Petitioner seeks leave to renew his motion for summary judgment seeking probate of an instrument dated May 27,1998 and dismissal of the objections filed by Walter Iwachiw, a distributee and petitioner's brother. Objectant, pro se, cross-moves, inter alia, to compel discovery, or in the alternative, to dismiss the probate proceeding and for an order appointing him administrator of decedent's estate.

Prior motions for identical relief were denied on the basis that the papers were procedurally deficient and the parties were given leave to bring motions for summary judgment in proper form. Accordingly, the Court will treat petitioner's motion as a motion for summary judgment and not one for renewal.

The relevant objections consist of the following: that the instrument offered for probate is not the original will and that the drafting of the instrument offered for probate was a product of undue influence exercised upon the decedent by the petitioner, Michael Iwachiw (who is decedent's son and objectant's brother), to wit, "the language of the will was the work product of Michael Iwachiw as the person who prepared the will." The balance of the objections consist of nonsensical assertions and address proceedings brought in other courts that are irrelevant to this probate proceeding.

Summary judgment may be granted only where it is clear that no triable issue of material fact exists (see, Alvarez v Prospect Hosp., 68 NY2d 320; Phillips v. Joseph Kantor & Co., 31 NY2d 307). Although summary judgment must be exercised cautiously, it is proper in a contested probate proceeding where the proponent submits a prima facie case for probate and the objectant fails to raise any genuine factual [*2]issues (Matter of Minervini, 297 AD2d 423; Matter of Coniglio, 242 AD2d 901). Summary judgment may also be granted even where such proceedings involve issues of a fact-sensitive nature, such as fraud and undue influence (see, Matter of Neuman, 14 AD3d 567; Matter of Goldberg, 180 AD2d 528). It is incumbent upon the movant to make a prima facie showing that he or she is entitled to summary judgment as a matter of law (CPLR§ 3213[b]; Zuckerman v City of New York, 49 NY2d 557; Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065; Matter of Coniglio, 242 AD2d 901; Matter of Parravani, 211 AD2d 965).

To defeat a motion for summary judgment, the opponent must assemble and lay bare affirmative proof to demonstrate the existence of a genuine triable issue of fact (Stainless, Inc. v Employers Fire Ins. Co., 69 AD2d 27, affd 49 NY2d 924).

Allegations must be specific and detailed, substantiated by evidence in the record; mere conclusory assertions will not suffice (Iselin & Co. v Mann Judd Landau, 71 NY2d 420; Matter of Newman, 14 AD3d 567). The papers submitted in support of

and in opposition to the motion are scrutinized in a light most favorable to the party opposing the motion. If there is any doubt as to the existence of a triable issue of fact, then the motion must be denied (Robinson v Strong Memorial Hosp., 98 AD2d 976).

The proponent has the burden of proof to establish the validity of the will although no objection was raised with regard to due execution and testamentary capacity (see Matter of Cameron, 47 AD 120, affd 166 NY 610). Petitioner has the burden of proving that the propounded instrument was duly executed in conformity with the statutory requirements (see EPTL § 3-2.1[a]; Matter of Collins, 60 NY2d 466; Matter of Rosen, 291 AD2d 562), and that the testator possessed testamentary capacity (see Matter of Kumstar, 66 NY2d 691; Matter of Hinman, 242 AD2d 900). Where the attestation clause is full and the signatures genuine and the circumstances corroborative of due execution, there is a presumption that all the provisions of the statute were complied with, even where the witnesses are unable to recollect the execution or what took place at the time (In re Estate of Collins, 60 NY2d 466; Matter of Kellum, 52 NY 517). Additionally, as the execution ceremony was supervised by an attorney, there is a presumption of due execution (see, Matter of Tuccio, 38 AD3d 791).

Petitioner annexed to his motion papers the transcripts of the SCPA §1404 examinations of the two attesting witnesses, one of whom is the attorney who drafted the instrument and supervised its execution. Also annexed to the petitioner's motion papers is a copy of the instrument offered for probate, which contains an attestation clause indicating that, on May 27, 1998, the instrument was subscribed, sealed, published and declared by the decedent as her last will and testament in the presence of the witnesses, and that the witnesses, at the testator's request and in her presence and in the presence of each other, subscribed their names as witnesses. Additionally, attached to the instrument offered for probate is an Affidavit of Witnesses which reiterates the witnesses' testimony.

