In re Est. of Castiglione, 40 A.D.3d 1227 (N.Y. App. Div. 2007). · Go Syfert
In re Est. of Castiglione, 40 A.D.3d 1227 (N.Y. App. Div. 2007). Cases Citing This Book View Copy Cite
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cited 3× by 3 distinct cases · …because he wanted to be of clear mind, at p. 1228 ⚠ not in text
62 citation events (62 in the last 25 years) across 3 distinct courts.
Strongest positive: Matter of Agiovlasitis (nysurctnyc, 2025-10-30)
Treatment trajectory · 2008 → 2026 · click a year to view as-of
2008 2017 2026
Top citers, strongest first. 26 distinct citers. How cited ↗
discussed Cited as authority (rule) Matter of Agiovlasitis
N.Y. Surr. Ct., New York Cty. · 2025 · confidence medium
Matter of Castiglione, 40 AD3d 1227, 1229 [3d Dept 2007] [lost will was properly admitted to probate under SCP A 1407 where, inter alia, petitioner "offered a signed photocopy of the will, along with a sworn statement by [the attorney-draftsperson] that this copy was an exact replica of the original will"]).
discussed Cited as authority (rule) Matter of Lobuono
N.Y. Surr. Ct., Bronx, Cty. · 2025 · confidence medium
A copy of a lost or destroyed will may be admitted to probate where: (1) it is established that the will has not been revoked; (2) execution of the instrument is proved in the manner required for the probate of an existing will; and (3) all of the will's provisions are clearly and distinctly proved by each of at least two credible witnesses or by a copy or draft of the will proved to be true and complete (see SCPA 1407; see also Matter of McKenna, 213 AD3d 765 , 766 [2d Dept 202 3], citing In re Estate of DiSiena, 103 AD3d 1077 , 1078 [3d Dept 2013]; Matter of Castiglione, 40 AD3d 1227, 1229 […
discussed Cited as authority (rule) Matter of Slezak
N.Y. App. Div. · 2023 · confidence medium
Although petitioner tendered a conformed copy of decedent's will, there was no other proof from the hearing confirming that the conformed copy was identical to decedent's original will ( compare Matter of Castiglione , 40 AD3d 1227, 1229 [3d Dept 2007], lv denied 9 NY3d 806 [2007]; Matter of Kalenak , 182 AD2d 1124, 1124 [2d Dept 1992]).
discussed Cited as authority (rule) Matter of Burrows
N.Y. App. Div. · 2022 · confidence medium
"It is the indisputable rule in a will contest that '[t]he proponent has the burden of proving that the testator possessed testamentary capacity and the [Surrogate] must look to the following factors: (1) whether [the testator] understood the nature and consequences of executing a will; (2) whether [he] knew the nature and extent of the property [he] was disposing of; and (3) whether [he] knew those who would be considered the natural objects of [his] bounty and [his] relations with them' " ( Matter of Kumstar , 66 NY2d 691, 692 [1985], rearg denied 67 NY2d 647 [1986]; see Matter of Alibrandi …
discussed Cited as authority (rule) Matter of Bordell
N.Y. App. Div. · 2018 · confidence medium
Absent any evidence that the wife was not competent at the time she executed the waiver of the right of election, Surrogate's Court properly granted summary judgment in petitioner's favor ( see Matter of Nealon , 57 AD3d at 1327 ; Matter of Murray , 49 AD3d at 1005 ; Sears v First Pioneer Farm Credit, ACA , 46 AD3d at 1285 ; Matter of Castiglione , 40 AD3d 1227, 1228 [2007], lv denied 9 NY3d 806 [2007]).
discussed Cited as authority (rule) Matter of Scollan
N.Y. App. Div. · 2018 · confidence medium
In addition, petitioner's own submissions established that decedent asked to retain the original will in her possession, and the attorney who drafted the will had the original delivered to decedent shortly after its execution ( cf. Matter of Castiglione , 40 AD3d 1227, 1229 [3d Dept 2007], lv denied 9 NY3d 806 [2007]).
discussed Cited as authority (rule) MatterofPrevratil
