In re Will of Halpern

• Decision Date: 17 August 2010
• Citation: 76 A.D.3d 429,906 N.Y.S.2d 253
• Parties: In re Probate Proceeding, WILL OF Seymour HALPERN, etc., Deceased. Adrienne Halpern, et al., Petitioners-Respondents, v. Elizabeth Halpern, Respondent-Objectant-Appellant.
• Court: New York Supreme Court — Appellate Division

906 N.Y.S.2d 253

76 A.D.3d 429

In re Probate Proceeding, WILL OF Seymour HALPERN, etc., Deceased.Adrienne Halpern, et al., Petitioners-Respondents,

v.Elizabeth Halpern, Respondent-Objectant-Appellant.

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

Aug. 17, 2010.

Charles Shabsels, New York (Harry L. Klein of counsel), for appellant.

Cleary Gottlieb Steen & Hamilton LLP, New York (Christopher P. Moore of counsel), for respondents.

GONZALEZ, P.J., SAXE, McGUIRE, ACOSTA, ROMÁN, JJ.

Decree ¹, Surrogate's Court, New York County (Kristin Booth Glen, S.), entered on or about June 23, 2008, which, inter alia, admitted the document dated September 12, 1958 to probate as the last will and testament of Seymour Halpern, a/k/a Seymour Lionel Halpern, affirmed, without costs.

The decedent, Seymour Halpern, a physician, married his first wife Anafred in 1953. On September 12, 1958, he purportedly executed a document that petitioners, his daughters, seek to probate as his will. Anafred died in 1981, and in 1988, the decedent married his second wife Elizabeth (the objectant). On June 7, 2006, Seymour died, leaving an estate valued at approximately $28 million. At the time of his death, his family believed he died intestate, but two months after her husband's death, Elizabeth found an almost 50-year-old four-page document in their home. The decedent's children now seek to have that document probated as his will.

Three witnesses signed the will. Harry Grayer, Esq., Barbara Sammons, and Mary Ann Schuder. Grayer was the decedent's attorney. There is an invoice from Grayer in the record, dated September 12, 1958, the day the will was executed, charging Seymour for "professional services rendered" "Re: Preparation of Will, etc." The two other witnesses, Sammons and Schuder, worked in the decedent's medical office at the time the will was signed. All three of the witnesses' signatures appear at the end of the will, underneath an attestation clause, which recites:

"The above instrument was on the 12th day of September, 1958 in the Borough of Manhattan, County, City and State of New York, subscribed by SEYMOUR LIONEL HALPERN, the Testator above named in the presence of us and of each of us, and at the same time and place, the above instrument was published and declared by the said Testator to be his Last Will and Testament and thereupon each of us at the request of the said Testator and in his presence and in the presence of each other have hereunto signed our names as witnesses thereto, and wrote the places of our respective residences alongside our names."

The will made a number of minor bequests to relatives and charitable organizations. With the exception of those bequests, Anafred and Adrienne, Seymour's eldest daughter, and his only child born before 1958), were the sole beneficiaries under the will, with a provision made for any after-born children. Seymour and Anafred subsequently had a second daughter and a son, Vivienne and Ronald.

In the fall of 2006, Adrienne and Vivienne (the proponents) submitted a petition for admission of the will to probate. OnJune 29, 2007, Ms. Sammons, the only surviving attesting witness, was deposed. The deposition lasted 45 minutes. Ms. Sammons, who was 69 years old, testified that she recognized her signature at the end of the will and that she remembered livingat the address listed next to her signature in 1958. However, she also testified, more than 15 times, in response to a variety of questions, that she had no memory of the events of September 12, 1958, because they occurred 50 years before the deposition. Handwriting experts authenticated decedent's signature at the end of the will, as well as that of his attorney, Mr. Grayer.

On July 17, 2007, Elizabeth filed objections to probate, asserting that the will was not duly executed. The proponents moved for summary judgment to admit the will to probate, and the objectant cross-moved for summary judgment as well. The court held a hearing and concluded that there was no material issue of fact as to the due execution of the will. The objectant appeals from the decree admitting the will to probate.

