In re the Est. of Korn, 25 A.D.3d 379 (N.Y. App. Div. 2006). · Go Syfert
Search
In re the Est. of Korn, 25 A.D.3d 379 (N.Y. App. Div. 2006). Cases Citing This Book View Copy Cite
17 citation events (17 in the last 25 years) across 2 distinct courts.
Strongest positive: Matter of Neumann (nyappdiv, 2024-10-15)
Top citers, strongest first. 10 distinct citers. How cited ↗
discussed Cited as authority (rule) Matter of Neumann
N.Y. App. Div. · 2024 · confidence medium
The attorney-drafter provided a rational explanation for the distribution provided in the will and testified to decedent's intelligence and determination to have the will reflect her desires, despite her physical infirmities ( see Matter of Korn , 25 AD3d 379, 380 [1st Dept 2006]).
discussed Cited as authority (rule) Matter of Shapiro (2×) also: Cited "see"
N.Y. Surr. Ct., New York Cty. · 2024 · confidence medium
Discussion The standards for summary judgment arc well established and require movant to make a 3 [* 3] prima facie showing of entitlement to judgment as a matter of law (see Matter of Korn, 25 AD3d 379,379 [1st Dept 2006], citing Matter o_[Seelig, 13 AD3d 776, 777 [3d Dept 2004], Iv. denied 4 NY3d 707 [20051).
discussed Cited as authority (rule) Matter of Syms
N.Y. Surr. Ct., New York Cty. · 2024 · confidence medium
The court found that Proponent made her prima facie case based on the presumption of due execution that arises where, as here, an attorney supervised the instrument's execution (see Matter of Halpern, 76 AD3d 429 ,431 [1st Dept 2010], affd 16 NY3d 777 [2011]), the instrument's attestation clause, which serves as prima facie evidence that the will was duly executed (see Matter of Collins, 60 NY2d 466,471 [1983]; Matter of Falk, 47 AD3d 21, 26 [1st Dept 2007]), and the SCP A 1406 Affidavit, which courts also consider "prima facie evidence of the facts therein attested to by the witnesses" (Matte…
discussed Cited as authority (rule) Matter of Luther
N.Y. Surr. Ct., New York Cty. · 2024 · confidence medium
Here, Schulze has met his initial burden by submitting a copy of the instrument together with the self-proving affidavits and the testimony of the attesting witnesses, which prove that decedent understood the terms of the will, that the instrument reflected decedent's wishes and that it was not executed under restraint (Matter of Korn, 25 AD3d 379, 379 [1st Dept 2006] [self- executing affidavit and testimony of attesting witness and drafting attorney were sufficient to meet proponent's prima facie burden that decedent was free of undue influence]).
discussed Cited as authority (rule) In re the Estate of Halpern
N.Y. App. Div. · 2010 · confidence medium
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 NY2d 466, 471 [1983]; Falk, 47 AD3d at 26 ), and was executed under an attorney’s supervision (Matter of Leach, 3 AD3d 763, 764 [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 NY2d at 470-472 ; Matter of Korn, 25 AD3d 379, 379 [2006]; Matter of James, 17 AD3d 366, 367 [20…
discussed Cited as authority (rule) In re Schlaeger
N.Y. App. Div. · 2010 · confidence medium
Proponent met his burden of establishing the decedent’s testamentary capacity with the self-proving affidavit of the attesting witnesses stating that the decedent was of “sound mind, memory and understanding” and was not incompetent (Matter of Friedman, 26 AD3d 723, 725 [2006], lv denied 7 NY3d 711 [2006]; Matter of Korn, 25 AD3d 379, 379 [2006]; Matter of Clapper, 279 AD2d 730, 731 [2001]).
discussed Cited as authority (rule) In re the Estate of James
N.Y. App. Div. · 2009 · confidence medium
The objectants’ contention that the missing beneficiary, who was a child when the will was executed, has information relevant to this matter is purely speculative (see Matter of Korn, 25 AD3d 379, 380 [2006]; Matter of Leach, 3 AD3d at 766 ; Matter of Wilson, 266 AD2d 164 [1999]; Friend v Regina, 189 AD2d 853 [1993]).
discussed Cited as authority (rule) In re the Estate of de Heredia Ryan
N.Y. App. Div. · 2006 · confidence medium
As this Court observed recently, the evidence must permit an inference that “the decedent was so dependent upon and subject to [the alleged influencer’s] control that she could not resist the wielding of his influence” (Matter of Korn, 25 AD3d 379, 380 [2006]).
discussed Cited "see" Matter of Estate of Mielty (Mielty)
N.Y. App. Div. · 2026 · signal: see · confidence high
In order to rebut this presumption, there must be positive proof that the formal requirements of execution were not met" ( Pilon , 9 AD3d at 772 [emphasis added]; see Matter of Korn , 25 AD3d 379, 379 [1st Dept 2006]).
discussed Cited "see" Matter of Buschor (Moravec)
N.Y. Surr. Ct., New York Cty. · 2024 · signal: see · confidence high
Proponent also made a prima facie showing of decedent's testamentary capacity through the contemporaneous affidavit of the attesting witnesses, their attestation clause and their SCP A 1404 examination testimony, all of which establish that decedent was of "sound mind, memory and understanding" when she executed the instrument (Matter of West, 147 AD3d 592, 592 [1st Dept 2017]; see Matter of Korn, 25 AD3d 379 [1st Dept 2006]), and that decedent could hold in her mind the nature and extent of her assets, was capable of knowing who her relations were, that is, those who would be considered the n…
Retrieving the full opinion text from the archive…
In the Matter of the Estate of Edith R. Korn, Edward D. Korn, Respondent Robert B. Korn
Appellate Division of the Supreme Court of the State of New York.
Jan 10, 2006.
25 A.D.3d 379
Cited by 12 opinions  |  Published

