Pending before the Court is a petition filed by George Grazaidei ^[FN1] on August 10, 2021 which seeks to vacate the June 17, 2021 probate decree (the "Decree") which admitted the Last Will and Testament of Shirley H. Swing dated April 30, 2021 (the "2021 Will") to probate and issued Letters Testamentary to her granddaughter Currey Nelson. The Court held a two-day hearing on July 1 and 2, 2024 wherein petitioners appeared in support of the petition and Currey Nelson appeared in opposition.

The issues to be determined at the hearing were whether the Decree should be vacated and the 2021 Will declared invalid because (1) it was not duly executed; (2) the decedent lacked testamentary capacity at the time she signed it.

Shirley H. Swing ("Shirley") died on May 2, 2021. On June 7, 2021, Shirley's granddaughter, Currey Nelson ("Currey"), filed a petition to probate the 2021 Will and sought appointment as executor. Along with her petition for probate, Currey submitted affidavits of two attesting witnesses to the 2021 Will: Carol Zuchowski ("Carol") and Diane E. Mariano ("Diane"). Based on documentation before it at that time, the Court granted the petition and [*2]issued a Decree on June 17, 2021, admitting the 2021 Will to probate.

Shortly after the Court issued the Decree, it was challenged by a proponent of a purported prior Last Will and Testament of Shirley dated May 21, 2019 ("the 2019 Will"). Specifically, on July 9, 2021, MaryAnn Cahill ("MaryAnn") the nominated executor and a legatee in the 2019 Will, petitioned to vacate the Decree. Her petition was dismissed on August 3, 2021 for lack of standing.^[FN2] As a result, on August 10, 2021, George Grazaidei ("George"), also a legatee under the 2019 Will, filed the instant petition to vacate the Decree. Carol, who, as previously noted, was one of the attesting witnesses to the 2021 Will, provided an affidavit, sworn to by her on August 4, 2021 in support of George's petition to vacate. In this affidavit, Carol recited a series of allegations which conflicted with the assertions she made in her affidavit of attesting witness signed on June 10, 2021, most notably, that she did not witness Shirley sign the 2021 Will. The Court having relied, in part, upon Carol's attesting witness affidavit in issuing the Decree, subpoenaed Carol, and the other attesting witness Diane, for an in-court examination.

Pursuant to judicial subpoena, Carol appeared on October 15, 2021 for an examination under oath, and was questioned by the Court, Gustave J. DeTraglia, Jr., Esq. on behalf of George, and Cecelia R.S. Cannon, Esq. on behalf of Currey. At the conclusion of Carol's examination, the Court observed that Carol's testimony raised questions about the execution of the 2021 Will and therefore limited the letters previously issued to Currey so as to prevent distribution or disposing of estate property. Diane appeared on November 12, 2021, for an examination under oath by the Court, Mr. DeTraglia and Ms. Cannon.

On October 11, 2022, George filed a petition to probate the 2019 Will.^[FN3] Shortly thereafter, on October 13, 2022, George filed a motion for summary judgment in the vacature proceeding, contending that the undisputed facts established the 2021 Will was not duly executed and that Shirley lacked testamentary capacity. Currey opposed the motion citing to material issues of fact that remained. The Court denied George's motion in a Decision and Order dated March 31, 2023.

On October 17, 2023, George filed a motion to renew his summary judgment motion, citing to new evidence not previously submitted for the Court's consideration. George requested the Court consider Currey's deposition testimony that corroborated Carol's testimony that Carol did not see Shirley sign the 2021 Will. The Court denied the motion to renew in a Decision and Order dated January 9, 2024 finding continued questions of fact and that a trial was necessary because the facts of Will execution and the credibility of witnesses needed to be explored.

In the January 9, 2024 Order the Court observed that throughout the course of the [*3]proceedings there were repeated references to other potentially interested parties who were named beneficiaries under the purported 2019 Will. The Court therefore directed the interested individuals to be cited and offered the opportunity to join in George's vacature proceeding, in the interest of judicial economy and to avoid subsequent vacature petitions. MaryAnn and her husband, Brian Legg ("Brian") elected to join in George's petition.

The Court scheduled a bench trial for July 1st — July 2nd 2024. Over the course of two days the Court admitted multiple exhibits into evidence and heard testimony from physician D. Christopher Clark, M.D.; handwriting experts Eileen Page and Laura Mancebo; hospice nurses Cheryl Pula and Karen Puckey; and grandchildren Currey Nelson and Keagan Nelson.

Shirley and her former husband, Robert D. Swing,^[FN4] had three daughters: Susan L. Parry, Nancy M. Acee, and Carla M. Nelson. Around 2006, Shirley became estranged from Susan and Nancy. Carla passed away in 2007, leaving two young children: Currey and Keagan Nelson ("Keagan"). After Carla's death, Currey and Keagan became Shirley's closest family members. Both grandchildren lived just down the street and interacted with Shirley frequently, often on a daily or weekly basis. When they were younger, Shirley would pick them up from preschool, and as they grew older, she would walk her dog to meet them at the bus stop and care for them after school. Currey spent her entire life living close to Shirley and often stayed overnight to help care for her grandmother. Keagan similarly lived either nearby or with Shirley for his entire life.

