| Matter of Buchting |
| 2013 NY Slip Op 07793 [111 AD3d 1114] |
| November 21, 2013 |
| Appellate Division, Third Department |
| In the Matter of the Estate of Arthur Buchting, Deceased.Barbel Buchting, Respondent-Appellant; Christian Buchting et al.,Appellants-Respondents. |
—[*1] John P. Kingsley, Catskill, for respondent-appellant.
Garry, J. Cross appeals from an order of the Surrogate's Court of Greene County(Pulver Jr., S.), entered August 29, 2012, which, among other things, admitted to probatean instrument purporting to be the last will and testament of decedent.
Petitioner is the surviving spouse of decedent, who died in August 2011, andrespondents are decedent's surviving children from a previous marriage. In November2011, petitioner commenced this proceeding seeking to admit a will to probate.Thereafter, the attorney who drafted the will and supervised its execution in April 2011(hereinafter the supervising attorney) testified at an examination pursuant to SCPA 1404.The two attesting witnesses were also called, but upon taking the stand, both invokedtheir 5th Amendment rights against self-incrimination and refused to testify. Respondentsfiled objections based upon lack of due execution, lack of testamentary capacity andundue influence, and thereafter moved to dismiss the petition based upon petitioner'sfailure to establish due execution. Petitioner cross-moved for summary judgmentdispensing with the testimony of the attesting witnesses and admitting the will to probate.Respondents opposed the cross motion, alleging, among other things, that summaryjudgment would be premature as discovery was incomplete. Surrogate's Court denied[*2]both motions, finding that petitioner had made out aprima facie case of due execution, but that summary judgment was improper because ofconflicts in the evidence. Nonetheless, the court dismissed respondents' objections andadmitted the will to probate. Respondents appeal and petitioner cross-appeals.
Surrogate's Court properly denied respondents' motion to dismiss the petition. Toestablish that the will was duly executed, petitioner was required to produce the attestingwitnesses for examination unless the law permitted the court to dispense with theirtestimony (see SCPA 1404 [1]). The applicable statutes do not address theinvocation of the privilege against self-incrimination by attesting witnesses, but thisCourt has found that such an invocation is akin to a failure to recall the eventssurrounding a will's execution and, thus, that a will may be admitted to probate pursuantto SCPA 1405 (3) when one witness invokes the privilege, based on the testimony of theother witness or witnesses and sufficient other proof (see Matter of Hutchinson, 13 AD3d 704, 706-707 [2004]).
Respondents contend that, as both attesting witnesses invoked the privilege here, therequirement in SCPA 1405 (3) for the testimony of "at least [one] other attesting witness"was not satisfied.[FN1]However, the Court of Appeals has held that SCPA 1405 (3) was not intended to"revolutionize[ ] prior practice" by requiring at least one attesting witness to testify infavor of a will (Matter of Collins, 60 NY2d 466, 472 [1983]). Instead, in holdingthat a will may be admitted to probate under SCPA 1405 (3) when no attesting witnessrecalls its execution, the Court found that—consistent with prior law—thestatute requires attesting witnesses to be "examined, and all relevant testimony elicited"(id. [citation omitted]) but does not impose requirements upon the substance oftheir testimony. Respondents' claim that an attesting witness who invokes the privilegeafter taking the stand during an examination pursuant to SCPA 1404 has not been"examined" for this purpose is inconsistent with this interpretation of SCPA 1405 (3) andwith this Court's determination in Hutchinson. Further, to preclude the probate ofa will as a matter of law because both attesting witnesses refuse to testify onconstitutional grounds would come perilously close to drawing a prohibited inferencefrom the invocation of the privilege by nonparties (see State of New York vMarkowitz, 273 AD2d 637, 646 [2000], lv denied 95 NY2d 770 [2000];Jerome Prince, Richardson on Evidence § 5-710 at 303 [Farrell 11th ed 1995]).The issue thus distills to whether there was sufficient other evidence to establish a primafacie case of due execution, and we find that there was.
