Currently pending in this contested probate proceeding is a motion by the decedent’s spouse seeking to have SCPA 1404 exams conducted by written interrogatories, opposition to that motion by the decedent’s son and the son’s cross-motion for summary judgment seeking dismissal of the probate proceeding. The spouse filed opposition to the son’s cross-motion and both motions are submitted for decision. The decedent died on August 1, 2016 survived by the spouse, the son and two daughters. The propounded instrument is undated, contains what appears to be a self-proving affidavit which is dated July 3, 2002, nominates the spouse as executor and names her the sole beneficiary. The propounded instrument consists of a total of five pages; page four, the last dispositive page, contains a line for the decedent’s signature which is blank. The fifth page provides spaces for the signature of witnesses, however, no signature of any witness is contained on this page. Instead the decedent and two “witnesses” signed a separate page purporting to be a self-proving affidavit which was notarized on July 3, 2002. Once jurisdiction was complete in the probate petition, the son requested SCPA 1404 examinations and the matter was marked “objections to be filed within 10 days of completion of the 1404 exams.” According to the spouse, in July of 2002, while she and the decedent were living in Virginia, they had their wills drafted by a local attorney, who thereafter mailed a draft of both wills to the spouse and decedent, but did not thereafter oversee the execution of those documents. She avers that she and the decedent went to a local Parcels Plus shop where they both signed their wills and had them notarized. Both the drafting attorney and one “attesting witness” reside out of state, but are willing to cooperate and provide the court with testimony about the drafting and execution of the will; the second witness is deceased. In support of her request for written interrogatories the spouse contends that she cannot afford to pay the expenses connected with in-person depositions for the out-of-state witnesses, as the only asset of the estate is a condominium apartment she owned jointly with the decedent, and there are no other liquid assets that can be used for estate expenses. Moreover, she is retired and has very limited means to support herself, including paying the cost of the condominium apartment. In further support of his opposition to the request for written interrogatories the son argues, inter alia, SCPA 1404 requires that the spouse produce the witnesses, and as a potential objectant to the will, SCPA 1404 requires personal appearances so as to provide him the ability to personally examine and cross examine the witnesses, and moreover SCPA 1404(5) requires the estate to bear the cost of those examinations. He contends that the spouse has not provided the court with sufficient grounds to fall under the special circumstances which would allow for written interrogatories in place of in-person examinations. In support of his motion for summary judgment asking the court to dismiss the spouse’s probate petition, the son avers that even if the court were to allow the examinations to take place by written questions, the propounded instrument was not properly executed under the laws of the State of New York, as it does not contain an attestation clause and therefore must be denied probate. He also contends that the propounded instrument is not valid under the laws of the Commonwealth of Virginia and this court could not admit it as a foreign will pursuant to EPTL 3-5.1 and accordingly, the probate petition must be dismissed. In opposition to the summary judgment, the spouse avers, inter alia, that there are material issues of fact in dispute which would preclude this court from granting the son’s motion for summary judgment. She also submits additional documentation in support of her request that the SCPA 1404 exams proceed by written questions, including correspondence from the drafting attorney to the decedent and spouse regarding execution of the documents, a copy of the spouse’s will signed in the same manner as the propounded instrument and an affidavit from the surviving “attesting” witness. It is well settled that summary judgement is not appropriate when discovery is incomplete (see Jasco Tools, Inc. v. Rogers, 45 A.D. 3d 1296 [4th Dept. 2007]). Generally, in a contested probate proceeding, discovery will not be complete until, at a minimum, SCPA 1404 examinations have been completed (see Estate of Guide, NYLJ, Jun. 22, 1998, at 33, col. 4 [Sur. Ct. Nassau County]). Further, before admitting a will to probate, the court must be satisfied that the execution of the will was valid and this is so even if no interested party files objections to its validity (see SCPA 1408; Matter of Halpern, 76 AD3d 429 [1st Dept. 2010], affd 16 NY3d 777 [2011]; Matter of Falk, 47 AD3d 21, 26 [1st Dept. 2007], lv denied 10 NY3d 792 [2008]). The proponent has the burden of demonstrating by a preponderance of the evidence that a purported will was duly executed and signed (see Matter of Halpern, 76 AD3d at 429; Matter of Falk, 47 AD3d at 21; Matter of Pirozzi, 238 AD2d 833 [3d Dept. 1997]). Although the son correctly points out that the will does not contain an attestation clause and requests that the petition be dismissed, under New York law, “[e]ven in the absence of an attestation clause, a testamentary instrument may be admitted to probate based upon the totality of the evidence” (Estate of Sardo, NYLJ, Nov. 16, 2018 at 36) [Suffolk County], citing In re Phillips, 98 NY 267). Morever, the son’s attorney’s cursory statement that the propounded document is also not valid under the laws of Virginia is not sufficient for this court to make a determination whether, in fact, the document could be admitted as a foreign will pursuant to EPTL 3-5.1(c). On this state of the record, the court cannot make a determination as to the propounded instrument’s validity and denies the son’s motion for summary judgement motion, without prejudice. The spouse’s motion to conduct the SCPA 1404 examinations by written questions is also denied. Although the court has discretion regarding the information it allows to fulfill its obligations pursuant to SCPA 1408 to determine that a will may be admitted to probate, SCPA 1405 (2) provides that “[w]here an attesting witness is absent from the state and it is shown that his testimony can be obtained with reasonable diligence the court may and shall upon the demand of any party require his testimony to be taken by commission” (emphasis supplied). Accordingly, the court directs that the SCPA 1404 examinations be taken by personal appearance. This decision constitutes the order of the court. The Chief Clerk shall mail a copy of this decision and order to counsel. Proceed accordingly.