For many years Shirley owned ^[FN5] a mobile home park in Clark Mills, New York, where she built lasting friendships with neighbors. Shirley lived next door to Carol and a few houses away from both George and Diane. Carol testified that she knew Shirley for 21 years and considered their relationship as close as family. Carol described Shirley as being "like a mother" to her, recalling how Shirley and her husband had given Carol and her husband opportunities when others would not. Carol also noted that other neighbors, such as George, shared similarly close relationships with Shirley and often helped her as she would help them.

Diane, another neighbor and friend, knew Shirley for approximately eight years. Recently retired, Diane provided home care to Shirley during the final year of Shirley's life. When Shirley could no longer afford to pay Diane, Diane continued to assist her, staying with Shirley three to four days and nights each week.

Currey and Keagan were close with Shirley for their entire lives and particularly so in Shirley's last years of life. Both grandchildren, along with Carol and Diane, provided around the clock care to Shirley in her final year of her life.

As previously noted, Shirley stopped communicating with her daughters Nancy and Susan in 2006. Consistent with this estrangement, Shirley went to an attorney and executed a Last Will and Testament on July 13, 2006 which left her entire estate to Carla. Sadly, Carla passed away in 2007. The year after Carla passed away, i.e. on June 1, 2008 Shirley created a Pour Over Will and Revocable Trust which, aside from a few specific bequests, left all her assets to Currey and Keagan.

Shirley was born in 1927 and as she became advanced in age, she experienced significant health challenges. Records reflect around 2018 and 2019 Shirley began to require ongoing home health care assistance. Shirley was hospitalized in January of 2019 and was transferred for rehabilitation at the Presbyterian Nursing Home. Records indicate Shirley was discharged in February of 2019 to her home.

During this period, Shirley faced limitations that necessitated daily support for basic activities and medical care. Complicating matters, Shirley's closest family members, her grandchildren Currey and Keagan, attended college and trade school and frequently traveled for work and personal obligations, limiting their ability to consistently provide direct care. Consequently, Shirley relied substantially upon professional home health aides to assist with daily living tasks and medical support. It was around this time that MaryAnn and Brian were involved in Shirley's life and MaryAnn coordinated home health care for Shirley.

On May 21, 2019 in the office of attorney Paul Skavina, Esq., Shirley purportedly executed a Last Will and Testament that left substantial parts of her estate to MaryAnn and Brian. Shirley also included specific bequests to George, Carol and other neighbors in this purported 2019 Will. While the 2019 Will did not specifically exclude Currey and Keagan, their interest thereunder was substantially less than under Shirley's prior estate plans. Prior thereto, i.e. on March 1, 2019, Shirley had appointed MaryAnn to be her agent under a power of attorney.^[FN6]

From late 2019- 2021, although experiencing a decline in her physical health, Shirley lived at home with assistance from Keagan, Currey, Carol, Diane and other friends and caregivers. In March of 2021, Shirley asked her friend and caretaker, Diane, to help her prepare a new Will because she was concerned about the cost of hiring an attorney. Shirley had expressed financial concerns to her doctor, specifically indicating worries about running out of money. Diane testified Shirley was determined to change her Will to leave her estate to her grandchildren.

Over the following weeks, Diane met multiple times with Shirley to discuss and document Shirley's intentions for her Will. Shirley clearly stated she wished her properties to be left to her grandchildren and asked Diane to obtain the real property deeds to accurately identify them in the Will. Shirley also explicitly requested that Diane and her neighbor, Carol, act as witnesses to the execution of the Will.

On April 30, 2021, Diane met Shirley at her home to finalize the 2021 Will. Diane reviewed the terms with Shirley, who then read and signed the document in the presence of Diane and Currey. Diane signed as an attesting witness upon Shirley's request. Currey observed her grandmother signing the 2021 Will and heard her ask Diane to sign as a witness, but refrained from signing herself as a witness, as she was a named beneficiary.

Carol, intended as the second witness, was unable to be present at Shirley's house on April 30, 2021 due to recent surgery, however she knew Shirley was working on writing the 2021 Will with Diane's assistance, had discussed Shirley's plans with Shirley and was anticipating signing the 2021 Will as a witness. Thus, after Shirley signed the 2021 Will on April 30, 2021, with Diane and Currey present, she instructed Currey to bring the 2021 Will to Carol to obtain her signature as they had previously discussed. Currey complied, taking the document directly to Carol the next day, who was aware of Shirley's intentions and subsequently signed as the second attesting witness from her home.

