This is a proceeding to probate an instrument dated May 27, 1997 which is purported to be the last will and testament of the decedent. Petitioners are the nominated fiduciaries, Clint Brian Harper (“Clint”) and Muriel Harper (“Muriel”). Clint is the decedent’s nephew and Muriel is the decedent’s sister. The decedent’s distributees are his surviving spouse, Annette Harper (“Annette”), and his children, Shaka Glyne Harper II (“Shaka”), Andre Harper (“Andre”), Rafael Harper, Angela Barker, Faith L. Harper (“Faith”), and Glyne Leon Harper, Jr. (“Glyne”).The offered instrument provides for the decedent’s real estate and tangible personal property to be divided equally among Clint, Muriel, the decedent’s three sons (Shaka, Glyne, and Andre), and the decedent’s nephew, Chad Harper. The decedent’s wife, Annette, is left the remainder of the estate. The offered instrument explicitly disinherits any afterborn or after adopted children. Objections to the probate of the instrument were filed by Annette, Glyne, Shaka, Andre, and by Faith, through her guardian ad litem.The decedent passed away over ten years ago on December 31, 2008. This proceeding was commenced on March 24, 2010 but was then stayed pending the outcome of a proceeding brought to probate an instrument dated September 25, 2007. Eventually, after much costly and protracted litigation, that instrument was denied probate. Since then, the parties have continued to engage in voracious and time consuming litigation over the validity of this proffered instrument.Previously, Annette moved for summary judgment in her favor, seeking a dismissal of the within proceeding on the basis that the execution of a later instrument purporting to be the decedent’s last will and testament effectively revoked the instrument offered for probate in this proceeding. Only a copy of this instrument, dated March 6, 2006, exists.As explicitly stated in the decision determining that motion, although Annette was not petitioning for the probate of the 2006 instrument, the success of her revocation argument was contingent on its validity. Proving a testamentary instrument requires submission of evidence that it was duly executed in accordance with the requisites of EPTL §3-2.1 and that the decedent possessed testamentary capacity at the time the instrument was executed (see e.g., Matter of Mooney, 74 AD3d 1073, 1074 [2d Dept 2010]; Matter of DiChiaro, 39 AD3d 751 [2d Dept 2007]). Additionally, the copy of the 2006 instrument had to be proved to be true and complete (SCPA §1407[3]).In her previous motion, Annette failed to proffer evidence to establish that the 2006 will was properly executed and the decedent possessed testamentary capacity at the time the instrument was executed. Accordingly, Annette’s summary judgment motion was denied by decision of this court dated January 30, 2018.Now before the court is a nearly identical summary judgment motion brought by objectant, Shaka, which also seeks a determination that the 2006 instrument revoked the instrument presented for probate. Petitioners, both of whom are non-distributees, object to Shaka’s motion on the grounds that triable issues of fact exist, the motion is redundant, and that production of the copy of the “unauthenticated” 2006 will is “simply a ploy to plunge the Estate into Administrative chaos.” This last argument is made apparently as a result of amnesia regarding the last ten years of family conflict and litigation.In any event, as a threshold matter, the court turns to petitioners’ contention that the within motion cannot be entertained inasmuch as it is successive and redundant of Annette’s prior motion. Initially, the court observes that it was not Shaka that previously moved for summary judgment, but rather it was objectant, Annette, through separate counsel.Second, although the practice of making successive motions for summary judgment is disfavored, the instant motion is based upon deposition testimony conducted subsequent to the denial of the prior motion made by Annette. The court is therefore entitled to dispose of the motion on the merits, to which the court now turns (see McIvor v. Di Benedetto, 121 AD2d 519, 522 [2d Dept 1986]; Crossman v. Harding Indus. Tool, 222 AD2d 1081 [4th Dept 1995]; McNeil v. Wagner College, 246 AD2d 516 [2d Dept 1998]).Summary judgment is available only where no material issues of fact exist (see e.g. Alvarez v. Prospect Hosp., 68 NY2d 320 [1986]). The party seeking summary judgment “must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact” (id. at 324). The “[f]ailure to make such a showing requires denial of the motion, regardless of the sufficiency of opposition papers” (Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). However, once this burden is satisfied, the party opposing summary judgment must come forward with proof, in evidentiary form, establishing a genuine issue of material fact (see e.g. S.J. Capelin Assoc., Inc. v. Globe