| Matter of Shapiro |
| 2009 NY Slip Op 06215 [65 AD3d 790] |
| August 13, 2009 |
| Appellate Division, Third Department |
| In the Matter of the Estate of Sylvia Shapiro, Deceased. SheldonShapiro, as Executor of Sylvia Shapiro, Deceased, Respondent; Gail Shapiro Bass,Appellant. |
—[*1] Eric Jay Groper, Monticello, for respondent.
Lahtinen, J. Appeal from an order of the Surrogate's Court of Sullivan County (Ledina, S.),entered February 18, 2009, which denied respondent's motion for summary judgment dismissingthe petition.
Decedent died in April 2008 and petitioner, her son, propounded for probate a 1994 will inwhich he was named as executor. Her only other child, respondent, a daughter who receivednothing under the 1994 will, filed numerous objections to the will including, as relevant on thisappeal, that the will was not duly executed. The will had been signed by decedent, contained astandard attestation clause setting forth the formalities of a will ceremony and had beenwitnessed by three individuals, one of whom predeceased decedent. After taking depositionsupon oral questions of the two surviving witnesses, respondent moved for summary judgmentdismissing the probate petition upon the ground that the will had not been duly executed.Surrogate's Court denied the motion and respondent now appeals.
We affirm. "Summary judgment is rare in a contested probate proceeding" (Matter of Paigo, 53 AD3d 836,838 [2008] [citations omitted]). " 'If the attestation clause is full and the signatures genuine andthe circumstances corroborative of due execution, and no evidence [*2]disproving a compliance in any particular, the presumption may belawfully indulged that all the provisions of the statute were complied with, although thewitnesses are unable to recollect the execution or what took place at the time' " (Matter ofCollins, 60 NY2d 466, 471 [1983], quoting Matter of Kellum, 52 NY 517, 519[1873] [citations omitted]). Thus, even where the memory of both attesting witnesses is failed orimperfect, a will nevertheless may be admitted to probate (see Matter of Collins, 60NY2d at 468).
Here, both the surviving witnesses acknowledged the authenticity of their signatures underthe attestation clause. One witness otherwise had little recollection of the germane events from14 years earlier. The other witness executed an affidavit of attestation in August 2008, but thenlater indicated that he thought he may have only read the paragraph in the affidavit which statedthat he had signed his name to the will. Aspects of this witness's testimony at his deposition uponoral questions, viewed in selected isolation, tend to support respondent's assertion that the willwas not duly executed. However, when read in its entirety, the testimony is equivocal on keyissues and fraught with ambiguity. In many instances, the elderly witness appears eitherconfused or evasive, and he repeatedly characterized his recollection as vague. This is hardly thetype of testimony upon which summary judgment dismissing a probate petition can rest (cf.Matter of Cottrell, 95 NY 329, 333 [1884] ["execution of a will might be established bycompetent evidence, even against the positive testimony of the subscribing witnesses thereto"]).Moreover, the fact that there are conflicts on material issues between the witness's affidavit andhis deposition testimony create a credibility question that precludes using his testimony alone toestablish as a matter of law that the will was not duly executed (cf. Matter of Hutchinson, 13 AD3d704, 706-707 [2004]). We agree with Surrogate's Court that respondent failed to make aprima facie case in support of her motion. The remaining issues are academic.
Peters, J.P., Rose, Stein and McCarthy, JJ., concur. Ordered that the order is affirmed, withcosts.