Both Diane and Carol confirmed in their testimony that Shirley clearly expressed her intent to leave her entire estate to her grandchildren, they supported and encouraged her to do so and agreed to sign her 2021 Will as witnesses. Shirley passed away on May 2, 2021, three days after executing her 2021 Will.

For a vacatur petition to succeed, George must first prove that he has: (1) standing; (2) a substantial basis for contesting the 2021 Will; and (3) a reasonable probability of success on the [*5]merits. (See Matter of Nappo, NYLJ, June 4, 2010 at p.42, col. 4 [Sur Ct, NY County 2010] citing Am. Comm. for Weizmann Inst. of Sci. v Dunn, 10 NY3d 82 [2008]). If George satisfies this initial burden, Currey, as proponent of the 2021 Will, must demonstrate the 2021 Will was duly executed in conformance with or in substantial compliance with the statutory requirements (see EPTL§ 3—2.1[a]; Matter of Collins, 60 NY2d 466 [1983]). Currey will also have the burden of proving that the testator possessed testamentary capacity (Matter of Kumstar, 66 NY2d 691 [1985]; Matter of Est. of Burrows, 203 AD3d 1699 [4th Dept 2022]).

The Court has previously distinguished this case from cases summarily denying probate for lack of due execution because here, the 2021 Will was already admitted to probate based on ample evidence of due execution at that time. A petition seeking to vacate a decree of probate must "demonstrate a substantial basis for its contest and a reasonable probability of success through competent evidence that would have probably altered the outcome of the original probate proceeding" (Matter of American Comm. for Weizmann Inst. of Science v. Dunn, at 96).

As a threshold issue, the Court finds that George has met his burden. As indicated, George has standing because he is a legatee under the purported 2019 Will. George has also alleged a substantial basis to challenge to the validity of the 2021 Will by virtue of the stark contradiction between Carol's attesting witness affidavit and her subsequent testimony that she never saw Shirley sign the 2021 Will, which was corroborated by Currey who verified that she brought the 2021 Will from Shirley's house to Carol's house for her to sign. George's counsel correctly points out that courts have strictly enforced the requirements of EPTL § 3-2.1.

However, as noted, the Court has denied George summary judgment on two occasions because Currey presented evidence that would support due execution of the 2021 Will in opposition to George's motions. Prior to a full trial on the issues, the record neither established sufficient "other facts" to support the validity of the 2021 Will as a matter of law, nor did it compel the converse conclusion that 2021 Will must fail. The Court found that the credibility of witnesses must be weighed, and permissible inferences considered at a full trial (citing to In re Pacifico, 2013 WL 3463665 [Sur Ct, New York County July 09, 2013]).

As such, Currey, as proponent of the 2021 Will has the burden to demonstrate the 2021 Will was duly executed in conformance with or in substantial compliance with the statutory requirements (see EPTL§ 3—2.1[a]; Matter of Collins, 60 NY2d 466 [1983]). Given what we know about Carol's SCPA 1404 testimony, "The applicable standard at trial is provided by subdivision (3) of SCPA 1405, thus requiring proponent to produce "other facts" in tending to show due execution" (In re Estate of Hutchinson, 13 AD3d 704, 707 [3rd Dept 2004]). Currey also has the burden of proving that Shirley possessed testamentary capacity (Matter of Kumstar, 66 NY2d 691 [1985]; Matter of Est. of Burrows, 203 AD3d 1699 [4th Dept 2022]).

After much deliberation, the Court's decision is as follows.

The formal requirements for the execution and attestation of Wills are set forth in (EPTL 3-2.1 [a]) which provides, in pertinent part, that the Will must be in writing, signed at the end thereof by the testator, the signature must be affixed in the presence of each of the attesting witnesses or acknowledged by the testator to each such witness to have been affixed by her, she must declare to each attesting witness that the instrument is her Will, there shall be two witnesses whose attestations shall be within a 30-day period, and the witnesses must sign at the [*6]testator's request.

The Court of Appeals has indicated that the statute is to be strictly construed to prevent fraud and uncertainty in the disposition of estates (see Matter of Andrews' Will, 162 NY 1 [1900]; Matter of Booth's Estate, 127 NY 109 [1891]; Matter of O'Neil's Will, 91 NY 516 [1883]). However, more recent cases have held that the beneficial purpose of the statute should not be subverted by an overly strict interpretation (NY PJI 7:45 citing Matter of Kobrinsky's Will, 51 Misc 2d 222 [Sur Ct, Kings County 1966]; Matter of Dupin's Will, 36 Misc 2d 309 [Sur Ct, Nassau County 1962]). Courts have established that substantial compliance with the formalities required for due execution of a Will is sufficient (see In re Estate of Frank, 249 AD3d 893 [4th Dept 1998]).

George claims that the signing of the 2021 Will failed to comply with the formalities of EPTL § 3-2.1 because, after initially attesting to the validity of the 2021 Will, in her SCPA 1404 examination Carol testified she was not present at the time that Shirley signed her 2021 Will.^[FN7] Currey confirmed that Carol was not present when Shirley signed the 2021 Will.

