| Matter of Grancaric |
| 2009 NY Slip Op 09108 [68 AD3d 1279] |
| December 10, 2009 |
| Appellate Division, Third Department |
| In the Matter of the Estate of Nino Grancaric, Deceased. Arlene C.Scheurer, as Executor of Nino Grancaric, Deceased, Appellant; Dinko Grancaric, asAdministrator of the Estate of Nino Grancaric, Deceased,Respondent. |
—[*1] Roemer, Wallens & Mineaux, L.L.P., Albany (Matthew J. Kelly of counsel), forrespondent.
Kane, J. Appeal from a decree of the Surrogate's Court of Rensselaer County (Hummel, S.),entered October 24, 2008, which, among other things, denied probate to an instrumentpurporting to be the last will and testament of decedent.
Respondent, decedent's brother, successfully petitioned for letters of administration a fewmonths after decedent died. Petitioner, decedent's paramour of nearly 30 years, then commencedthis proceeding seeking to admit decedent's purported will to probate. Respondent objected onnumerous grounds. After trial, the jury determined that decedent was of sound mind to dispose ofhis estate by will, but that the will was not executed according to the statutory requirements(see EPTL 3-2.1). Surrogate's Court declined to admit the will to probate. Petitionerappeals.
We affirm. Courts will only strike a jury verdict as against the weight of the evidence [*2]where the proof so preponderated in favor of the unsuccessful partythat the verdict "could not have been reached on any fair interpretation of the evidence"(Lolik v Big V Supermarkets, 86 NY2d 744, 746 [1995] [internal quotation marks andcitations omitted]; see Nolan v UnionColl. Trust of Schenectady, N.Y., 51 AD3d 1253, 1255 [2008], lv denied 11NY3d 705 [2008]). Petitioner presented the testimony of the attorney who supervised the willexecution, as well as the three witnesses who signed the will—petitioner, her sister andher brother-in-law. Petitioner benefitted, on two separate bases, from a presumption that the willwas properly executed: the execution was supervised by an attorney (see Matter ofKindberg, 207 NY 220, 227-228 [1912]; Matter of Leach, 3 AD3d 763, 764 [2004]) and the facts regardingthe execution were contained in a self-proving affidavit signed by two witnesses (see Matter of Pilon, 9 AD3d 771,772 [2004]; Matter of Leach, 3 AD3d at 764-765; Matter of Clapper, 279 AD2d730, 731 [2001]). To rebut this presumption, respondent had to present positive proof that therequirements of execution were not met (see Matter of Pilon, 9 AD3d at 772).Respondent did so through the testimony of a forensic handwriting expert, who explained hiscomparison of the signature on the will to numerous other original documents known to havebeen signed by decedent and opined that the signature on the will was not a genuine signature ofdecedent. The jury was free to accept that expert's testimony and reject the testimony of thesupervising attorney, the three witnesses to the execution and petitioner's handwritingexpert—who merely opined that there were "indications" that decedent was the individualwho signed the will but could not even state with a degree of professional certainty that thesignature was "probably" decedent's writing (see Matter of Sylvestri, 44 NY2d 260,266-267 [1978]). Accordingly, Surrogate's Court appropriately declined to admit the purportedwill to probate.
Cardona, P.J., Peters, Stein and Garry, JJ., concur. Ordered that the decree is affirmed, withcosts.