The supervising attorney testified in detail about the execution of the will, describinga ceremony that satisfied the requirements of EPTL 3-2.1. A presumption of dueexecution arises where, as here, the execution of a will is supervised by the attorney whodrafted it (see Matter ofWalker, 80 AD3d 865, 866 [2011], lv denied 16 NY3d 711 [2011]; Matter of Doody, 79 AD3d1380, 1381 [2010]; Matterof Leach, 3 AD3d 763, 764 [2004]).[FN2]To rebut this presumption, [*3]respondents were requiredto offer "positive proof that the formal requirements of execution were not met" (Matter of Pilon, 9 AD3d771, 772 [2004]). Here, no evidence contradicting the testimony of the supervisingattorney was produced. A witness's failure to remember a will's execution is "not thesame as testifying that the formalities . . . did not occur" (Matter ofRuso, 212 AD2d 846, 847 [1995]; see Matter of Scaccia, 66 AD3d 1247, 1251 [2009]), andneither is a refusal to testify based on constitutional privilege, particularlysince—as previously noted—no negative inference may be drawn from suchan invocation. Respondents challenge the veracity of the supervising attorney and argue,based upon various minor irregularities in the documents that she drafted, that she wasunfamiliar with the necessary procedure—but these claims fail to provide therequisite affirmative proof. Thus, petitioner established a prima facie case of dueexecution that respondents did not rebut, and Surrogate's Court properly denied themotion to dismiss the petition and dismissed the due execution objection (see Matterof Walker, 80 AD3d at 866).
However, the remaining objections should not have been dismissed. At the close ofthe SCPA 1404 hearing, the parties agreed that their initial motions would be based upon"the record that is here"—that is, due execution—and depending upon theoutcome of those motions, discovery on the remaining issues could follow. Consistentwith this agreement, the parties' motions were limited to the issue of dueexecution.[FN3]Summary judgment is unusual in a contested probate proceeding (see e.g. Matter of Castiglione,40 AD3d 1227, 1229 [2007], lv denied 9 NY3d 806 [2007]) and ispremature lacking discovery. Respondents, who bore the burden of proof as to theirundue influence objection (seeMatter of Colverd, 52 AD3d 971, 973 [2008]), had not yet had an opportunityfor discovery on this issue. Moreover, it was petitioner's burden to establish that decedentpossessed the requisite testamentary capacity (see Matter of Kumstar, 66 NY2d691, 692 [1985]; Matter of Walker, 80 AD3d at 866), and she had not yet doneso.[FN4]Accordingly, the will should not have been admitted to probate, and the matter must beremitted for further discovery.
Stein, J.P., McCarthy and Spain, JJ., concur. Ordered that the order is modified, onthe law, without costs, by reversing so much thereof as dismissed respondents' objectionsbased on undue influence and testamentary capacity and admitted the will to probate;matter remitted to the Surrogate's Court of Greene County for further proceedings notinconsistent with this Court's decision; and, as so modified, affirmed.
Footnote 1: Contrary to petitioner'scontention, the testimony of the supervising attorney does not satisfy this requirement;the record establishes that she was not an attesting witness.
Footnote 2: Such a presumptionmay also arise when attesting witnesses sign a self-executing affidavit (see e.g.Matter of Walker, 80 AD3d at 866), but no such effect can be given to the statementallegedly signed by the attesting witnesses here. Such an affidavit has no independentprobative effect when a party challenges it by demanding an SCPA 1404 examination(see Margaret V. Turano, Practice Commentaries, McKinney's Cons Laws ofNY, Book 58A, SCPA 1406 at 266). Further, as respondents were deprived of theopportunity to examine the witnesses about the document by their invocation of theprivilege, no presumption arises (compare Matter of Hutchinson, 13 AD3d at705-706).
Footnote 3: Petitioner did statebriefly in a footnote that respondents had introduced no evidence on undue influence ortestamentary capacity, but neither mentioned the objections nor addressed the respectiveburdens of proof.
Footnote 4: Petitioner's argumentthat the supervising attorney's testimony established decedent's testamentary capacity wasraised for the first time on appeal, and is thus not preserved (see Matter ofWalker, 80 AD3d at 868 n).