George reasons that without Carol and Shirley together in the same room Shirley could not sign in the presence of Carol or, alternatively, acknowledge her signature to Carol after she signed (EPTL 3-2.1[2]). Presumably, George also concludes that because Carol and Shirley were not physically together, Shirley was not able to request Carol sign as a witness or sufficiently declare the instrument to be her Will (EPTL 3-2.1[3]). As such, George argues two essential elements of due execution are absent here:

1. Shirley's acknowledgement of her signature to Carol (EPTL 3-2.1[2] "acknowledgement"); and

2. Shirley's publication of the instrument to be her Will to Carol (EPTL 3-2.1[3] "publication").

Currey's response to these apparent deficiencies is clear. First, there is no question that Shirley asked Carol to sign as a witness. Second, Carol knew Shirley was finalizing the Will and was anticipating signing as a witness. Third, after Shirley signed her Will she asked Currey to bring it to Carol to sign as the second witness. In doing so as Shirley's agent, Currey both acknowledged to Carol that Shirley had signed the Will and confirmed that Carol knew it was Shirley's Will. In short, by delivering the Will to Carol as Shirley's agent Currey was communicating this is the Will (publication) and this is the signature (acknowledgement).

George argues the Court should reject this account of due execution as non-compliant. In resolving this factually and legally complex issue, the Court has carefully reviewed the following questions: Does a testator have to be physically present with a witness to have a valid execution ceremony? Can a testator communicate through an agent?

George believes Shirley's failure to directly and physically acknowledge her signature [*7]and declare the instrument to be her Will to Carol are fatal defects. The Court disagrees. While acknowledgment and publication are each necessary, Courts have validated differences in both the timing of the acknowledgment and publication and the manner that each are communicated. "The testamentary occasion is not to be bounded by time alone, or to be broken by a change of the place where the transaction commenced; for the persons concerned may well maintain a continuous relation to the ceremony of Will making and to each other's acts in that regard, despite the lapse of time or a change in their own location" (Matter of Baldwin, 67 Misc. 329 [Sur Ct, Kings County, 1910], affd. 142 A.D. 904 [2nd Dept. 1910]).

In (In re Martin's Estate, 270 AD 875 [4th Dept 1946]), the Fourth Department reversed the decision of the Surrogate and admitted a Will to probate where one witness did not sign in the presence of the testator and subscribed her name a day or two after the testator. The Court also found sufficient publication based on witness testimony that the testator communicated with the witness over the phone. "We do not consider it to be a sine qua non to the publication of, or the acknowledgement of a subscription to, the Will that the instrument with the signature visible be physically present at the time" (In re Martin's Estate, 270 AD 875 [4th Dept 1946] citing Matter of Baldwin, 67 Misc. 329, affd. 142 App. Div. 904; and Matter of Meier, 222 App. Div. 686, affd. 249 NY 549.) A slight variance from the usual formality in the execution of a Will, unattended by any other circumstances throwing suspicion on a Will, does not render a Will invalid (see In re Thompson's Will, 189 Misc. 873 [Sur Ct, Monroe County 1947]). "What is the same time and the same transaction is a subject of judicial determination, in each particular case, depending upon the facts, and incapable of being governed by any general rule" (Matter of Baldwin, supra). Thus, the fact that Carol signed as a witness to the 2021 Will but not in the presence of Shirley, and Shirley did not acknowledge her signature in the presence of Carol does not necessarily mean the 2021 Will is per se invalid.

The Court is cognizant of the cautionary adage "hard cases make bad law." Exceptionally difficult cases can lead courts to establish legal precedents that may be problematic when applied broadly. The Court wants to avoid such a result in this case and has grappled with the concept of delegating any aspect of a Will execution ceremony to an agent.

However, upon careful review, the law clearly recognizes the role of third parties acting as agents to complete aspects of a proper execution ceremony. For example, the role of agents is well established with regard to the publication requirement. "[S]ubstantial compliance will be sufficient and no particular form of words is required, or is necessary, to effect publication" (see, Matter of Pilon, 9 AD3d 771, 772 [3rd Dept 2004]). There need only be some "meeting of the minds" between the testator and the attesting witnesses that the instrument they were being asked to sign as witnesses was testamentary in character (see, Matter of Pirozzi, 238 AD2d 833 [3rd Dept 1997]; Matter of Roberts, 215 AD2d 666 [2nd Dept 1995]) and a request to have the witnesses sign the Will can be inferred from the circumstances surrounding the entire execution (see Matter of Seelig, 302 AD2d 721 [3rd Dept 2003]; Matter of Buckten, 178 AD2d 981 [4th Dept 1991], lv denied 80 NY2d 752 [1992]; Matter of Lynch, 2011 NY Misc. LEXIS 5909, 2011 NY Slip Op 33235[U][Sur Ct, Nassau County 2011]; Matter of Farinon, 2011 NY Misc. LEXIS 5907, 2011 NY Slip Op 33233[U][Sur Ct, Nassau County 2011]).