N.Y. App. Div. · 2014 · confidence medium
Lacking any proof that decedent was not rational, lucid or competent at the time he executed the will, Surrogate's Court properly granted summary judgment dismissing this objection (see Matter of Castiglione, 40 AD3d 1227, 1228 [2007], lv denied 9 NY3d 806 [2007]; Matter of Seelig, 13 AD3d 776, 777 [2004], lv denied 4 NY3d 707 [2005]). -5- 517693 Neil Prevratil also argues that decedent's will was the product of undue influence on the part of Deborha Prevratil and the proponents.
discussed Cited as authority (rule) In re the Estate of Prevratil
N.Y. App. Div. · 2014 · confidence medium
Lacking any proof that decedent was not rational, lucid or competent at the time he executed the will, Surrogate’s Court properly granted summary judgment dismissing this objection (see Matter of Castiglione, 40 AD3d 1227, 1228 [2007], lv denied 9 NY3d 806 [2007]; Matter of Seelig, 13 AD3d 776, 777 [2004], lv denied 4 NY3d 707 [2005]).
discussed Cited as authority (rule) In re the Estate of Prevratil
N.Y. App. Div. · 2014 · confidence medium
Lacking any proof that decedent was not rational, lucid or competent at the time he executed the will, Surrogate’s Court properly granted summary judgment dismissing this objection (see Matter of Castiglione, 40 AD3d 1227, 1228 [2007], lv denied 9 NY3d 806 [2007]; Matter of Seelig, 13 AD3d 776, 777 [2004], lv denied 4 NY3d 707 [2005]).
discussed Cited as authority (rule) In re the Estate of Stafford
N.Y. App. Div. · 2013 · confidence medium
To establish undue influence, respondents were required to demonstrate that decedent “was actually constrained to act against [her] own free will and desire by identifying the motive, opportunity and acts allegedly constituting the influence, as well as when and where such acts occurred” (id. at 973 [internal quotation marks and citation omitted]; see Matter of Alibrandi, 104 AD3d 1175 , 1177-1178 [2013]; Matter of Greenwald, 47 AD3d 1036, 1037 [2008]; Matter of Castiglione, 40 AD3d 1227, 1229 [2007], lv denied 9 NY3d 806 [2007]; Matter of Fellows, 16 AD3d 995, 996 [2005]).
discussed Cited as authority (rule) In re the Estate of Stafford
N.Y. App. Div. · 2013 · confidence medium
To establish undue influence, respondents were required to demonstrate that decedent “was actually constrained to act against [her] own free will and desire by identifying the motive, opportunity and acts allegedly constituting the influence, as well as when and where such acts occurred” (id. at 973 [internal quotation marks and citation omitted]; see Matter of Alibrandi, 104 AD3d 1175 , 1177-1178 [2013]; Matter of Greenwald, 47 AD3d 1036, 1037 [2008]; Matter of Castiglione, 40 AD3d 1227, 1229 [2007], lv denied 9 NY3d 806 [2007]; Matter of Fellows, 16 AD3d 995, 996 [2005]).
cited Cited as authority (rule) In re the Estate of Buchting
N.Y. App. Div. · 2013 · confidence medium
Matter of Castiglione, 40 AD3d 1227, 1229 [2007], lv denied 9 NY3d 806 [2007]) and is premature lacking discovery.
cited Cited as authority (rule) In re the Estate of Buchting
N.Y. App. Div. · 2013 · confidence medium
Matter of Castiglione, 40 AD3d 1227, 1229 [2007], lv denied 9 NY3d 806 [2007]) and is premature lacking discovery.
discussed Cited as authority (rule) In re Williams
N.Y. App. Div. · 2012 · confidence medium
The petitioner made a prima facie showing that the propounded will was duly executed pursuant to EPTL 3-2.1 by submitting, inter alia, the will, which contains an executed attestation clause, and the affidavits of the attesting witnesses (see Matter of Farrell, 84 AD3d 1374 [2011]; Matter of Murray, 84 AD3d 106, 115 [2011]; Matter of Mooney, 74 AD3d 1073, 1074 [2010]; Matter of Schlaeger, 74 AD3d 405, 407 [2010]; Matter of Castiglione, 40 AD3d 1227, 1228-1229 [2007]).
discussed Cited as authority (rule) In re Farrell
