| Matter of Doody |
| 2010 NY Slip Op 09302 [79 AD3d 1380] |
| December 16, 2010 |
| Appellate Division, Third Department |
| In the Matter of the Estate of Thomas Doody, Deceased. Carol N. Nash,as Executor of Thomas Doody, Deceased, Respondent; Robert M. Lasky,Appellant. |
—[*1] Fowler Law Office, Troy (Frederick L. Fowler of counsel), for respondent.
Malone Jr., J. Appeal from a decree of the Surrogate's Court of Rensselaer County (Hummel, S.),entered July 15, 2008, which granted petitioner's motion for summary judgment dismissing respondent'sobjections to decedent's will, and admitted the will to probate.
Petitioner commenced this proceeding seeking letters testamentary and probate of a will executedby decedent in 2004. Surrogate's Court ordered the letters, and a notice of probate was issued to thedistributees. Respondent filed objections to probate, alleging, among other things, that decedent lackedtestamentary capacity and that the will was the product of undue influence. Surrogate's Court grantedpetitioner's motion for summary judgment dismissing the objections and admitting the will to probate.Respondent appeals.
Before a will is admitted to probate, Surrogate's Court must be satisfied that it was validly executed(see SCPA 1408). Here, petitioner made a prima facie showing that the will was validlyexecuted because it was executed under the supervision of an attorney (see Matter of Halpern, 76 AD3d 429,431 [2010]; Matter of Scaccia, 66AD3d 1247, 1250 [2009]) and contained a valid attestation clause (see Matter of Paigo, 53 AD3d 836,838 [2008]). The burden [*2]thus shifted to respondent to raise amaterial issue of fact. In that regard, respondent alleged that decedent was not of sound mind at thetime the will was executed. However, contrary to respondent's contention, an independent medicalreport is not required to establish that decedent had testamentary capacity. The affidavit of the attestingwitnesses "stating that decedent was sound in mind and memory and in all respects competent to makea will created a presumption of testamentary capacity," and respondent offered no evidence to rebutthat presumption (Matter of Scaccia, 66 AD3d at 1251; see Matter of Nofal, 35 AD3d 1132, 1133 [2006]). Moreover,respondent's conclusory allegations, unsupported by any proof, are insufficient to establish that the willwas the product of fraud or acts of undue influence on the part of petitioner (see Matter of Turner, 56 AD3d 863,865-866 [2008]; Matter of Colverd, 52AD3d 971, 972-973 [2008]). Accordingly, Surrogate's Court did not abuse its discretion bygranting petitioner's motion for summary judgment (see Matter of Colverd, 52 AD3d at972-973).
We are not persuaded by respondent's remaining contentions, including his claim that he wasdenied a fair hearing by Surrogate's Court.
Cardona, P.J., Rose, Lahtinen and McCarthy, JJ., concur. Ordered that the decree is affirmed,without costs.