How Does a Will Proponent Make a Prima Facie Case For Probate In New York?

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In Matter of Schmidt, a May 2021 opinion, the New York Supreme Court, Appellate Division, reviewed the basic prima facie burdens of a will proponent in a contested New York probate proceeding.

The Facts of Matter of Schmidt

John G. Schmidt executed his last will and testament on March 24, 2009.  He executed the will before two disinterested witnesses and under the supervision of the attorney who drafted it.  The will expressly disinherited his son, John Schmidt Jr., “having generously provided for him during my lifetime.”

The will was the third since 1992 in which the decedent declined to provide for his son.  After decedent’s death, his daughter Barbara commenced a proceeding to admit the 2009 will to probate.  Schmidt Jr. filed objections to probate.

Barbara moved for summary judgment dismissing the objections to probate of the will.  The Surrogate’s Court granted the motion for summary judgment and admitted the will to probate.

What Is the Summary Judgment Standard in a New York Contested Probate Proceeding?

In a New York contested probate proceeding, summary judgment is appropriate where a petitioner establishes a prima facie case for probate and the objectant fails to raise a triable issue of fact concerning the viability of the will (see Matter of Sabatelli, 161 AD3d 872, 873; Matter of Moskowitz, 116 AD3d 958).

The Will Proponent Has The Burden Of Proving Prima Facie Due Execution Of the Will

The New York Court summarized the will proponent’s initial prima facie burden of due execution of the will:

“The proponent of a will has the burden of proving that the propounded instrument was duly executed in conformance with statutory requirements” (Matter of Christie, 170 AD3d 718, 719; see EPTL 3-2.1[a]). “Where the will is drafted by an attorney and the drafting attorney supervises the will’s execution, there is a presumption of regularity that the will was properly executed in all respects” (Matter of Sabatelli, 161 AD3d at 873-874; see Matter of Farrell, 84 AD3d 1374, 1374). “Additionally, where the propounded will is accompanied by an attestation clause and a self-proving affidavit, a presumption of compliance with the statutory requirements arises” (Matter of Sabatelli, 161 AD3d at 874; see Matter of Mele, 113 AD3d 858, 860).

Here, the petitioner demonstrated her prima facie entitlement to judgment as a matter of law dismissing the objections alleging lack of due execution.  The will contained an executed attestation clause and was accompanied by a self-proving affidavit.

In addition, the attorney-drafter and the attesting witnesses were deposed and testified to the due execution of the will under New York law.  The notary, contrary to the objectant’s contention, was not disqualified by reason of his relationship to the successor executor-trustee named in the will or his relationship to the law firm nominated in the will to represent the executor in settling the decedent’s estate.

The objectant did not raise a triable issue of fact in opposition to the will proponent’s showing of due execution.

The Will Proponent Has the Initial Burden of Showing Testamentary Capacity

In New York, the proponent of the will has the initial burden of establishing prima facie that the decedent understood the nature and consequences of making the will, the nature and extent of his or her property, and the natural objects of his or her bounty, i.e., showing that the testator possessed testamentary capacity.

Here, the self-proving affidavit, the transcript of the deposition testimony of the attorney-drafter, the transcripts of the deposition testimony of the attesting witnesses, and the affidavit of the petitioner, among other things, constituted prima facie evidence of testamentary capacity.  The objectant failed to raise a triable issue of fact in opposition.

The Court determined that the New York Surrogate’s Court properly granted the daughter’s motion for summary judgment dismissing the objections to probate and admitting the will to probate.

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