The use of an agent or proxy in connection with a Will execution ceremony is not, in [*8]itself, a fatal defect under New York law — it is a recognized and accepted practice, provided the statutory purpose is fulfilled: that the Will is executed with the testator's knowledge, intent, and request (whether express or implied) that those individuals serve as witnesses. The Court is led to this conclusion based on the specific facts and circumstances in this case. Given the clear evidence of substantial compliance, the Court is unwilling to impose an overly strict interpretation that subverts the beneficial purpose of the statute (NY PJI 7:45 citing Matter of Kobrinsky's Will, 51 Misc 2d 222 [Sur Ct, Kings County 1966]).

The Court finds that Currey was acting as Shirley's agent and as such effectively completed the requisite "acknowledgement" and "publication" elements of due execution. When Currey delivered the 2021 Will to Carol, Currey clearly communicated Shirley's message to Carol that the instrument is her Will and she had affixed her signature to it.^[FN8] The Court fully credits Currey's testimony that she delivered the 2021 Will to Carol for her signature at Shirley's direction and with Shirley's full authorization.

The Court finds convincing evidence that Currey observed and heard Shirley interact with Carol in-person and over the phone sufficient for Currey to conclude that Shirley had asked Carol to sign the 2021 Will as a witness. Indeed, in her testimony Carol herself verified Currey's understanding and confirmed Shirley's request to her. Carol testified she took the 2021 Will and signed it because she was expecting it. Thus, while Currey's counsel argues Currey was acting as Shirley's agent and possessed apparent authority when she brought the 2021 Will to Carol, the Court finds Currey had express actual authority and Carol knew that authority existed when she signed.

As such, the Court concludes that Carol signed as a witness at Shirley's behest and fully believing that the 2021 Will was Shirley's Will satisfying the "publication" element. The Court further concludes that Carol signed as a witness when Currey delivered the 2021 Will knowing that Shirley herself had signed it satisfying the "acknowledgment" element. Carol freely and knowingly signed the 2021 Will and then the affidavit of attesting witness that confirmed her knowledge of and participation in the execution ceremony. As noted, Carol only vacillated after she was approached with news she was a beneficiary under the purported prior 2019 Will and questioned by Mr. DeTraglia on behalf of other legatees thereunder i.e. George, Brian and MaryAnn.

The Court has relied on Currey's testimony regarding conversations with Shirley. In the post-trial briefs both counsel argue the applicability and import of CPLR 4519 "dead person's statute." Currey argues that George opened the door and failed to raise objections, and George argues the objections to such testimony were properly made. There is little doubt that Currey's testimony regarding what Shirley said would ordinarily be precluded by virtue of CPLR 4519. However, at trial Mr. DeTraglia's objections were sporadic at best and did not operate to [*9]disqualify Currey's testimony regarding crucial communications with Shirley.^[FN9] In fact, Mr. DeTraglia read Currey's deposition transcript into the record. Also, there were no specific objections made when Currey's counsel read additional excerpts of Currey's deposition into the record. "Failure to assert an objection to a party's testimony as to transactions with deceased constituted a waiver of objection" (In re McDonnell's Will, 135 NYS2d 455 [1954]). It is insufficient to simply state an objection to all of it or to any communications, specific objections must be made to specific questions and answers at trial.^[FN10]

Significantly, there was no objection to Currey's direct testimony that Shirley asked her to bring the 2021 Will to Carol to sign as a witness and that Carol was expecting it. As such, the Court credits Currey's testimony that she was asked by her grandmother to bring the 2021 Will to Carol to obtain Carol's signature, and in doing so, was acting as Shirley's agent.

Here, the surrounding circumstances were sufficient to establish to both Carol and Diane that the instrument they signed as witnesses was Shirley's Will and that Shirley signed it. As indicated, the testimony makes clear that Shirley asked each to sign as witnesses. The Court finds there was a clear "meeting of the minds" between the testator and the attesting witnesses that the instrument they were being asked to sign as witnesses was testamentary in character and that Shirley affixed her signature to it. Shirley's request that Carol and Diane sign is clear from the circumstances, and the testimony demonstrates substantial compliance with the minimum statutory prescription for execution of the testamentary instruments. If the testator authorizes or agrees to the witnessing, and this is clear to the witnesses, the exact words used are not critical. (see Matter of Mullenhoff, 278 AD 963 [2nd Dept 1951] where the Appellate Division reversed a Surrogate's decision that had denied probate, emphasizing that an express request by the testator is not required). "Such a request need not be expressed but may be implied from the conduct of the parties" (Matter of Buckten, 178 AD2d 981 [4th Dept 1991]. In this case, Currey's role in delivering the 2021 Will to Carol was requested and specifically authorized by Shirley. (cf Matter of Vickery, 167 AD2d 828 [4th Dep 1990] where the court ultimately refused to validate the Will because there was no proof that the son was acting with the testator's authorization).

