In this contested probate proceeding, the objectants, the decedent's two grandchildren and sole distributees, move pursuant to CPLR 3212 for summary judgment denying probate to the propounded instrument dated March 28, 2007, based on lack of due execution. The proponent, the decedent's niece who is the nominated executrix and sole beneficiary under the instrument, opposes the motion.

The decedent died at a nursing home on April 11, 2007 at the age of 87. The four-page, typewritten instrument was witnessed at Kings Harbor Multicare Center, where the decedent was a patient, by two witnesses, contains an attestation clause, was prepared by an attorney who supervised its execution, and has a self-proving affidavit attached. It appears that the sole asset of the estate is real property where one of the objectants currently resides.

The motion for summary judgment is based on only one of the three grounds interposed in the objections, namely, that 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) the witnesses were not aware that they were in fact witnessing the decedent's will.

In support of their motion for summary judgment, the objectants submit, inter alia, transcripts of the SCPA 1404 examinations of the two attesting witnesses, Robert Coleman, a nephew of the decedent, and Claudia Frazier, a long time friend of the decedent. According to Coleman's testimony, on the same date that the will was signed the proponent called and asked him to come to the nursing home to witness a power of attorney for the decedent. After Coleman arrived at the decedent's room, the proponent entered with Joseph A. Kelly, the drafting attorney, who asked everyone to leave the room for a few minutes. Thereafter, Kelly asked both witnesses to return to the decedent's room which they did. In the room, there was no discussion about the document, other than Kelly asking Coleman to assist the decedent in signing the document as she was having trouble holding the pen; a request Coleman states he refused. Coleman testified that neither he nor the other [*2]attesting witness were ever told that they were witnessing the decedent's will, and at no time did the decedent herself request that they witness her will. Nonetheless, Coleman acknowledges his signature on both the propounded instrument and the self-proving affidavit, but states that he did not read the documents and was unaware of what he was signing.

The other witness, Claudia Frazier, stated that the proponent also asked her to witness a document for the decedent, but she was never told that the document was a will. She further testified that during the signing of the documents, the attorney who was present never told her that she was witnessing a will, and the decedent never requested that she witness or sign the will. Although she remembered signing only one document, she acknowledged her signature on the will and on the self-proving affidavit; however, she reiterated that she was never aware that any document she signed was, in fact, the decedent's will.

The objectants contend that EPTL 3-2.1 (a) (3) requires the testator, at some point, to declare or "publish" to the attesting witnesses that the instrument being witnessed is the testator's will, and the witnesses' testimony that no such declaration was made and that both were unaware that they were witnessing the decedent's will entitles the objectants to summary judgment denying probate.

The proponent opposes the motion asserting, inter alia, that: (1) the objectants' motion "makes no sense" as they claim that there are no triable issues of fact as to lack of due execution, yet their sole basis for seeking summary judgment is that during the SCPA 1404 examinations the attesting witnesses recanted their prior statements (the attestation clause and self-proving affidavits); (2) whether the witnesses were "duped" is a question of fact which precludes summary judgment; (3) the motion is defective as there are no supporting affidavits by persons with knowledge of the relevant facts, and the SCPA 1404 transcripts of the witnesses cannot be relied on as they are unsigned and there is no proof that they were served on the non-party attesting witnesses or that they were returned by them; (4) the argument that the will was not "published" is insufficient to refute due execution where the execution is attorney supervised and an attestation clause and self-proving affidavits exist, as publication can be inferred by conduct and circumstances as well as words; and, (5) in any event, the motion is premature as discovery is not complete.

The proponent also relies upon an affirmation submitted by the drafting attorney, Kelly, who affirms that: he reviewed the will with the decedent in front of the two witnesses; he requested that the decedent sign the document in front of the two witnesses; both witnesses were asked to sign the propounded instrument and were told prior to signing that they were signing the decedent's last will; he explained to both witnesses the importance of the self-proving affidavit as they signed it; and, he saw both witnesses sign both documents.

Summary judgment cannot be granted unless it clearly appears that no material issues of fact exist (see Phillips v Joseph Kantor & Co., 31 NY2d 307 [1972]; Glick & Dolleck, Inc. v Tri-Pac Export Corp., 22 NY2d 439 [1968]). The movants must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence in admissible form to demonstrate the absence of any material issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; Friends of Animals, Inc. v Associated Fur Mfrs. Inc., 46 NY2d 1065 [1979]). When the movants have 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 (see 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 [*3]issues of credibility may not be determined on the motion but must await the trial (see F. Garofalo Elec. Co. v New York Univ., 300 AD2d 186 [2002]).

It is well settled that the burden of proving that an instrument was duly executed is on the proponent who must prove "due execution" by a preponderance of the evidence (see Matter of Falk, 47 AD3d 21, 26 [2007], lv denied10 NY3d 702 [2008]). Where a will contains an attestation clause and is attorney supervised, there is a presumption that the instrument was duly executed and is thus a valid will (see id.; Matter of Pilon, 9 AD3d 771 [2004]; Matter of Leach, 3 AD3d 763, 764 [2004]; see also Matter of Paigo, 53 AD3d 836 [2008]; Matter of Castiglione, 40 AD3d 1227, 1228 [2007], lv denied 9 NY3d 806 [2007]). Nonetheless, it is "incumbent upon Surrogate's Court to examine all of the circumstances attendant to the execution of the document in order to ascertain its validity" (Matter of Falk, 47 AD3d at 26; see also Matter of Collins, 60 NY2d 466, 473 [1983]).

The mere fact that the attesting witnesses either cannot recall the details of the execution ceremony or recant their testimony does not mean that an instrument containing an attestation clause automatically must be denied probate. Instead, it merely increases "the care and vigilance that must be exercised in examining the remaining evidence" (Matter of Collins 60 NY2d at 473).

Under the circumstances presented, including that it appears that the attesting witnesses are recanting their sworn affidavits as to due execution, there is a triable issue of fact as to due execution and summary judgment must be denied (Matter of Shapiro, 65 AD3d 790, 791 [2009]; Matter of Falk, 47 AD3d at 21; Matter of Ruso, 212 AD2d 846 [1995]; Matter of Covo, NYLJ, May 13, 2009, at 40, col 5). Furthermore, as the proponent points out that the SCPA 1404 transcripts of the non-party witnesses are not signed and there is no evidence that they were actually served on the non-party witnesses, these transcripts cannot be relied on by the court "as admissible evidence" entitling a party to judgment as a matter of law (see CPLR 3116 [a]; Martinez v Liberty Ave. Realty Corp., 47 AD3d 901 [2008]; Palmer v Trachetenberg, 268 AD2d 304 [2000]). Inasmuch as the court finds that the motion must be denied as there are triable issues of fact, the other issues raised in opposition to the application will not be addressed.

The parties are directed to appear on August 23, 2010 at 9:30 a.m. for a pretrial conference. The Chief Clerk is to mail a copy of this decision, which constitutes the order of the court, to respective counsel for the proponent and the objectants.

Proceed accordingly.



SURROGATE

Lee Holzman