Decree, Surrogate’s Court, New York County (Eve Preminger, S.), entered on or about September 28, 2004, which admitted decedent’s will to probate and granted letters testamentary to petitioner, unanimously affirmed, without costs.

The decree referred to an earlier order which had granted petitioner’s motion for summary judgment dismissing objections to probate. Summary judgment is appropriate where, as here, the proponent establishes a prima facie case for probate and the objectant fails to raise a material triable issue of fact (Matter of Seelig, 13 AD3d 776 [2004], lv denied 4 NY3d 707 [2005]). Not only did petitioner produce a self-executing affidavit to the will, thereby creating a presumption that the will was duly executed and constituting prima facie evidence of the facts therein attested to by the witnesses (see Matter of Clapper, 279 AD2d 730, 731 [2001]), but he also adduced testimony of an attesting witness and of the drafting attorney stating that the decedent was free of undue influence and, inter alia, “bright, intelligent, strong-minded.”

In response, the objectant submitted only conclusory and[*380] speculative evidence that petitioner exercised undue influence over the decedent in drafting and executing her will; this failed to raise a triable issue of fact (Matter of Bustanoby, 262 AD2d 407 [1999]). There was no evidence that petitioner had any direct involvement in the preparation or execution of the will (see Matter of Bartel, 214 AD2d 476 [1995]).

Insofar as the objectant insists that summary judgment was improper without permitting him to continue discovery, this claim is undermined by his failure to move for additional discovery or to seek a continuation so he could procure necessary affidavits. Nor does the objectant cite any statute or rule requiring a court to set a time limit for the completion of discovery. In any event, further discovery would serve no purpose. Even if the objectant could show that petitioner was responsible for the notations on an earlier draft will and played a role in the drafting of the final will, this would still not raise a question of fact as to whether the decedent was so dependent upon and subject to petitioner’s control that she could not resist the wielding of his influence (Matter of Wilson, 266 AD2d 164 [1999]; see generally Matter of Anna, 248 NY 421 [1928]). Concur—Mazzarelli, J.P., Friedman, Williams, Gonzalez and Sweeny, JJ.