In this probate proceeding, the objectant, the decedent's niece, moves for summary judgment denying probate to the propounded instrument dated April 10, 2006. The proponents, the Administrator General of the State of Israel and his attorney, as well as the guardian ad litem for an infant beneficiary under the instrument, oppose the motion and cross move for summary judgment dismissing the objections and admitting the instrument to probate.

The decedent, who had metastatic cancer, died on May 21, 2006 at the age of 84. The objectant and her brother, the decedent's sole distributees, are the principal beneficiaries and nominated fiduciaries in an instrument dated November 9, 1998, but are expressly disinherited in the propounded instrument which bequeaths $40,000 to the grandson of the decedent's treating physician, her personal property to Histadrut Israel, and the residuary estate to the State of Israel. It appears that the estate has a value of approximately $550,000.

The movant's objections allege that: (1) the 2006 instrument was not the decedent's last will; (2) the instrument was not duly executed, in that (a) the decedent did not declare it to be her last will and testament in the presence of witnesses and (b) did not specifically request that those persons act as witnesses; (3) the propounded instrument was not executed under the supervision of an attorney, and lacks an attestation clause; and, (4) on April 10, 2006 the decedent was not of sound mind or memory and was not mentally capable of making a will.

In support of her motion for summary judgment, the movant submits, inter alia, transcripts of the SCPA 1404 examinations of the two attesting witnesses, a geriatric nurse who attended the decedent, and a patient representative, both of whom were employees of Mount Sinai Hospital, where the propounded instrument was executed. According to the nurse's testimony, on or about April 10, 2006 the decedent told her that she wanted to get her affairs in [*2]order and make a new will. The nurse conveyed the decedent's request to the patient representative who had some experience in preparing wills, health care proxies and powers of attorney. The patient representative testified that at the nurse's request, she went to the decedent's room and took handwritten notes of the decedent's statements that she wanted to change the beneficiaries to her will and leave a bequest to her physician's grandson and her residuary estate to the State of Israel, to be used for social services programs. The patient representative then returned to her office, typed what the decedent had dictated and returned to the decedent's room accompanied by the nurse and a notary. The patient representative was certain that she would have followed her usual practice of reading the prepared instrument to the decedent, who then signed it, after responding that the will expressed her wishes. The witnesses then signed at the end of the instrument and their signatures were notarized. Both witnesses testified that the decedent did not discuss the extent of her assets, but both remembered that she explicitly did not want her niece and nephew to inherit from her. Although the attesting witnesses did not specifically recall whether the decedent personally requested that they act as witnesses to the will, both witnesses were certain that she was the one who requested on that date that the will be prepared and that she understood that was why they were gathered in her hospital room.In further support of her motion, the movant submits: (1) a copy of the patient admission form from Mount Sinai Hospital dated April 3, 2006, indicating that the decedent stated that she was being admitted for "out of control diabetes," noting that the decedent complained of having trouble remembering things, and quoting the decedent as stating that "I couldn't care whether I live or die...I've lived long enough and I don't want to suffer..."; (2) a statement from Calvary Hospital, to which the decedent was transferred for hospice care, indicating that upon her admission on April 12, 2006, the decedent was in a confused, forgetful condition and could not furnish a medical history; and (3) a comment on the Calvary medical chart on the admission date that the elderly decedent was alert with some cognitive impairment, stated that she had a will and that her boss had a copy but would not give her employer's name, and at different times, stated that either she did or did not have a family. The movant further argues that the patient representative who drafted the will could not act on the decedent's behalf during the execution ceremony because she was neither an attorney nor a family member. Additionally, the movant points out that in the 2006 instrument, the objectant is referred to by her maiden name, even though the objectant had used her married name for over 40 years, and the decedent's nephew's first and middle names are reversed.

In opposition to the motion and in support of their respective

cross motions, the cross movants rely upon portions of the same SCPA 1404 transcripts, in which they point out that: (1) the nurse testified that the decedent stated that she was "adamant" about revising her will to disinherit the objectant and her brother because of their alleged lack of communication with her; (2) the patient representative testified that when she was asked to prepare a will, her normal practice was to confirm the testator's wishes at least twice before typing up the will, reconfirm the testator's wishes after typing the will and read the will to the testator; (3) the testimony by both witnesses that the decedent understood what was going on, was very clear about her wishes, and showed no disorientation or uncertainty; and (4) the patient representative's testimony that the decedent initiated and directed the revision of her will, dictated that will, and answered "yes" both when asked if the will expressed her wishes and if [*3]she wanted to sign her will in front of the two witnesses and the notary, who were all present in the decedent's hospital room when the will was executed. The cross movants contend that the depositions constitute proof of substantial compliance with the publication requirement of EPTL 3-2.1. Additionally, the cross movants allege that any statement by the movant with respect to the decedent's mental or physical condition is without personal knowledge and has no probative value, as she concedes that she did not visit the decedent during her stay at Mount Sinai.

