Surrogate Mella ESTATE OF WALNER TEMA, Deceased (17-2355/A) — At the call of the October 18, 2019 calendar, the court granted the motion of Faustin Tema, petitioner in a probate proceeding in the estate of Walner Tema, for summary determination of his petition, dismissal of objections, and the admission of the propounded instrument to probate. The propounded instrument contains an attestation clause followed by the signatures of two attesting witnesses, each of whom executed a contemporaneous affidavit. Execution of the propounded instrument was supervised by an attorney. Thus, petitioner made a prima facie showing that, at the time the propounded instrument was executed, decedent possessed testamentary capacity (see Matter of Schlaeger, 74 AD3d 405, 406 [1st Dept 2010]) and was free from undue influence or other restraint, and the instrument was duly executed (see id.; see also Matter of Halpern, 76 AD3d 429, 432 [1st Dept 2010]; Matter of Matthews, NYLJ, Apr. 10, 2018, at 22, col 3 [Sur Ct, NY County]). Objectants — who contended that: (1) the deposition testimony of the attorney-drafter who supervised the execution (but was not an attesting witness) was unworthy of belief because he had no independent recollection of the will execution ceremony and because earlier in the probate proceeding he had been mistaken as to which lawyer represented the petitioner, and (2) the instrument was not duly executed because one of the two attesting witnesses, decedent’s sister, did not have a sufficient command of the English language — failed to establish the existence of a material issue of fact that would require resolution at trial (see Matter of Eighth Jud. Dist. Asbestos Litig., 33 NY3d 488, 496 [2019]). Decedent’s sister, for whom English was not her first language, testified at her deposition, in English. Although she was unable to define “competent” or “sound mind,” her deposition testimony nevertheless was clear: Decedent had asked her to be a witness to the execution of his will, she signed the instrument at his request, and, at the time of the execution, decedent was “alert, talking, he knew everything…. He was the one who decided to do the paper.” Her deposition testimony left no doubt that, as between decedent and her, “there was some meeting of the minds upon the understanding that the instrument was the testator’s will; that it had been subscribed by him and that the attestation of the latter was desired to the will so subscribed” (Matter of Turell, 166 NY 330, 337 [1901]; see Matter of Nemes, 2017 NY Slip Op 32858[U] [Sur Ct, Nassau County]). Settle proposed probate decree. Dated: November 6, 2019