N.Y. App. Div. · 2011 · confidence medium
The attestation clause and self-proving affidavit accompanying the propounded will also give rise to a presumption of compliance with the statutory requirements (see Matter of Collins, 60 NY2d 466, 471 [1983]; Matter of Schlaeger, 74 AD3d at 407; Matter of Malan, 56 AD3d 479 [2008]; Matter of Castiglione, 40 AD3d 1227, 1228 [2007]; Matter of Moskoff,of Moskoff, 41 AD3d at 482 ).
discussed Cited as authority (rule) In re the Estate of Walker
N.Y. App. Div. · 2011 · confidence medium
The burden of proving capacity rests with the proponent of the will, who must demonstrate that decedent “understood the consequences of executing the will, knew the nature and extent of the property being disposed of and knew the persons who were the natural objects of her bounty, and her relationship to them” (Matter of Ruparshek, 36 AD3d 998, 999 [2007]; see Matter of Kumstar, 66 NY2d 691, 692 [1985]; Matter of Castiglione, 40 AD3d 1227, 1228 [2007], lv denied 9 NY3d 806 [2007]).
discussed Cited as authority (rule) In re the Estate of Scaccia
N.Y. App. Div. · 2009 · confidence medium
While summary judgment in a contested probate case is not typical, it is nonetheless proper where the proponents submit evidence establishing a prima facie case for probate and the objectant fails to raise a material issue of fact (see Matter of Colverd, 52 AD3d 971, 972 [2008]; Matter of Castiglione, 40 AD3d 1227, 1229 [2007], lv denied 9 NY3d 806 [2007]; Matter of Fairbairn, 9 AD3d 579, 580 [2004], lv denied 3 NY3d 612 [2004]).
discussed Cited as authority (rule) In re the Estate of Paigo
N.Y. App. Div. · 2008 · confidence medium
The self-executing affidavit accompanying the will and signed by the three witnesses creates a presumption of due execution (see Matter of Castiglione, 40 AD3d 1227, 1228 [2007], lv denied 9 NY3d 806 [2007]; Matter of Pilon, 9 AD3d 771, 772 [2004]; Matter of Leach, 3 AD3d 763, 764-765 [2004]; Matter of Clapper, 279 AD2d 730, 731 [2001]), and respondents failed to demonstrate that a material triable issue of fact existed regarding the will execution ceremony and compliance with EPTL 3-2.1 (see Matter of Pilon, 9 AD3d at 772 ; Matter of Leach, 3 AD3d at 764-765 ; Matter of Clapper, 279 AD2d at 7…
discussed Cited as authority (rule) In re the Estate of Colverd (2×) also: Cited "see"
N.Y. App. Div. · 2008 · confidence medium
Notably, summary judgment in a contested probate proceeding, while rare, is proper when the petitioner sufficiently establishes a prima facie case for probate and the respondent fails to raise any genuine issues of fact (see Matter of Castiglione, 40 AD3d 1227, 1229 [2007], lv denied 9 NY3d 806 [2007]; Matter of Fairbairn, 9 AD3d 579, 580 [2004], lv denied 3 NY3d 612 [2004]; Matter of Young, 289 AD2d at 726 ).
discussed Cited "see" Matter of Linich
N.Y. App. Div. · 2023 · signal: see · confidence high
"Summary judgment is rare in a contested probate proceeding" ( Matter of Shapiro , 65 AD3d 790, 791 [3d Dept 2009] [internal quotation marks and citations omitted]; see Matter of Castiglione , 40 AD3d 1227, 1229 [3d Dept 2007], lv denied 9 NY3d 806 [2007]; Matter of Leach , 3 AD3d 763, 764 [3d Dept 2004]) and where, as here, "there is conflicting evidence or the possibility of drawing conflicting inferences from undisputed evidence," summary judgment is inappropriate ( Matter of Kumstar , 66 NY2d 691, 692 [1985]; see Matter of Paigo , 53 AD3d 836, 839 [3d Dept 2008]; Matter of Williams , 13 AD…
examined Cited "see" ALIBRANDI, MARY BETH, MTR. OF (3×)
N.Y. App. Div. · 2013 · signal: see · confidence high