Objectant provided no credible evidence to raise an issue of fact with regard to due execution.

Accordingly, based on the above and there being no objection alleging lack of due execution, the Court finds that the statutory requirements for due execution have [*3]been met.

With respect to the issue of whether the decedent had testamentary capacity, the proponent bears the burden of proving by a preponderance of evidence that, at the time of execution, decedent understood three things in a general way: (1) the nature and extent of his or her property; (2) the natural objects of his or her bounty; and (3) the provisions of the instrument (Matter of Kumstar, 66 NY2d 691,692).

The capacity to execute a valid will is minimal - lower than that required to execute most other legal documents or contracts (In re Coddington, 281 AD 143, affd 307 NY 181). The attesting witnesses may give their opinion on whether the testator had testamentary capacity at the will execution (Clapp v. Fullerton, 34 NY 190)

Petitioner annexed to his motion papers the transcripts of the SCPA §1404 examinations of the two attesting witnesses, one of whom is the attorney who

drafted the instrument and supervised its execution, both of who testified that the decedent was of sound mind, memory and understanding under no restraint and in no respect incompetent to execute the will. Additionally, attached to the instrument offered for probate is an Affidavit of Witnesses which reiterates the witnesses' testimony.

Objectant provided no credible evidence to raise an issue of fact with regard to the testamentary capacity of the decedent.

Accordingly, based on the above and there being no objection alleging lack of testamentary capacity, the Court finds that the statutory requirement for testamentary capacity has been met.

The objectant did not allege fraud in his objections, however, he did raise such a claim in his motion papers. Summary judgment may be defeated with an unpleaded defense in the absence of surprise and prejudice, such as in the instant matter. (see Seaboard Sur. Co. v. Negro Bros., 222 AD2d 574). Nevertheless, the objectant's claim of fraud fails.

In order to state a claim for fraud, an objectant must demonstrate that the person accused of such fraud knowingly made a false statement to the testator that caused her to execute a will that disposed of her property in a manner differently than she would have in the absence of that statement (In re Beneway, 272 AD 463). Fraud, therefore, requires the showing that a knowingly false statement was made.

In support of his claim of fraud, the objectant annexed a copy of an unsigned letter that he drafted and sent to the attorney draftsman which summarized the events of a meeting that took place on May 28, 2002 at the attorney draftsman's office. Such document, however, does not contain any false statements allegedly made by the attorney draftsman or the petitioner.

On the other hand petitioner annexed to his motion the SCPA § 1404 transcripts as well as the Affidavit of Attesting Witnesses in support of his claim that the execution of the will by the decedent was not caused or procured by fraud of the petitioner or any other person.

Thus, as the objectant failed to provide any credible evidence to support a claim of fraud, the branch of the motion to dismiss any allegation of fraud is granted.

Objectant also contends that the will is a product of undue influence that was exerted over the decedent by the petitioner. [*4]

For a will to be invalidated based on undue influence, " it must be shown that the influence exercised amounted to a moral coercion, which restrained independent

action and destroyed free agency, or which, by importunity which could not be resisted, constrained the testator to do that which was against his free will and desire, but which he was unable to refuse or too weak to resist " (Children's Aid Soc. of City of NY v Loveridge, 70 NY 387,394). Undue influence "may . . . be proved by circumstantial evidence, but this evidence . . . must be of a substantial nature" (Matter of Walther, 6 NY2d 49,54). The burden of proof ultimately rests with the objectant on this issue (see Matter of Anna, 248 NY 421; Matter of Ruef, 180 AD 203, affd 223 NY 582).

The objectant did not provide any admissible evidence to support a claim of undue influence. Initially he makes bald assertions that his mother wanted a share of her estate to be left for him. Secondly, objectant relies upon his claim that the decedent revoked the purported will when she became cognizant that the purported will only provided for the petitioner. However, such allegation is contradictory to objectant's assertion that the decedent was susceptible to undue influence.

