Dermot Joseph Demis died a resident of Albany County on March 8, 2008. A purported last will and testament was offered for probate by his surviving spouse on May 7, 2008. The purported will is dated December 6, 1999, and according to the petition the attesting witnesses are James F. Hughes, Esq. and Donita A. Morris.

Dermot Demis was survived by nine distributees: his surviving spouse and petitioner herein, Dolores Murphy Demis, and eight children, William, Nancy, John, Amy, Robert, Kevin Elizabeth and Geoffrey. All parties are represented by counsel. The eight children have filed objections to probate alleging failure to prove due execution, failure to prove that the 1999 will is genuine, and fraud, duress and undue influence.

A SCPA 1404 examination of attesting witnesses was held on November 13, 2008. James Francis Hughes, Esq., the attoney/draftsman and 1st witness to the will testified, along with his law office assistant and 2nd witness to the will Donita Ann Forgal, f/k/a Donita Morris. Additionally, Elaine Hughes, the document preparer in the Law Office of James Hughes, testified. Thereafter a purported duplicate original of the December 6, 1999 document was submitted and the examination was continued to allow for discovery; the hearing was concluded on December 10, 2009.

There is now before the Court a Motion for Summary Judgment by respondents/objectants wherein they seek an order denying probate of the two purported last will and testaments dated December 6, 1999. In support of the motion, an affimation from Dale M. Pager, Esq. and Richard J. Miller, Jr. have been filed along with a memorandum of law and reply memorandum.

In opposition thereto petitioner has filed affidavits from Crystal Doolity, Esq., petitioner Dolores M. Demis and Dennis J. Ryan, a forensic document examiner.

Summary judgment is appropriate where there is no question of fact requiring resolution by a trier of fact (see Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; Van Alstine v Padula, 228 AD2d 909 [3rd Dept. 1996], appeal dismissed 89 NY2d 858 [1996]). In order to succeed on a motion for summary judgment, the movant "must make 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" (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Zuckerman v City of New York, supra). Once this showing has been made, the burden shifts to the party opposing the motion to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which requires a trial of the action (see Alvarez v Prospect Hosp., supra).

Petitioner has the burden of proving due execution of a last will and testament. SCPA §1404 provides, in pertinent part, that at least two of the attesting witnesses must be produced before the court and examined before a written will is admitted to probate. SCPA §1406, subd. 1 provides that in addition to other procedures for the proof of wills, any or all of the attesting witnesses to a will may at the request of the testator or after his death, at the request of the executor of the will for the proponent or the attorney for the proponent or of any person interested, make an affidavit before any officer authorized to administer oaths stating such facts as would if uncontradicted establish the genuineness of the will, the validity of its execution and that the testator the time of execution was in all respects competent to make a will and not under [*2]any restraint. The sworn statement of a witness so taken shall be accepted by the court as though it had been taken before the court unless a party entitled to process in the proceeding raises objection thereto.

The December 6, 1999 purported wills each were submitted to the Court attached to what is commonly known as a "self-proving" affidavit authorized by §1406. Ordinarily, this would have been sufficient proof of due execution, however, because objections were filed, proof pursuant to §1404 was required.

For due execution a proponent must prove that the requirements of EPTL §3-2.1 have been met. Essentially, the will must be signed by the testator in the presence of each of the attesting witnesses, or shall be acknowledged by the testator to each of them to have been affixed by him. At some time during the ceremony of execution the testator must declare to each of the attesting witnesses that the instrument to which his signature is affixed is his will. Lastly, the witnesses must both affix their signatures and addresses to the document in the presence of the testator and each other.

The "self-proving" affidavit does, in fact, recite all of the elements necessary to establish due execution. However, upon examination by the proponent, both of the attesting witnesses and the scrivener of the document all testified that they had not seen the purported "wills" before. In fact, all three witnesses testified that the purported "wills" were in a font not used in their law office, that the font did not match the attestation page nor the "self-proving" affidavit, and that the documents submitted for probate were not the will prepared and executed in their law office on December 6, 1999.

Proponent suggests that the objectants have failed to meet their burden for summary judgment because they rely on faulty memory of the witnesses. On the contrary, the witnesses were very clear in both memory and testimony. Although the attestation page and "self-proving" affidavit contain their genuine signatures and they testified that they recognized those documents as genuine, the attached "wills" were not the document they witnessed and attested to.

No one has suggested that the signatures of the decedent or the witnesses are not authentic. Rather, the attesting witnesses have testified that the proffered documents are not the document that they witnessed.

On November 13, 2008, James Hughes, the attorney-draftsman and subscribing witness testified, in part, to the following:

"MR. DALEY: Alright. Alright now based upon your custom and practice and how you handled will signings and executions, was it your habit to have clients sign duplicate original wills?

JAMES HUGHES: No.

MR. DALEY: Alright. Having said that though, do you agree that... and I'm going to refer not to proponent's exhibit No. 1, which is the will that is being propounded.

JAMES HUGHES: Um-hmm.

MR DALEY: Would you agree that appears to be a will that Dr. Demis signed and that [*3]you witnessed?

JAMES HUGHES: It appears to be a will that Dr. Demis signed, but it's not the will that Dr. Demis signed.

MR. DALEY: How do you know that?

JAMES HUGHES: Because I would never have a will of this nature come out of my office. There's language in this will that we have never used. We never used per representation, we always used per capita. But there's other language in this will that we never used.

MR. DALEY: Right, so if I'm to understand you correctly, the first four pages you certainly did not prepare?

JAMES HUGHES: Absolutely not.

MR. DALEY: Alright. Having said that, is it possible, and I know you don't remember December 6th, 1999 specifically, but would you agree that it's possible that you witnessed a will for Dr. Demis that you did not personally prepare?

JAMES HUGHES: No, it's not possible. I would not do that.

MR. DALEY: You don't think you would?

JAMES HUGHES: I absolutely would never do that."

One of the two attesting witnesses stated unequivocally that the documents being submitted as the last will and testament of the decedent are not the documents he prepared or witnessed.

Additionally, the Court notes that the attestation clause is on a page separate from any other writings submitted, and contains no text or writing by the testator that would ordinarily link the will to the other documents.

The failure of the attesting witness to "prove" the will is the essence of objectants motion for summary judgment, and the Court finds that they have met their prima facie burden, so that as a matter of law they are entitled to judgment denying probate.

Petitioner/respondent offers in rebuttal affidavits of the petitioner/wife, petitioner's counsel and a purported forensic document examiner which attest to the genuineness of the decedent's signature. In fact, no one, including the attesting witnesses question the authenticity of the decedent's signature. It is not, however, the genuineness of the signature that entitles the objectants to summary judgment, but the failure of the proponent to prove the due execution of the actual documents submitted.

Summary judgment is granted. Movant to submit decree in accordance herewith. [*4]

Dated: 15 December 2010

_____________________________

Hon. Cathryn M. Doyle

Surrogate