“It is the indisputable rule in a will contest that ‘[t]he proponent has the burden of proving that the testator possessed testamentary capacity and the [Surrogate] must look to the following factors: (1) whether []he understood the nature and consequences of executing a will; (2) whether []he knew the nature and extent of the property []he was disposing of; and (3) whether []he knew those who would be considered the natural objects of h[is] bounty and h[is] relations with them’ ” (Matter of Kumstar, 66 NY2d 691, 692 , rearg denied 67 NY2d 647 ; see Matter of Castiglione, 40 AD3d 1227,…
examined Cited "see" In re the Estate of Alibrandi (3×)
N.Y. App. Div. · 2013 · signal: see · confidence high
“It is the indisputable rule in a will contest that ‘[t]he proponent has the burden of proving that the testator possessed testamentary capacity and the [Surrogate] must look to the following factors: (1) whether [ ]he understood the nature and consequences of executing a will; (2) whether [ ]he knew the nature and extent of the property [ ]he was disposing of; and (3) whether [ ]he knew those who would be considered the natural objects of h[is] bounty and h[is] relations with them’ ” (Matter of Kumstar, 66 NY2d 691, 692 [1985], rearg denied 67 NY2d 647 [1986]; see Matter of Castiglion…
examined Cited "see" In re the Estate of Alibrandi (3×)
N.Y. App. Div. · 2013 · signal: see · confidence high
“It is the indisputable rule in a will contest that ‘[t]he proponent has the burden of proving that the testator possessed testamentary capacity and the [Surrogate] must look to the following factors: (1) whether [ ]he understood the nature and consequences of executing a will; (2) whether [ ]he knew the nature and extent of the property [ ]he was disposing of; and (3) whether [ ]he knew those who would be considered the natural objects of h[is] bounty and h[is] relations with them’ ” (Matter of Kumstar, 66 NY2d 691, 692 [1985], rearg denied 67 NY2d 647 [1986]; see Matter of Castiglion…
discussed Cited "see" In re the Estate of DiSiena
N.Y. App. Div. · 2013 · signal: see · confidence high
A copy of a lost or destroyed will may be submitted for probate only if it is established that (1) “the will has not been revoked,” (2) the will was properly executed, and (3) “[a]ll of the provisions of the will [can be] clearly and distinctly proved by each of at least two credible witnesses or by a copy or draft of the will proved to be true and complete” (SCPA 1407; see Matter of Castiglione, 40 AD3d 1227, 1229 [2007], lv denied 9 NY3d 806 [2007]).
discussed Cited "see" In re the Estate of DiSiena
N.Y. App. Div. · 2013 · signal: see · confidence high
A copy of a lost or destroyed will may be submitted for probate only if it is established that (1) “the will has not been revoked,” (2) the will was properly executed, and (3) “[a]ll of the provisions of the will [can be] clearly and distinctly proved by each of at least two credible witnesses or by a copy or draft of the will proved to be true and complete” (SCPA 1407; see Matter of Castiglione, 40 AD3d 1227, 1229 [2007], lv denied 9 NY3d 806 [2007]).
discussed Cited "see" In re the Estate of Murray
N.Y. App. Div. · 2008 · signal: see · confidence high
The initial burden of proving competency to execute the will rested with petitioner, who had to demonstrate that decedent “understood the consequences of executing the will, knew the nature and extent of the property being disposed of and knew the persons who were the natural objects of her bounty, and her relationship to them” (Matter of Ruparshek, 36 AD3d 998, 999 [2007]; see Matter of Castiglione, 40 AD3d 1227, 1228 [2007], lv denied 9 NY3d 806 [2007]).
Retrieving the full opinion text from the archive…
In the Matter of the Estate of Louis J. Castiglione, Also Known as Louis Castiglione, Sr., Anita Castiglione, as of Louis J. Castiglione, Also Known as Louis Castiglione, Sr., Respondent Elaine Castiglione
Appellate Division of the Supreme Court of the State of New York.
May 10, 2007.
40 A.D.3d 1227
Peters.
Cited by 28 opinions  |  Published
Peters, J.P.

