At page 482 Presumptions of proper will execution and capacity14 citing caseswe may infer the lost will was prepared by an attorney because it was accompanied by a cover letter from an attorney’s office, neither case supports that proposition
- Matter of Mengoni, 2025 NY Slip Op 33834(U) (N.Y. Surr. Ct., New York Cty. 2025).unpublishedThe instrument was also drafted by an attorney, and its execution was attorney- 4 [* 4] supervised, and it is thus entitled to the presumption that it was properly executed (see Matter of Sanger, 45 Misc 3d 246, 250 [Sur Ct, Nassau County…
- Est. of Bastone, 2024 NY Slip Op 33898(U) (N.Y. Surr. Ct., Bronx, Cty. 2024).unpublishedMoreover, the instrument's execution was supervised by its attorney-draftsman, creating a presumption of regularity (Matter of Moskoff, 41 AD3d 481, 482 [2d Dept 2007]), and it contains a valid attestation clause raising a presumption of v…
- Matter of Shui Yuk Mak Chin, 153 A.D.3d 628 (N.Y. App. Div. 2d Dep't 2017).publishedThe petitioner made a prima facie showing of entitlement to judgment as a matter of law dismissing the objections to the probate of the decedent’s will by demonstrating that the will was duly executed, the decedent had testamentary capacit…
- In re Mele, 113 A.D.3d 858 (N.Y. App. Div. 2014).published Moreover, the will contained an attestation clause and a “self-proving affidavit,” which gave rise to a presumption of compliance with the statutory requirements (see Matter of Rottkamp, 95 AD3d at 1339; Matter of Moskoff 41 AD3d 481, 482…
- In re the Est. of Lewis, 114 A.D.3d 203 (N.Y. App. Div. 4th Dep't 2014).published (we may infer the lost will was prepared by an attorney because it was accompanied by a cover letter from an attorney’s office, neither case supports that proposition)
- In re Rottkamp, 95 A.D.3d 1338 (N.Y. App. Div. 2d Dep't 2012).published In addition, the will contained an attestation clause and a “self-proving affidavit,” which give rise to a presumption of compliance with the statutory requirements (see Matter of Moskoff, 41 AD3d 481, 482 [2007]; Matter of Tuccio, 38 AD3d…
- In re the Est. of Halpern, 76 A.D.2d 429 (N.Y. App. Div. 1st Dep't 2010).publishedIf 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 AD3d 481, 482 [2007]; Matter of Tuccio, 38 AD3d 791, 791 [2007], lv denied 9 NY3…
- In re Schlaeger, 74 A.D.3d 405 (N.Y. App. Div. 1st Dep't 2010).publishedWhere, as here, the attorney-drafter supervises the execution of the will, there is a presumption of regularity that the will was properly executed in all respects (Matter of Moskoff, 41 AD3d 481, 482 [2007]; Hedges, 100 AD2d at 587 ).
- In re Templeton, 116 A.D.3d 781 (N.Y. App. Div. 2d Dep't 2014).published “Further, where, as here, the drafting attorney supervised the will’s execution, there is a presumption of regularity that the will was properly executed in all respects” (Matter of Farrell, 84 AD3d at 1374 ; see Matter of Moskoff, 41 AD3d…
Other citing cases
- Matter of Hadden, 188 A.D.3d 686 (N.Y. App. Div. 2d Dep't 2020).published
- Simmons, James Robert, Mtr. of, No. CA 12-01605 (N.Y. App. Div. 4th Dep't Jan. 3, 2014).published
In a contested probate proceeding, David Moskoff appeals from (1) an order of the Surrogate’s Court, Rockland County (Del Pizzo, S.), dated November 9, 2005, which granted the petitioner’s motion for summary judgment dismissing his objections, and (2) a decree of the same court dated December 12, 2005, which admitted the will to probate.
Ordered that the appeal from the order is dismissed, without costs or disbursements; and it is further,
Ordered that the decree is reversed, on the law, without costs or disbursements, that branch of the petitioner’s motion which was for summary judgment dismissing the objection based on lack of testamentary capacity is denied, and the order dated November 9, 2005, is modified accordingly.
The appeal from the order must be dismissed because the right of direct appeal therefrom terminated with the entry of the decree in the proceeding (see Matter of Aho, 39 NY2d 241, 248 [1976]). The issues raised on appeal from the order are brought up for review and have been considered on the appeal from the decree.
On his motion for summary judgment, the petitioner established his entitlement to judgment as a matter of law. In opposition, David Moskoff, an objectant to the will, failed to raise a[*482] triable issue of fact as to whether the will was duly executed pursuant to EPTL 3-2.1. Notably, since the attorney draftsman supervised the will’s execution, there is a presumption of regularity that the will was properly executed in all respects (see Matter of Tuccio, 38 AD3d 791 [2007]; Matter of Weltz, 16 AD3d 428 [2005]; Matter of Spinello, 291 AD2d 406 [2002]). Furthermore, the attestation clause and self-proving affidavit give rise to a presumption of compliance with all statutory provisions (see Matter of Collins, 60 NY2d 466, 471 [1983]). Similarly, there were no triable issues of fact raised as to the alleged undue influence or fraud. However, there were triable issues of fact raised in response to the petitioner’s showing that the testator possessed the requisite testamentary capacity to make a will. Crane, J.P., Krausman, Fisher and Lifson, JJ., concur.