In this contested probate proceeding, the nominated successor executor (one of decedent’s daughters) moves for summary judgment dismissing objections filed by another of decedent’s daughters, and for admission of the proffered will to probate. Objectant alleges lack of testamentary capacity, lack of due execution, fraud, undue influence and forgery. Objectant filed no opposition to the motion. Background Facts Decedent died on April 10, 2017. He was survived by three daughters. The proffered will (“will”) was executed on August 8, 2014, and divides decedent’s estate among six relatives and two charities. Each of the charities receives ten percent of the residuary. The six relatives, including the movant, receive the rest of the residuary in equal shares. Objectant and decedent’s other daughter are expressly disinherited. DISCUSSION A motion for summary judgment may be granted only if the movant makes 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” (Alvarez v. Prospect Hosp., 68 NY2d 320, 324 [1986]). If movant succeeds, the burden shifts to the opposing party to submit admissible proof that establishes there are material issues of fact that require a trial (id.). The affidavits and other papers should be viewed in the light most favorable to the party opposing the motion (Goldstein v. County of Monroe, 77 AD2d 232 [4th Dept 1980]). DUE EXECUTION The proponent of a will bears the burden of proving due execution by a preponderance of the evidence (Matter of Pirozzi, 238 AD2d 833, 834 [1997]). For a will to be valid, it must be in writing and executed in accordance with the following statutory requirements: (1) the testator must sign the will at the end; and in the presence of at least two attesting witnesses, or acknowledge his signature to, at least two attesting witnesses; (2) the testator must declare or make known to the witnesses that the instrument is his or her will; and 3) the two witnesses, within 30 days of each other must attest to the testator’s signature as affixed in their presence, and (4) at the request of the testator, the two witnesses must sign their names at the end of the will(EPTL §3-2.1[a]). There is a rebuttable presumption of due execution if an attorney supervised the execution (Matter of Moskoff, 41 AD3d 481, 482 [2007]). Furthermore, a presumption of regularity is created where a valid attestation clause and a self-proving affidavit constitute “prima facie evidence of the facts therein attested to by the witnesses” (Matter of James, 17 AD3d 366 [2d Dept 2005]). The claim of forgery is a variation of a claim of lack of due execution and is thus a ground for denying probate because forgery is tantamount to a testator’s failure to sign the will (EPTL 3-2.1 [a][1]). Here, the attestation clause states that decedent signed, sealed, published and declared the Will to be his last will and testament to the two witnesses in their presence and that the witnesses (at the request of the testator in his presence and in the presence of each other) subscribed their names as witnesses. The self-proving affidavit of the attesting witnesses, which was executed on the same day as the Will was signed by decedent, has been filed with the court. The witnesses’ affidavits state, inter alia, that the Will was signed by decedent at the end, that decedent declared the instrument to be his Last Will and Testament and that it was prepared in accordance with his instructions. Further, the will execution ceremony was supervised by an attorney, which gives rise to a presumption of due execution. The court finds that movant has submitted sufficient proof constituting prima facie evidence that the Will was duly executed in accordance with the statutory requirements. Objectant filed no opposition. Accordingly, on the issues of due execution and forgery, summary judgment is granted. TESTAMENTARY CAPACITY Proponent has the burden of proving, by a preponderance of the evidence, that decedent had testamentary capacity at the time he executed his will(Matter of Barney, 185 AD 782, 795 [1st Dep't 1919]). The court looks to whether or not the testator: (1) understood the nature and consequences of executing a will; (2) knew the nature and extent of his assets; and (3) knew those who would be considered the natural objects of his bounty [and his relations with them] (Matter of Kumstar, 66 NY2d 691, 692 [1985], rearg denied, 67 NY2d 647 [1986]). A self-proving affidavit creates a presumption of testamentary capacity (Matter of Leach, 3 AD3d 763 [3d Dept 2004]; Matter of Johnson, 6 AD3d 859 [3d Dept 2004]; see also 3 Warren’s Heaton on Surrogate’s Court Practice §42.06 [2020]). The presumption provides a basis upon which to establish a prima facie case for capacity (Matter of Bogen, NYLJ, Nov. 13, 2014 at 22, col.3 [Sur Ct, NY County 2014]). Here, the attorney-draftsman affirms that he first met decedent one month before the will was executed. During that time, decedent told him that he wanted a will and that he thereafter conversed with decedent to determine his wishes regarding his testamentary plans. Based on those conversations, he concluded that decedent “was lucid, attentive and could clearly express his wishes and desires concerning both his health and testamentary plan.” The attorney-draftsman also states that before decedent signed the Will, decedent confirmed that he had read the will and that it comported with his wishes. Moreover, the contemporaneous sworn affidavit of the two attesting witnesses (both licensed attorneys), which was annexed to the Will, constitutes prima facie evidence of the facts recited therein (Matter of Schlaeger, 74 AD3d 405, 407 [1st Dept 2010]), including the witnesses’ observation that decedent appeared to be of sound mind, memory, and understanding. The court therefore finds that movant has made out a prima facie case for testamentary capacity. Objectant filed no opposition. Accordingly, on the issue of testamentary capacity, summary judgment is granted. FRAUD AND UNDUE INFLUENCE Objectant has the burden of proving fraud and undue influence. The elements of a cause of action alleging fraud are (1) a false representation of a material existing fact, (2) knowledge of falsity, (3) intent to induce reliance, (4) justifiable reliance by the plaintiff, and (5) damages (Eurycleia Partners, LP v. Seward & Kissel, LLP, 12 NY3d 553, 559). Regarding the claim of undue influence, influence is considered undue if it equates to moral coercion that destroys a testator’s ability to act freely and independently, causing the testator to act contrary to her true desires because she is “unable to refuse or too weak to resist” (Children’s Aid Socy. of City of N.Y. v. Loveridge, 70 NY 387 [1877]). Objectant filed no opposition to the motion with respect to fraud or undue influence. Thus, summary judgment is granted. CONCLUSION The court finds that movant has met her prime facie burden as a matter of law and the court being satisfied with the validity of the will in accordance with SCPA 1408, therefore grants the motion to dismiss. Temporary letters of administration issued to objectant are hereby revoked. Settle probate decree. Dated: October 30, 2020