Appeal from an order of the Surrogate’s Court of Fulton County (Hoye, S.), entered January 11, 2006, which granted petitioner’s motion to dismiss the objections to decedent’s will and admitted the will to probate.

Following decedent’s death, petitioner sought to probate a copy of decedent’s will and a subsequently executed codicil. When petitioner experienced difficulty in personally serving respondent, Surrogate’s Court issued an order permitting service by mail. Eetitioner complied with that order and respondent filed objections challenging personal jurisdiction, testamentary capacity and due execution of the will. She further alleged fraud[*1228] relating to the probate of the lost will and undue influence. Although the objections were filed late and were in improper form, Surrogate’s Court considered respondent’s arguments in the interest of justice. Upon the admission of the will to probate, respondent appealed.

There is no merit to the contention that Surrogate’s Court lacked jurisdiction. After petitioner’s showing of due diligence, Surrogate’s Court issued an order directing an alternate form of service as permitted by SCPA 307. Upon proof that petitioner fully complied with that order, personal jurisdiction was properly obtained over respondent (see SCPA 203).

Respondent’s challenge to decedent’s testamentary capacity (see EPTL 3-1.1) mandated that petitioner, as the proponent of the motion, demonstrate that decedent understood (1) the nature and consequences of executing a will, (2) the nature and extent of his property, and (3) the natural objects of his bounty and his relationship to them (see Matter of Kumstar, 66 NY2d 691, 692 [1985]; Matter of Ruparshek, 36 AD3d 998, 999 [2007]). Pursuant to these requirements, we find decedent’s capacity initially supported by the provisions in the will naming his spouse and issue as beneficiaries, thereafter disposing of his property in a prudent manner; the codicil did not change its relevant substantive provisions. Moreover, both the will and the codicil were filed with self-executing affidavits wherein each of the witnesses stated that, in their opinion, decedent suffered from no physical or mental impairment at the time of signing. As petitioner reached the requisite presumption of testamentary capacity (see Matter of Ruparshek, supra at 999; Matter of Friedman, 26 AD3d 723, 725 [2006], lv denied 7 NY3d 711 [2006]; Matter of Fairbairn, 9 AD3d 579, 580 [2004], lv denied 3 NY3d 612 [2004]), respondent countered only with a bare assertion that decedent suffered from Alzheimer’s disease. As this allegation was not supported by any medical evidence or competent testimony, it was properly found to be insufficient (see Matter of Dietrich, 271 AD2d 894, 894 [2000]; compare Matter of Ruparshek, supra at 999-1000).

Nor do we find a viable challenge to the execution of the will and codicil (see EPTL 3-2.1). The affidavits of the attesting witnesses indicate thet each of these documents was subscribed to in the witness’s presence and executed under the supervision of the respective attorney-draftsperson. With this constituting prima facie evidence of due execution (see Matter of Seelig, 302 AD2d 721, 722 [2003]; Matter of Dietrich, supra at 894; Matter of Ruso, 212 AD2d 846, 846-847 [1995]; but see SCPA 1406 [1] [a]), respondent’s failure to challenge that showing with any[*1229] competent evidence warranted a dismissal of this objection (see Matter of Seelig, supra at 722; Matter of Dietrich, supra at 894).

Regarding petitioner’s submission of a copy of the lost will for probate, SCPA 1407 permits that practice if it can be shown that (1) the will has not been revoked, (2) the will was duly executed, and (3) all of the provisions of the will can be clearly proven by at least two credible witnesses or by “a copy or draft of the will proved to be true and complete” (SCPA 1407 [3]). Recognizing the presumption of revocation under these circumstances (see Matter of Philbrook, 185 AD2d 550, 552 [1992]), petitioner offered the affidavit of the attorney-draftsperson, Robert Dorfman, stating that the original version of the will was kept with him for safekeeping and it was lost at the time that he moved his office (compare id.). This chain of custody was corroborated by a sworn statement prepared by Mario Papa, the attorney-draftsperson of the codicil, who confirmed that decedent still believed that his will was in existence at the time of the preparation of the codicil. Petitioner further offered a signed photocopy of the will, along with a sworn statement by Dorfman that this copy was an exact replica of the original will. Having satisfied the statutory requirements of SCPA 1407 (compare Matter of Kleefeld, 55 NY2d 253, 258-260 [1982]; see Matter of Haefner, 4 Misc 2d 835, 836 [1956]), respondent’s failure to proffer any viable evidence to the contrary warranted a dismissal of this objection as well.

Finally addressing respondent’s allegations of undue influence, it was her burden to demonstrate that decedent was actually constrained to act against his own free will and desire (see Matter of Fellows, 16 AD3d 995, 996 [2005]). Motive and opportunity, “the acts allegedly constituting the influence as well as when and where such acts occurred” (Matter of Ruparshek, supra at 1000), had to be identified (see Matter of Nofal, 35 AD3d 1132, 1134-1135 [2006]; Matter of Fellows, supra at 996). Having failed to meet this burden, this objection was properly dismissed (see Matter of Ruparshek, supra at 1000; Matter of Nofal, supra at 1135; Matter of Friedman, supra at 725).

While recognizing that summary judgment in a matter of this kind is unusual, we find it appropriate where, as here, there is sufficient evidence establishing a prima facie case for probate and a lack of any viable evidence to the contrary (see Matter of Fairbairn, supra at 580; Matter of Seelig, supra at 722; see also Matter of Ruparshek, supra at 1000; Matter of Dietrich, supra at 894). Accordingly, the order of Surrogate’s Court dismissing the objections and granting probate of decedent’s will is affirmed.

Spain, Mugglin, Rose and Lahtinen, JJ., concur. Ordered that the order is affirmed, without costs.