As noted, Carol recanted her sworn statements in her affidavit of attesting witness and subsequently questioned the authenticity of Shirley's signature and Shirley's mental acuity. However, a Will can be admitted to probate even where both attesting witnesses testify against the instrument, as long as there is sufficient other evidence to establish due execution (see e.g. [*10]Matter of Katz, 277 NY 470 [1938]; Matter of Cottrell, 95 NY 329 [1884]; Trustees of The Theological Seminar of Auburn v Calhoun, 25 NY 422 [1862]; see also Matter of Collins, 60 NY2d 466 [1983]; Matter of Price, 254 AD 477 [1st Dept 1938], aff'd 279 NY 700 [1939]). Here, only one witness, Carol, testified against the instrument. But she did so after having previously signed both the instrument's attestation clause and a self-proving affidavit. Thus, it begs the question, given Carol's testimony, what other evidence could establish the validity of the 2021 Will?

When one attesting witness testifies against due execution courts frequently rely on other evidentiary factors to determine whether the Will should nonetheless be admitted to probate. "Determining what constitutes sufficient 'other facts' is sui generis, and a wide range of proof may be considered" (In re Estate of Hutchinson, at 707 citing 2-41 Warren's Heaton, Surrogates' Courts § 41.10 [3] [a] [2004]).

In the course of its analysis, the Court has identified a litany of evidentiary factors relevant to prove the validity of a Will where an attesting witness or witnesses testify against it.

First, courts have considered the testimony of other witness(es). If one attesting witness denies due execution, courts closely evaluate testimony of the other attesting witness (see e.g. Matter of Collins, 60 NY2d 466 [1983] finding that even one credible witness who affirms proper execution can satisfy the court that statutory formalities were met despite contrary testimony from another witness.) Second, courts review the credibility and reliability of the hostile witness. Courts also have examined the motivation, credibility, memory, and bias of the witness who challenges execution (see e.g. Matter of Clapper, 279 AD2d 730 [3rd Dept. 2001] where a witness's testimony was discounted as unreliable, contradictory and influenced by personal interest).

Another evidentiary factor is a witness's subsequent statements or actions. Courts consider if the witness made prior written statements or affidavits confirming proper execution or acted in ways consistent with valid witnessing (e.g., signed self-proving affidavits) (see e.g. Matter of Leach, 3 AD3d 763 [3rd Dept. 2004] where an attesting witness's earlier affidavit stating due execution was persuasive even though the witness later testified otherwise).

Courts review attestation clauses and self-proving affidavits as other evidence relevant to due execution. Courts give weight to a clear and complete attestation clause (see e.g. Matter of Selvaggio, 146 AD3d 891 [ 2nd Dept. 2017] where the court found a well-drafted attestation clause can independently corroborate due execution, even if witness testimony is unclear or contradictory). Wills accompanied by a self-proving affidavit provide additional evidence of proper execution (see e.g. Matter of Moskoff, 41 AD3d 481 [2nd Dept. 2007] observing that a self-proving affidavit is strong evidence that execution formalities were observed).

A highly significant factor considered in challenges to due execution is the testimony of non-witness participants. Testimony from non-attesting observers at the execution ceremony (e.g., family members, caregivers, interpreters, paralegals, notaries) can confirm the conditions of the signing (see e.g. Matter of Kollmann, 130 Misc 42 [Sur Ct, New York County 1927] admitting a Will to probate under testimony of testator's physician and of a principal beneficiary notwithstanding contradictory testimony of two subscribing witnesses); and (Matter of Sook Li, 72 Misc 3d 988 [Sur Ct, Queens County 2021] relying on testimony from other persons present at execution to confirm circumstances of signing, publication, and request).

Courts consider the physical layout and observable behavior at the signing to infer compliance (see e.g. Matter of Kumstar, 66 NY2d 691 [1985] where the court considered the [*11]testator's clear intent, proven circumstances of execution, and credible testimony over contradictory statements from one witness). Finally, Courts look to consistency with prior Wills and estate plans. Courts assess whether the challenged Will aligns with the decedent's longstanding testamentary plan or expressed intentions (see e.g. Matter of Frank, 249 AD2d 893 [4th Dept 1998] holding that Courts favor admitting Wills that reflect continuity of intent).

Read together, courts can, and often will, admit a Will to probate if there is corroborating evidence of statutory compliance from other witnesses and the witness who testifies against the will lacks credibility or appears biased. In this case, the Court has thoroughly reviewed all other evidentiary factors to determine that Currey has met her burden to demonstrate the 2021 Will was duly executed in substantial compliance with the statutory requirements.