Mfg. Corp., 34 NY2d 338 [1974]). In this regard, “mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient” (Zuckerman v. New York, 49 NY2d 557, 562 [1980] (citations omitted)).In order for Shaka to succeed as a matter of law, he must demonstrate prima facie that [1] the 2006 instrument was properly executed and the decedent possessed testamentary capacity at that time; [2] the instrument is a true and complete copy of the 2006 instrument; [3] the instrument by its terms revoked the 1997 instrument; and [4] that the 1997 instrument was intentionally revoked by the decedent (see EPTL §3-4.1).In support of due execution of the 2006 instrument and decedent’s testamentary capacity, Shaka submits a copy of the instrument, which was purportedly drawn by the decedent, himself an attorney, and executed in the presence of two attesting witnesses. The instrument includes an attestation clause and a contemporaneous self-proving affidavit.Additionally, in contrast to the prior motion made by Annette, Shaka also includes copies of the deposition transcript of the two attesting witnesses and the notary to the 2006 instrument which were obtained subsequent to the denial of Annette’s motion for summary judgment.Therein, attesting witness, Patrick O’Keke (“O’Keke”), a practicing attorney himself, testified that the decedent was a “mentor” to him who strongly influenced his manner of practice. O’Keke’s testimony clearly indicated that the decedent observed all of the statutory formalities of due execution (see EPTL §3-2.1). Further, O’Keke identified his signature on the copy of the instrument as well as that of the decedent and the other witness. Attesting witness, Okechukwe Nnebe (“Nnebe”), wholly corroborated O’Keke’s testimony concerning the due execution of the instrument and the genuineness of the signatures that appeared on the copy.Finally, both O’Keke and Nnebe testified unequivocally that the decedent possessed testamentary capacity at the time of the execution of the 2006 instrument, and up until the time of his death. Indeed O’Keke described the decedent as a “very sharp man.” Nnebe testified that in 2006 the decedent “was a very brilliant and aggressive lawyer” and remained that way until “his last day.” There was no question that the decedent’s execution of the instrument was an act of his own volition.The foregoing evidence demonstrated prima facie that the 2006 instrument was duly executed (see EPTL §3-2.1; Matter of Selvaggio, 146 AD3d 891 [2d Dept 2017]; Matter of Templeton, 116 AD3d 781 [2d Dept 2014]; Matter of Mooney, 74 AD3d 1073 [2d Dept 2010]; Matter of Malan, 56 AD3d 479 [2d Dept 2008]) and that the decedent possessed testamentary capacity at the time of it’s execution. Moreover, given the circumstances of this case, the court is satisfied that the copy of the instrument is a true and accurate depiction of the original, notwithstanding the fact that some of the portions of the copy are blurred.As probate of the 2006 instrument as a lost will is not being sought, what is essential in this proceeding is not that all of the dispositive provisions in the instrument be perfectly displayed, but rather that the copy appears to the court to be authentic, complete, and effected a revocation of the 1997 instrument. Here, the blurred upper portion of text that begins on page two of the instrument and continues consistently at the top of each page indicates that the copy was made from an original bounded or stapled instrument. The paragraphs are consecutively numbered and the text reads in similar style as that of decedent’s other self-drawn testamentary instruments. In customary fashion, the instrument opens with the following pertinent language:I, GLYNE LEON HARPER, ESQ., a resident of and domiciled in the State of New York, make, publish and declare this to be my Last Will and Testament, revoking all wills and codicils at any time heretofore made by me.A will, once revoked, cannot be revived except by its republication in the presence of the attesting witnesses (see Matter of Stickney, 161 NY 42 [1899]). Here, the probate of the 2006 instrument is inconsequential (see e.g. Matter of Barnes, 70 AD 523 [4th Dept 1902]). In fact, it is uncontraverted that the original 2006 instrument was itself revoked. However, the revocation of the offered instrument dated 1997 was complete upon the due execution of the 2006 instrument (Matter of Huang, 11 Misc 3d 325 [New York County 2005]). Consequently, petitioners’ procedural and technical arguments are rejected.As the petitioners have otherwise failed to establish by the submission of admissible evidence the existence of any other triable issues of fact, the motion by objectant is granted. The court finds that the offered instrument dated May 27, 1997 was revoked by the execution of the 2006 instrument. Accordingly, the probate proceeding is dismissed and the court finds that the decedent died intestate.Settle decree.Dated: March 20, 2019
