In re Costello
| Decision Date | 24 February 2016 |
| Citation | 26 N.Y.S.3d 545,136 A.D.3d 1028 |
| Parties | In the Matter of George David COSTELLO, Sr., also known as George D. Costello, Sr., deceased. Iona Costello, petitioner-appellant; Amanda Hurwitz, et al., objectants-respondents. |
| Court | New York Supreme Court — Appellate Division |
Wickham, Bressler & Geasa, P.C., Mattituck, N.Y. (Eric J. Bressler of counsel), for petitioner-appellant.
Novick & Associates, P.C., Huntington, N.Y. (Albert V. Messina, Jr., of counsel), for objectants-respondents.
REINALDO E. RIVERA, J.P., MARK C. DILLON, SHERI S. ROMAN, and COLLEEN D. DUFFY, JJ.
In a contested probate proceeding, the petitioner appeals from an order of the Surrogate's Court, Suffolk County (Czygier, Jr., S.), entered March 4, 2014, which granted the motion of the objectants Amanda Hurwitz and Gretchen Aquanita for summary judgment dismissing the probate petition.
ORDERED that the order is affirmed, with costs.
In order for a will to be admitted to probate, "it must be established that all the writing formed a single instrument which the [testator] subscribed and ... published as [his or her] will in the presence of the attesting witnesses" (Matter of Allen, 282 N.Y. 492, 496, 27 N.E.2d 22 ). "[I]f a testator desires to execute as a will or codicil several sheets of paper they must be all present at the time of execution" (Matter of Dake, 75 App.Div. 403, 410, 78 N.Y.S. 29 ).
" ‘A valid attestation clause raises a presumption of a will's validity, [but] it is nonetheless incumbent upon [the] Surrogate's Court to examine all of the circumstances surrounding the execution of the document in order to ascertain its validity’ " (Matter of Lewis, 114 A.D.3d 203, 212, 978 N.Y.S.2d 527, mod. 25 N.Y.3d 456, 13 N.Y.S.3d 323, 34 N.E.3d 833, quoting Matter of Halpern, 76 A.D.3d 429, 431, 906 N.Y.S.2d 253, affd. 16 N.Y.3d 777, 919 N.Y.S.2d 503, 944 N.E.2d 1142 ; see Matter of Templeton, 116 A.D.3d 781, 781–782, 983 N.Y.S.2d 610 ; Matter of Mele, 113 A.D.3d 858, 860, 979 N.Y.S.2d 403 ). In conducting this examination, " ‘the testimony of the attesting witnesses is entitled to great weight’ " (Matter of Yen, 127 A.D.3d 1466, 1467, 8 N.Y.S.3d 456, quoting Matter of Collins, 60 N.Y.2d 466, 473, 470 N.Y.S.2d 338, 458 N.E.2d 797 ; see Matter of Falk, 47 A.D.3d 21, 26, 845 N.Y.S.2d 287 ).
Here, the attesting witnesses both testified at their depositions that they did not read the attestation clause. Under these circumstances, the attestation clause cannot carry any presumption that the will was properly executed (see Woolley v. Woolley, 95 N.Y. 231, 236 ; Matter of Malley, 6 Misc.2d 31, 32, 159 N.Y.S.2d 1011 [Sur.Ct., Westchester County] ; Matter of King, 130 Misc. 907, 911, 225 N.Y.S. 536 [Sur.Ct., Schoharie County] ; Matter of Hitchler, 25 Misc. 365, 367, 55 N.Y.S. 642 [Sur.Ct., Erie County] ). The moving objectants met their prima facie burden of establishing that the purported will was not properly executed by submitting evidence that not all of the pages of the document alleged to be the decedent's will were present at the time of the purported execution (see Matter of Yen, 127 A.D.3d at 1468, 8 N.Y.S.3d 456 ; cf. Matter of Shapiro, 65 A.D.3d 790, 791, 883 N.Y.S.2d 817 ; Matter of Ruso, 212 A.D.2d 846, 846–847, 622 N.Y.S.2d 137 ). In opposition, the petitioner failed to raise a triable issue of fact (see Matter of Yen, 127 A.D.3d at 1468, 8 N.Y.S.3d 456 ; cf. Matter of Ruso, 212 A.D.2d at 846–847, 622 N.Y.S.2d 137 ). Contrary to the petitioner's contention, the evidence regarding the testamentary intent of the decedent does not raise a triable issue of fact because, with respect to due execution, " ‘courts do not consider the intention of the testator, but that of the legislature,’ " such that the statutory requirements of due execution are determinative (Matter of...
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