The Court credits Diane's testimony regarding the execution of the 2021 Will. Diane credibly testified that around March of 2021, Shirley asked Diane to help draft a new Will. Diane encouraged her to do so and over several weeks, Diane assisted Shirley in documenting her wishes, including identifying properties to specifically include in the 2021 Will. Diane testified (consistent with her attesting witness affidavit) that on April 30, 2021 Shirley signed the 2021 Will at her home in the presence of Diane and Currey. Diane, a disinterested witness throughout, observed Shirley to be alert and knowingly signed at the end of the instrument in Diane's presence and requested Diane to sign as her witness (see Matter of Collins, 60 NY2d 466 [1983] one credible witness who affirms proper execution can satisfy the court that statutory formalities were met despite contrary testimony from another witness.)

On the contrary, after examining Carol's motivation and observing her equivocation, the Court finds Carol's testimony to be incredible. Carol knowingly signed the 2021 Will as a witness aware of Shirley's intentions and having discussed the 2021 Will with Shirley beforehand, knowing Shirley had asked her to sign as a witness. Carol then knowingly signed the attesting witness affidavit. Having relied upon her sworn statements, the Court admitted the 2021 Will to probate.

However, shortly after Shirley died Brian approached Carol and advised her that she was a legatee under the purported 2019 Will. Brian encouraged Carol to talk with his attorney Mr. DeTraglia. After speaking with Brian and Mr. DeTraglia Carol signed the affidavit (handwritten by Mr. DeTraglia) on August 4, 2021 retracting her prior sworn statements and questioning the authenticity of Shirley's signature and Shirley's mental state. (see Matter of Clapper, 279 AD2d 730 [3rd Dept. 2001] where a witness's testimony was discounted as unreliable, contradictory and influenced by personal interest). When faced with contradictory or equivocal evidence, courts consider if the witness made prior written statements or affidavits confirming proper execution or acted in ways consistent with valid witnessing (see e.g. Matter of Leach, 3 AD3d 763 [3rd Dept. 2004] where an attesting witness's earlier affidavit stating due execution was persuasive even though the witness later testified otherwise).

The Court fully credits Currey's testimony that she saw Shirley affix her signature to the [*12]2021 Will and asked Diane to sign as a witness. Currey witnessed the entire execution ceremony but did not sign as a witness believing she was ineligible as a beneficiary. Nevertheless, the Court may consider her testimony in its analysis regarding whether there was substantial compliance. Testimony from non-attesting observers at the execution ceremony can confirm the conditions of the signing (see e.g. Matter of Kollmann, 130 Misc 42 [Sur Ct, New York County 1927] admitting a Will to probate under testimony of testator's physician and of the principal beneficiary notwithstanding contradictory testimony of two subscribing witnesses). As previously noted, the Court also credits Currey's testimony with respect to her role as Shirley's agent in securing Carol's signature as the second witness to the 2021 Will.

The 2021 Will is consistent with Shirley's longstanding estate planning. The evidence at trial clearly established that Shirley executed a Last Will and Testament on July 13, 2006 which left her entire estate to Currey and Keagan's mother Carla. After Carla passed away, Shirley created a Pour Over Will and Revocable Trust which, aside from a few specific bequests, left all her assets to Currey and Keagan. Diane and Carol clearly testified Shirley was determined to write a Will that left her estate to her grandchildren. Indeed, the challenged 2021 Will aligns with Shirley's longstanding testamentary plan and expressed intentions (see e.g. Matter of Frank, supra observing that courts favor admitting Wills that reflect continuity of intent).

In analyzing the arguments in this case, the Court takes issue with George's efforts to persuade the Court that Shirley did not sign the 2021 Will. Without evidence, George has alleged forgery. George's argument strikes the Court as particularly speculative, and the testimony of Eileen Page does nothing to sway the Court to conclude Shirley's signature was forged. In particular because Carol testified she knew Shirley was preparing a Will and discussed it with her over time, and especially where Diane, a disinterested witness unequivocally testified she watched Shirley sign the 2021 Will. Currey, although interested, credibly testified she witnessed Shirley affix her signature.^[FN11]

After careful review of the evidence presented, the Court concludes that Shirley's signature on the 2021 Will is authentic. This finding is supported primarily by the credible testimony of Diane, an attesting witness, and Shirley's granddaughter Currey, both of whom convincingly testified to witnessing Shirley personally signing the document. Additionally, the Court credits the testimony of forensic handwriting expert Laura Mancebo who provided an analysis based on a comprehensive evaluation of numerous writing samples and current datapoints, clearly indicating consistency and authenticity in Shirley's signature. The Court found Ms. Mancebo's testimony comparing Shirley's signature from April 27, 2021 with her signature on the April 30, 2021 Will to be particularly compelling.

