding when the proponent submits a prima facie case for probate and no material issues of fact exist. (In re Estate of Minervini, 297 AD2d 423, 3rd Dept 2002; see also, Matter of Wimpfheimer, 8 Misc 3d 538 Sur Ct, Bronx 2005; Phillips v. Kantor & Co., 31 NY2d 307, 1972.) It is the initial burden of the proponent to establish he is entitled to summary judgment as a matter of law (Zuckerman v. City of New York, 49 NY2d 557 1980). If a prima facie showing is made by the proponent, then the burden shifts to the respondent to produce sufficient evidentiary proof of material questions of fact in admissible form to defeat the motion for summary judgment (Id.). Furthermore, this evidentiary proof must be more than “mere conclusions, expressions of hope or unsubstantiated allegations or assertions” (Id.). However, summary judgment is a severe remedy, therefore, the respondent should be “accorded every favorable inference and issues of credibility may not be determined on the motion but must await the trial” (Matter of Wimpfheimer, 8 Misc 3d at 540).Due ExecutionThe rules governing the proper execution of wills including the formalities that must be followed can be found in EPTL 3-2.1. Before this Court, the petitioner has offered an instrument purported to be signed by the decedent on July 25, 2016 and witnessed by Janie Whitaker and Sharon Williams, which contains an attached Affidavit of Subscribing Witnesses signed by Janie Whitaker and Sharon Williams on July 25, 2016.Upon review of the testimony, each witness indicated the decedent declared his will to be his last will and testament and that they saw him sign the purported Will. Further, each witness testified under oath the decedent had called them and asked them to serve as witnesses (see deposition of Janie Whitaker, page 10 line 3 — line 15; page 11 line 20 — line 22; page 12 line 4 — line 7 and line 12 — line 14; page 15 line 13 — line 23; page 16 line 4 — line 14; deposition of Sharon Williams, page 9 line 13 — line 15 and line 22 — line 24; page 12 line 12 — line 14 and line 17 — line 19; page 13 line 4 — line 7).Additionally, the purported Will contains the following language above the witnesses signature: “The foregoing Will was signed, sealed, published and declared by the said Leroy Kevin Nelson, as and for his Last Will and Testament in the presence of us who were present at the same time and who, thereupon, at his request, in his presence of each other, have hereunto subscribed our names as witnesses.”Upon review of the purported Will and affidavit of subscribing witnesses and the testimony of the subscribing witnesses, the Court finds that the petitioner has made a prima facie showing of due execution (see, Matter of Kehoe, 2015 NY Slip 52015(u) Sur Ct, Jefferson 2015). The burden thus moves to the respondents.Counsel for respondents argue that the petitioner has not satisfied the statutory requirements of due execution. Counsel for respondents first argue that the purported Will was not supervised by an attorney and that the presumption of due execution cannot apply. Next, counsel for respondents argue that the testimony of the witnesses’ conflict as to whether the decedent and the witnesses were all in the room at the same time during execution.Further, counsel for respondents argues that the attestation clause in decedent’s purported Will is inaccurate based on the SCPA 1404 testimony of the attesting witnesses (see paragraph 7 of the Affirmation in Opposition). However, counsel for respondents provides no case law and/or statutory authority to further support this argument.While the testimony as to whether the witnesses were present at the same time may conflict with one another, the Court finds that the respondents have failed to raise a triable issue of fact. “Where the attestation clause is full and the signatures genuine and the circumstances corrobative of due execution, there is a presumption that all the provisions of the statute were complied with, even where the witnesses are unable to recollect the execution or what took place at the time.” (In re Estate of Collins, 60 NY2d 466, 458, N.E.2d 797, 470 NYS2d 338 1983; Matter of Kellum, 152 NY 517 1873; Matter of Cookson 2015 NY Slip Op 51814 (u) Sur Ct, Queens 2015). Even if the court were to consider respondents assertion that the witnesses were not both present at the same time, EPTL 3-2.1(A)(1)(C)(2) directs that the testator may either sign in the presence or acknowledge his signature to each witness separately.Counsel for the respondents does not address any of their other objections previously raised in their objections to probate regarding due execution nor does counsel provide any additional evidence to support those objections.Without any further evidence, the Court may only treat those objections as mere conclusory statements.Accordingly, the Court finds that the purported Will dated July 25, 2016 was executed in accordance with EPTL 3-2.1 even though the purported Will was not executed under the supervision of an attorney, and the branch of the motion to dismiss the objection regarding lack of due execution is granted and that the objection is dismissed.Other ObjectionsThe remaining objections to be addressed include testamentary capacity, undue influence and fraud. At this juncture, the record demonstrates that the completion of SCPA 1404 exams and other discovery may or may not have been completed. Accordingly, it is premature to grant summary judgment for the remaining objections. This portion of the motion for summary judgment is denied without prejudice with the right to renew upon completion of discovery.Costs and FeesThe portion of petitioner’s motion for costs and fees is denied.ConclusionAccordingly, the portion of the petitioner’s motion for Summary Judgment to dismiss the objection regarding due execution is granted. Further, the remaining portions of the motion for Summary Judgment are denied without prejudice with the right to renew upon completion of discovery. The petitioner was previously directed via Decision and Order of this Court dated May 25, 2018 to submit a 1411 Citation if necessary.This matter is restored to the court calendar on March 13, 2019 at 11:00 a.m. for control purposes. A copy of this decision shall be sent via regular mail to all parties.This decision shall constitute the order of the court.Dated: February 11, 2019