Before admitting a will to probate, Surrogate's Court must be satisfied that the execution of the will was valid ( see SCPA 1408; Matter of Pirozzi, 238 A.D.2d 833, 834, 657 N.Y.S.2d 112 [1997] ). The proponent has the burden of demonstrating, by a preponderance of the evidence, that a purported will was duly executed ( id.; Matter of Falk, 47 A.D.3d 21, 25, 845 N.Y.S.2d 287 [2007], lv. denied 10 N.Y.3d 702, 854 N.Y.S.2d 103, 883 N.E.2d 1010 [2008] ). If an attorney-drafter supervises the execution of a will, there is a presumption of regularity that the will was properly executed ( see Matter of Moskoff, 41 A.D.3d 481, 482, 836 N.Y.S.2d 708 [2007]; Matter of Tuccio, 38 A.D.3d 791, 791, 832 N.Y.S.2d 609 [2007], lv. denied 9 N.Y.3d 802, 840 N.Y.S.2d 567, 872 N.E.2d 253 [2007]; Matter of James, 17 A.D.3d 366, 367, 792 N.Y.S.2d 601 [2005]; Matter of Seelig, 302 A.D.2d 721, 722, 756 N.Y.S.2d 305 [2003] ). In addition, a valid attestation clause raises a presumption of a will's validity, although it is nonetheless incumbent upon Surrogate's Court to examine all of the circumstances surrounding the execution of the document in order to ascertain its validity ( see Falk, 47 A.D.3d at 26, 845 N.Y.S.2d 287, citing, inter alia, Matter of Collins, 60 N.Y.2d 466, 471, 470 N.Y.S.2d 338, 458 N.E.2d 797 [1983] ). The determination whether to dismiss objections and admit a will to probate is within the discretion of Surrogate's Court, and its determination will not be overturned absent a showing of an abuse thereof ( Matter of Colverd, 52 A.D.3d 971, 972, 860 N.Y.S.2d 254 [2008] ).

In 1958, when the instant will was purportedly executed, Decedent Estate Law § 21 governed. That section provided:

"Every last will and testament of real or personal property, or both, shall be executed and attested in the following manner:

1. It shall be subscribed by the testator at the end of the will.

2. Such subscription shall be made by the testator in the presence of each of the attesting witnesses, or shall be acknowledged by him, to have been so made, to each of the attesting witnesses.

3. The testator, at the time of making such subscription, or at the time of acknowledging the same, shall declare the instrument so subscribed, to be his last will and testament.

4. There shall be at least two attesting witnesses, each of whom shall sign his name as a witness, at the end ofthe will, at the request of the testator."

Here, Dr. Halpern signed the will at the end of the document (Decedent Estate Law § 21[1] ). An attestation clause states that he did so in the presence of three attesting witnesses (Decedent Estate Law § 21[2] ). This clause also states that Dr. Halpern declared the document to be his last will and testament (Decedent Estate Law § 21[3] ). Mr. Grayer, the decedent's lawyer, prepared the will, served as an attesting witness, and billed the decedent, on the date of the execution of the instrument, for services rendered with respect to its "Preparation ... etc." ( see Seelig, 302 A.D.2d at 722, 756 N.Y.S.2d 305, supra [attorney's presence at signing of will constituted prima facie evidence of will's due execution] ). The cover page of the will also contained Mr. Grayer's letterhead. Ms. Sammons identified her signature and address on the document, and a handwriting expert verified the signatures of the decedent and Mr. Grayer (Decedent Estate Law § 21[4] ).

Thus, Surrogate's Court correctly concluded that the proponents demonstrated a prima facie showing of due execution of the will, as it contained a valid attestation clause ( see Matter of Collins, 60 N.Y.2d 466, 471, 470 N.Y.S.2d 338, 458 N.E.2d 797 [1983]; Falk, supra at 26, 845 N.Y.S.2d 287), and was executed under an attorney's supervision ( Matter of Leach, 3 A.D.3d 763, 764, 772 N.Y.S.2d 100 [2004]; Matter of Seelig, supra ), despite the fact that the sole surviving witness, Ms. Sammons, testified that she did not remember the will's execution ( see Collins 60 N.Y.2d at 470-472, 470 N.Y.S.2d 338, 458 N.E.2d 797; Matter of Korn, 25 A.D.3d 379, 379, 808 N.Y.S.2d 48 [2006]; Matter of James, 17 A.D.3d 366, 367, 792 N.Y.S.2d 601 [2005] ).

Upon the presumption of due execution, the burden then shifted to the objectant to produce evidentiary proof in admissible form to rebut the presumption and raise a material issue of fact ( Seelig, 302 A.D.2d at 722, 756 N.Y.S.2d 305).

It is the dissent's position that a trier of fact could reasonably infer, from the sole surviving witness's deposition testimony, that the formalities set forth in the attestation clause had never taken place. However, the excerpts from her EBT relied on by the dissent, read in context, can also be interpreted as testifying that she could not confirm the statements made in the attestation clause because she didn't remember an event almost 50 years earlier, when she was approximately 20 years old.

The dissent relies on Lewis v. Lewis, 11 N.Y. 220 [1854] and Matter of Pulvermacher, 305 N.Y. 378, 113 N.E.2d 525 [1953], in support of its contention that the requisite formalities were not followed here. Both Lewis and Pulvermacher are distinguishable on their facts. In Lewis, the proponents sought to probate a will less than two years after it was drafted. Both attesting witnesses in Lewis were deposed. The first testified that the decedent handed him a folded a paper and asked him to sign his name and address. This witness did not see the body of the document,² AND THE DECEDENt incorrectly declared it to be his "free will and deed" ( id. at 222). The other subscribing witness also testified that the document was folded; he did not know what he was signing when he placed his signature on the purported will; and that he did not rememberthe decedent signing the document in his presence ( id. at 222). Upon this record, the Court of Appeals concluded that...