Moreover, there is no evidence that the will was the work product of the petitioner as the person who prepared the will, that the petitioner interfered with the drafting of the instrument, spoke to the attorney-draftsperson about the will before its execution, was present during any conversations between the decedent and the attorney-draftsperson, was present during the execution of the document, or even knew the contents of the will beforehand. Furthermore, the affidavit of witnesses provides that the decedent was not under restraint. The balance of the submissions are pure speculations on objectant's part. The fact that the will left everything to the proponent is not enough evidence to sustain an objection of undue influence (see Matter of Walther, 6 NY2d 49,55, citing Matter of Dowdle, 224 AD 450, affd 256 NY 629).

As there is no proof in admissible form that would establish undue influence the objectant has failed to raise an issue of fact on such claim. Accordingly, summary judgment dismissing the objection of undue influence is granted.

Turning to the branch of the motion to dismiss the objection that the instrument offered for probate is not an original will, but rather a color photocopy, each of the attesting witnesses testified at the SCPA §1404 examinations that the instrument offered for probate is in fact the original will.

In opposition, the objectant submitted a notarized document dated December 8, 2012 from an individual who identified himself as an "expert on copies." The document states that the expert inspected the document offered for probate and concluded that it is a color copy of another color copy; and that the document is not on red lined paper but, rather, a copy of red lined paper.

In addition, the objectant submitted his affidavit dated December 7, 2012 stating that the original will was destroyed by the decedent in his presence on May 28, 2002.

The petitioner's reply did not address the evidence proferred by the objectant except to dismiss it as being " irrelevant, false, and or unsubstantiated."

After oral argument, based on the evidence submitted, and based on the Court's review of the instrument offered for probate, the Court finds there are issues of fact as to whether this instrument is an original document as opposed to a color photocopy.

Accordingly, the branch of petitioner's motion to dismiss this objection is denied. [*5]

The branch of objectant's cross-motion to compel discovery is denied.

On March 13, 2012 the parties entered into a discovery schedule setting forth the dates for document discovery and depositions of the parties and providing for the

completion of all discovery by August 15, 2012. Petitioner indicates that he appeared on June 5, 2012 for his deposition, but the objectant failed to appear. Additionally, petitioner indicates that he was present on July 12, 2012 for non-party depositions. Once again, however, the objectant did not appear. The objectant also failed to appear at the scheduled pre-trial conference on August 28, 2012 and his default was noted.

Petitioner subsequently brought the initial motion for summary judgment and objectant cross-moved for summary judgment. No request for additional discovery was made by objectant at that time, and both motions were denied as previously noted.

The objectant annexed to his cross-motion a copy of only the first page of "Combined Demands." These demands, however, do not appear to have been made in the instant proceeding, but rather in an action or proceeding in the Supreme Court of the State of New York. Not only is the complete demand not provided, there is no indication of when the demand was made, nor is there a copy of an affidavit of service indicating that the demand was served on the petitioner.

The Court notes, however, that a response to objectant's discovery demands was served by the petitioner on May 4, 2012 and same was filed with the Court on May 15, 2012 and that the objectant defaulted in appearing on the dates scheduled for the depositions of the parties and non-parties and the pre-trial conference. Finally, the Court notes that the objectant filed his first cross-motion on October 11, 2012, well after the date that discovery was to be completed. Accordingly, any further discovery sought by the objectant is deemed waived.

In light of the Court's findings above with respect to due execution, testamentary capacity, undue influence and fraud there is no legal basis to dismiss the probate petition. Accordingly, the branch of the cross-motion seeking to dismiss the probate petition is denied. The balance of the relief sought in the cross-motion was not pled in the objections and, in any event, is not within the jurisdiction of this Court. Accordingly, the cross-motion is denied in its entirety.

The parties are directed to file a Note of Issue and settle an order framing issues on or before July 8, 2013 for trial on July 22, 2013.

This is the decision and order of the Court.

Dated: June 21, 2013___________________________

SURROGATE