Grubert, Matter of

• Decision Date: 25 April 1988
• Citation: 139 A.D.2d 741,527 N.Y.S.2d 492
• Parties: In the Matter of Carol E. GRUBERT, deceased. Elizabeth Bouwense, Appellant; Karen Sepre, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 492

527 N.Y.S.2d 492

139 A.D.2d 741

In the Matter of Carol E. GRUBERT, deceased.

Elizabeth Bouwense, Appellant;

Karen Sepre, Respondent.

Supreme Court, Appellate Division,

Second Department.

April 25, 1988.

Hogan & Hogan, Garden City, for appellant.

Before KUNZEMAN, J.P., and RUBIN, EIBER and SULLIVAN, JJ.

MEMORANDUM BY THE COURT.

In a probate proceeding, the objectant appeals, as limited by her brief, from so much of an order of the Surrogate's Court, Suffolk County (Copertino, S.), entered August 13, 1986, as denied her motion for summary judgment disallowing probate of the will.

ORDERED that the order is affirmed insofar as appealed from, without costs or disbursements.

Although an objectant in a proceeding in the Surrogate's Court may invoke the provisions for summary judgment (Matter of Pascal, 309 N.Y. 108, 127 N.E.2d 835), the granting of such relief is rare ( Matter of Rounds, 47 Misc.2d 877, 263 N.Y.S.2d 379). We find that a question of fact exists in this case as to whether the attorney draftsman merely guided the physically infirm testatrix's hand when she executed her will or whether he actually signed the will in her stead. The resolution of this issue is necessary before a determination can be made as to whether the document may be admitted to probate (see, EPTL 3-2.1; Rohan, Practice Commentary, McKinney's Cons.Laws of N.Y., Book 17B, EPTL 3-2.1, at 327; Matter of Kearney, 69 App.Div. 481, 74 N.Y.S. 1045; Matter of Bitzer, 124 Misc. 432, 208 N.Y.S. 824; cf., Matter of Helgesen, 80 Misc.2d 726, 363 N.Y.S.2d 796).