Summary judgment cannot be granted unless it clearly appears that no material issues of fact exist (Phillips v Joseph Kantor & Co., 31 NY2d 307 [1972]; Glick & Dolleck, Inc. v Tri-Pac Export Corp., 22 NY2d 439 [1968]). The movant must make a prima facie showing of entitlement to judgment as mater of law, tendering sufficient evidence in admissible form to demonstrate the absence of any material issue of fact (Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; Friends of Animals, Inc. v Associated Fur Mfrs. Inc., 46 NY2d 1065 [1979]). When the movant has made out a prima facie case, the burden of going forward shifts to the party opposing the motion to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact (Zuckerman v. City of New York, 49 NY2d 557 [1980]). Summary judgment is a drastic remedy which requires that the party opposing the motion be accorded every favorable inference and issues of credibility may not be determined on the motion but must await the trial (Westhill Exports, Ltd. v Pope, 12 NY2d 491 [1963]). The papers submitted on a summary judgment application are always scrutinized in a light most favorable to the party opposing the motion (Robinson v Strong Mem. Hosp., 98 AD2d 976 [1983]).

Here, summary judgment cannot be granted in favor of any party on the issue of testamentary capacity because, when the proof adduced is viewed in a light most favorable to the other side, there is a triable issue of fact as to this issue. The cross movants correctly note that less testamentary capacity is needed to execute a will than any other legal document (2 PJI3d 7:48 at 1314 [2008]) and that the crucial period of time is at the time the will was executed (id at 1315-1316). Moreover, they also correctly note that both attesting witnesses are of the opinion that at the time the will was executed the decedent was oriented, responsive and competent. Nonetheless, when the evidence is viewed in a light most favorable to the objectant, there is a genuine issue of fact with respect to testamentary capacity. Specifically, an issue as to testamentary capacity arises from the following: (1) the hospital records both prior to and after the execution of the will raise some issue as to the decedent's mental capacity; (2) the lack of any meaningful conversation between the decedent and the non-lawyer drafter with respect to whether the decedent had any idea as to the nature and extent of her property, or whether she had explored any other options for the disposition of her assets or even whether the dispositions in the will were contemplated prior to April 10, 2006 ; and (3) the fact that the decedent failed to recognize that her nephew's first and middle names were inverted in the will.

However, the cross movants are entitled to summary judgment dismissing all of the objections other than the testamentary capacity objection. The objectant failed to submit any support for the ambiguous objection that "the instrument is not the decedent's will." In the absence of any allegation of forgery or other explanation, Objection "1" is deemed subsumed in the usual objections as to lack of due execution and testamentary capacity and is dismissed for lack of specificity (Matter of Reese, NYLJ, Oct. 29, 2004, at 27, col 4).

With respect to the allegation in Objection "2" that the will was not duly executed in [*4]compliance with EPTL 3-2.1, the objectant contends that there was a lack of publication which is fatal to due execution. Although publication requires some unequivocal act by the testator to indicate to the attesting witnesses that the testator is signing a document that is testamentary in character, the required publication is established by the conduct of the parties where, as here, it is uncontroverted that the decedent made a request to each of the two attesting witnesses that they see to it that a will be prepared for her; thereafter, on the same date, the will was presented to her and she indicated to the witnesses that it expressed her wishes; and she then, after the patient representative asked if she wanted to sign the will in the presence of the witnesses, proceeded to sign the will in their presence (see Matter of Beckett, 103 NY 167 [1886]; Matter of Hedges, 100 AD2d 586 [1984]; Matter of Mullenhoff, 278 APP. Div. 936 [1951]; Matter of Pascal, 2 Misc 2d 337 [1956]; 2 PJI 3d 7:45 at 1305 [2008]). Accordingly, objection "2" is dismissed.

With respect to Objection "3", while the movant is correct in averring that the propounded instrument is not entitled to the presumption of due execution given to a will whose execution was supervised by an attorney (see Matter of Cottrell, 95 NY 329 [1884]; Matter of Finocchio, 270 AD2d 418 [2000]), there is no requirement that a will execution must be supervised by an attorney. Furthermore, there is no law invalidating a will which does not have an attestation clause (see Matter of Tooker, 21 AD2d 928 [1964], lv denied 15 NY2d 482 [1964]). Accordingly, Objection "3" is dismissed.

Based upon the foregoing, the objectant's motion for summary judgment is denied in its entirety. The cross motions for summary judgment are granted to the extent that the first three objections are dismissed, and are otherwise denied. The matter will appear on the ready-for-trial calendar of the court on compliance with Uniform Rules for Surrogate's Court (22 NYCRR) §§ 207.29 and 207.30.

Settle order.

SURROGATE