Kart v. Christie (In re Christie)

• Decision Date: 06 March 2019
• Docket Number: 2016–10950,Index No. 950/15
• Citation: 170 A.D.3d 718,95 N.Y.S.3d 286
• Court: New York Supreme Court — Appellate Division
• Parties: In the MATTER OF Christine E. CHRISTIE, Deceased. Pamela C. Kart, Respondent; v. John Scott Christie, Appellant.

170 A.D.3d 718
95 N.Y.S.3d 286

In the MATTER OF Christine E. CHRISTIE, Deceased.

Pamela C. Kart, Respondent;
v.
John Scott Christie, Appellant.

2016–10950
Index No. 950/15

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

Argued—October 19, 2018
March 6, 2019

95 N.Y.S.3d 287

Frank J. Blangiardo, Riverhead, NY, for appellant.

Esseks, Hefter, Angel, Di Talia & Pasca, LLP, Riverhead, N.Y. (Anthony C. Pasca of counsel), and McNulty–Spiess, P.C., Riverhead, N.Y. (James Spiess of counsel), for respondent (one brief filed).

ALAN D. SCHEINKMAN, P.J., JOHN M. LEVENTHAL, JOSEPH J. MALTESE, VALERIE BRATHWAITE NELSON, JJ.

DECISION & ORDER

170 A.D.3d 719

In a contested probate proceeding, the objectant, John Scott Christie, appeals from a decree of the Surrogate's Court, Suffolk County (John M. Czygier, Jr., S.), dated September 30, 2016. The decree, upon an order of the same court dated September 12, 2016, granting the petitioner's motion for summary judgment dismissing the objections to probate of the last will and testament of the decedent, admitted the will to probate.

ORDERED that the decree is reversed, on the law, with costs, that branch of the petitioner's motion which was for summary judgment dismissing the objection to probate based on lack of due execution is denied, and the order dated September 12, 2016, is modified accordingly.

The decedent died on February 6, 2015, survived by four children, including the petitioner Pamela C. Kart and the objectant John Scott Christie. The petitioner commenced this proceeding to admit to probate a last will and testament dated December 8, 2006. The objectant filed objections to probate on the grounds that the decedent lacked testamentary capacity, the will was not duly executed, and the will was the product of undue influence and fraud on the part of, among others, the petitioner. After discovery was complete, the petitioner moved for summary judgment dismissing the objections to probate. In an order dated September 12, 2016, the Surrogate's Court granted the motion and dismissed the objections. In a decree dated September 30, 2016, the court, upon the order, admitted the will to probate. The objectant appeals.

The granting of summary judgment in a contested probate proceeding is rare (see Matter of Greene, 89 A.D.3d 941, 942–943, 932 N.Y.S.2d 544 ; Matter of Shapiro, 65 A.D.3d 790, 791, 883 N.Y.S.2d 817 ; Matter of Paigo, 53 A.D.3d 836, 838, 863 N.Y.S.2d 508 ; Matter of Grubert, 139 A.D.2d 741, 742, 527 N.Y.S.2d 492 ). 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 Collins, 60 N.Y.2d 466, 468, 470 N.Y.S.2d 338, 458 N.E.2d 797 ;

95 N.Y.S.3d 288

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