In contrast, Ms. Page, whose conclusions rested upon fewer samples and more remote [*13]data, failed to present equally persuasive evidence.^[FN12] Notably, Ms. Page was never presented with the compelling evidence that a disinterested witness observed Shirley sign the 2021 Will. The Court believes an expert reviewing a document for forgery would need to have this critical information before concluding a signature was forged. Thus, the balance of credible evidence convincingly supports the authenticity of Shirley's signature.

In light of the Court's extensive review of the evidence and applicable legal standards, the Court finds that Currey has met her burden to demonstrate the 2021 Will was duly executed in substantial compliance with the statutory requirements (see EPTL§ 3—2.1[a]; Matter of Collins, 60 NY2d 466 [1983]). Notwithstanding Carol testifying against due execution, the Court finds there is an abundance of "other facts" that shows due execution.

Having established that the 2021 Will was duly executed, the Court now turns to George's challenge to Shirley's testamentary capacity. As noted, as a proponent of the Will Currey also has the burden of proving that Shirley possessed testamentary capacity (Matter of Kumstar, 66 NY2d 691 [1985]; Matter of Est. of Burrows, 203 AD3d 1699 [4th Dept 2022]).

Testamentary capacity is comprised of three parts: (1) whether the testator understood the nature and consequences of executing a Will; (2) whether the testator knew the nature and extent of the property being disposed of; and (3) whether the testator knew the natural objects of her bounty and her relations with them. (See Matter of Slade, 106 AD2d 914, 915 [4th Dept 1984]). The Court finds the evidence presented at trial portrays Shirley on April 30, 2021 as a person who had testamentary capacity.

A testator "need not have a perfect mind or memory" to make a Will (Matter of Horton, 26 Misc 2d 843, 847 [Sur Ct, Suffolk County, aff'd 13 AD2d 506 [2d Dept 1961]. Indeed, it is well settled that "old age, physical weakness and senile dementia are not necessarily inconsistent with testamentary capacity as long as the [testator] was acting rationally and intelligently at the time the [Will] was prepared and executed" (Matter of Hedges, 100 AD2d 586, 588 [2d Dept 1984]; see also Matter of Fiumara, 47 NY2d 845 [1979]; Matter of Friedman, 26 AD3d 723 [3d Dept 2006]). Proof of competency for purposes of executing a Will entails only a demonstration that the person understood the nature and extent of his property, the natural objects of his bounty and the provisions of the instrument (Matter of Kumstar, 66 NY2d 691 [1995]).

Credible testimony provided by Diane, granddaughter Currey, grandson Keagan, and two independent hospice nurses, Cheryl Pula and Karen Puckey, affirmatively supports Shirley's capacity. Each witness testified that, on or around the date the 2021 Will was signed, Shirley, although physically frail, was mentally alert, conversational, and fully oriented. The witnesses unanimously agreed she recognized family members, understood the nature of her actions, and was capable of clearly expressing her intentions and needs. Nurse Karen Puckey testified Shirley appropriately asked for medication for pain and answered all questions appropriately on April 28, 2021. Nurse Cheryl Pula reflected on her contemporaneous notes that Shirley was noted to [*14]be "cognitively sound" and had her faculties.^[FN13] In fact, hospice records introduced at trial provide contemporaneous evidence that Shirley was alert and advocating for her own wants and needs.

George relies almost exclusively on Dr. Clark's testimony to argue Shirley lacked testamentary capacity.^[FN14] Dr. Clark opined that Shirley would not have been competent to execute the Will on April 30, 2021. However, upon careful consideration, this Court does not find Dr. Clark's testimony persuasive. Significantly, Dr. Clark acknowledged he had last examined Shirley- by phone- approximately two months before her death (on March 8, 2021), thus lacking firsthand knowledge of her mental state at the time she executed the 2021 Will - which is the key inquiry (see Matter of Williams, 13 AD3d 954 [3d Dept 2004]). Neither his testimony nor the medical records establish the level of Shirley's capacity at the time the 2021 Will was executed.

The proximity and consistency of these witnesses'^[FN15] observations of Shirley's alertness and contemporaneous hospice records substantially outweigh Dr. Clark's assessment, which was temporally remote from the execution date. Accordingly, the Court finds that Shirley possessed the requisite testamentary capacity when executing her 2021 Will.

Based upon the foregoing analysis, the Court finds Shirley had testamentary capacity to execute the Will dated April 30, 2021 and the Will was signed by her and duly executed based on the specific facts herein.

For all of the reasons stated within this Decision, it is hereby

ORDERED, ADJUDGED and DECREED that the instant petition to vacate the decree of probate dated June 17, 2021 be, and hereby is, DENIED and DISMISSED, and it is further

ORDERED, ADJUDGED and DECREED that the probate petition filed by George Grazadei and assigned Oneida County Surrogate file No. 2021-560/C be, and hereby is, DISMISSED, and it is further

ORDERED, ADJUDGED and DECREED that the Clerk of the Surrogate's Court shall forthwith issue full letters testamentary to Currey Nelson.

This constitutes the Decision, Order and Decree of the Court.