Dzie v. Sundmacher (In re Sundmacher)

• Decision Date: 17 March 2021
• Docket Number: 2018–00341, 2018–00343,File No. 373827/13
• Citation: 144 N.Y.S.3d 742,192 A.D.3d 898
• Parties: In the MATTER OF Helen SUNDMACHER, deceased. Leck Dzie, respondent; v. Robert Sundmacher, et al., appellants.
• Court: New York Supreme Court — Appellate Division

192 A.D.3d 898

144 N.Y.S.3d 742

In the MATTER OF Helen SUNDMACHER, deceased.

Leck Dzie, respondent;

v.Robert Sundmacher, et al., appellants.

2018–00341, 2018–00343

File No. 373827/13

Supreme Court, Appellate Division, Second Department, New York.

Argued - January 5, 2021

March 17, 2021

James D. Reddy, P.C., Lindenhurst, NY, for appellants.

Law Offices of Daniel J. Costello, P.C., Garden City, NY, for respondent.

CHERYL E. CHAMBERS, J.P., ROBERT J. MILLER, COLLEEN D. DUFFY, LINDA CHRISTOPHER, JJ.

DECISION & ORDER

In a contested probate proceeding, the objectants appeal from (1) an order of the Surrogate's Court, Nassau County (Margaret C. Reilly, S.), dated May 15, 2017, and (2) a decree of the same court dated June 20, 2017. The order granted the petitioner's motion for summary judgment dismissing the objections to probate of the last will and testament of the decedent. The decree admitted the will to probate.

ORDERED that the appeal from the order is dismissed; and it is further,

ORDERED that the decree is affirmed; and it is further,

ORDERED that one bill of costs is awarded to the petitioner.

On December 20, 2010, Helen Sundmacher (hereinafter the decedent) executed her last will and testament under the supervision of an attorney. The will bequeathed her entire estate to the petitioner. Following the decedent's death, the petitioner commenced this proceeding to admit the will to probate, and the decedent's son, Robert Sundmacher, and her nephew, Richard Jackonski, filed objections to probate. After discovery was completed, the petitioner moved for summary judgment dismissing the objections to probate. The Surrogate's Court granted the motion and admitted the will to probate. The objectants appeal.

In a contested probate proceeding, summary judgment is appropriate where a petitioner establishes a prima facie case for probate and the objectant fails to raise a triable issue of fact concerning the validity of the will (see Matter of Sabatelli, 161 A.D.3d 872, 76 N.Y.S.3d 207 ; Matter of Moskowitz, 116 A.D.3d 958, 983 N.Y.S.2d 811 ).

The proponent of a will has the burden of proving that the propounded instrument was duly executed in conformance with the statutory requirements (see EPTL 3–2.1[a] ; Matter of Martinico, 177 A.D.3d 882, 883, 113 N.Y.S.3d 722 ). Where the will is drafted by an attorney and the drafting attorney supervises the will's execution, there is a presumption of regularity that the will was properly executed in all respects (see Matter of Sabatelli, 161 A.D.3d at 873–874, 76 N.Y.S.3d 207 ; Matter of Moskowitz, 116 A.D.3d at 959, 983 N.Y.S.2d 811 ). Additionally, where the propounded will is accompanied by an attestation clause and a self-proving affidavit, a presumption of compliance with the statutory requirements arises (see Matter of Mele, 113 A.D.3d 858, 859, 979 N.Y.S.2d 403 ).

Here, the petitioner demonstrated his prima facie entitlement to judgment as a matter of law dismissing the objections alleging lack of due execution through, inter alia, the will, which contains an executed attestation clause and is accompanied by a self-proving affidavit; the transcript of the deposition testimony of the attorney-drafter; and the transcripts of the deposition testimony of the attesting witnesses (see Matter of Sabatelli, 161 A.D.3d at 874, 76 N.Y.S.3d 207 ; Matter of Templeton, 116 A.D.3d 781, 983 N.Y.S.2d 610 ). In opposition to the prima facie showing, the objectants failed to raise a triable issue of fact (see Matter of Collins, 60 N.Y.2d 466, 470–472, 470 N.Y.S.2d 338, 458 N.E.2d 797 ). Accordingly, the Surrogate's Court properly granted that branch of the petitioner's motion which was for summary judgment dismissing the objections alleging lack of due execution.

Additionally, a proponent of a will bears the initial burden of establishing that the decedent understood the nature and consequences of making the will, the nature and extent of his or her property, and the recipients of his or her bounty (see Matter of Kumstar, 66 N.Y.2d 691, 692, 496 N.Y.S.2d 414, 487 N.E.2d 271 ). In this case, the self-proving affidavit of the attesting witnesses, in which each witness declared...