At page 902 Establishing presumption of regularity and capacity to make a will12 citing cases“the 'proponent knowingly made a false statement that caused decedent to execute a will that disposed of his property in a manner different from the disposition he would have made in the absence of that statement”
- Matter of Watt, 247 A.D.3d 1556 (N.Y. App. Div. 4th Dep't 2026).published"Mere speculation and conclusory allegations, without specificity as to precisely where and when the influence was actually exerted, are insufficient to raise an issue of fact" ( Matter of Walker , 80 AD3d 865, 867 [3d Dept 2011], lv denie…
- Matter of Ayan, 2026 NY Slip Op 50249(U) (N.Y. Surr. Ct., Monroe Cty. 2026).unpublished Presumptions of regularity arise if a Will is supervised by an attorney-draftsman, contains properly executed attestations, or includes a self-executing affidavit ( Matter of Coniglio , 242 AD2d 901, 902 [4th Dept 1997]; Matter of Falk , 4…
- Matter of Burrows, 203 A.D.3d 1699 (N.Y. App. Div. 4th Dep't 2022).publishedHere, we conclude that petitioners met their initial burden on the motion to show that the will was not the product of undue influence ( see Alibrandi , 104 AD3d at 1177-1178; Matter of Coniglio , 242 AD2d 901, 902 [4th Dept 1997]).
- Matter of Jon Z., 178 A.D.3d 1417 (N.Y. App. Div. 4th Dep't 2019).publishedIn his opposition to respondent's motion, however, petitioner offered no evidence of fraud aside from his conclusory statements, which are insufficient to establish either fraud or the unreasonableness of the requested amounts ( see genera…
- In re the Est. of Lewis, 114 A.D.3d 203 (N.Y. App. Div. 4th Dep't 2014).published Here, we are unable to examine any of the circumstances surrounding the execution and attestation of the lost will because we do not have the document or a copy thereof, we do not know where it may have been executed, we do not know who dr…
- In re the Est. of Colverd, 52 A.D.3d 971 (N.Y. App. Div. 3d Dep't 2008).published“To establish fraud, it must be shown that the ‘proponent knowingly made a false statement that caused decedent to execute a will that disposed of his property in a manner different from the disposition he would have made in the absence of…
- In re the Est. of Seelig, 13 A.D.3d 776 (N.Y. App. Div. 3d Dep't 2004).publishedTo prove fraud, it must be shown that “the ‘proponent knowingly made a false statement that caused decedent to execute a will that disposed of his property in a manner different from the disposition he would have made in the absence of tha…
- In re the Est. of Young, 289 A.D.2d 725 (N.Y. App. Div. 3d Dep't 2001).published Notably, the fact that her attorney drafted the will creates a presumption of regularity (see, Matter of Coniglio, supra, at 902).
- In re the Est. of Branovacki, 278 A.D.2d 791 (N.Y. App. Div. 4th Dep't 2000).publishedWhile undue influence may be proven by circumstantial evidence that is of a “substantial nature” (Matter of Walther, 6 NY2d 49, 54 ), petitioner failed to submit evidence, circumstantial or otherwise, sufficient to raise an issue of fact w…
- In re the Est. of Dane, 32 A.D.3d 1233 (N.Y. App. Div. 4th Dep't 2006).publishedMoreover, we conclude that respondent failed to overcome the presumption of regularity and due execution arising from the fact that the will’s execution was supervised by the attorney-draftsperson (see James, 17 AD3d at 367 ; Matter of Her…
Show 1 more citing case
- In re Clapper, 279 A.D.2d 730 (N.Y. App. Div. 3d Dep't 2001).published
At page 901 Granting summary judgment in contested probate proceedings3 citing casesOrder unanimously reversed on the law without costs and motion granted. Memorandum: Charles C. Coniglio (decedent) executed a will on September 23, 1993,…
- Matter of Ayan, 2026 NY Slip Op 50249(U) (N.Y. Surr. Ct., Monroe Cty. 2026).unpublished Presumptions of regularity arise if a Will is supervised by an attorney-draftsman, contains properly executed attestations, or includes a self-executing affidavit ( Matter of Coniglio , 242 AD2d 901, 902 [4th Dept 1997]; Matter of Falk , 4…
- In re the Est. of Richardson, 43 A.D.3d 1352 (N.Y. App. Div. 4th Dep't 2007).published“Summary judgment in contested probate proceedings, while rare, should not be withheld where, as here, [the] proponent makes out a prima facie case for probate and [the] objectant[ ] fail[s] to raise a material issue of fact” (Matter of Co…
- In re the Est. of Adamo, 16 Misc. 3d 800 (N.Y. Sur. Ct. 2007).publishedFurthermore, as the objectant also failed to produce any proof establishing the classic case of fraud, to wit, that the proponent knowingly made a false statement of fact that caused the decedent to dispose of his property under his will i…
Other citing cases
- Simmons, James Robert, Mtr. of, No. CA 12-01605 (N.Y. App. Div. 4th Dep't Jan. 3, 2014).published
- Est. of Bux, 2024 NY Slip Op 34583(U) (N.Y. Surr. Ct., Bronx, Cty. 2024).unpublished
Order unanimously reversed on the law without costs and motion granted. Memorandum: Charles C. Coniglio (decedent) executed a will on September 23, 1993, leaving his entire estate to proponent, Leo R. Coleman, Jr., a non-relative, and naming Coleman as executor. Decedent died on August 23, 1995, survived by 23 distributees. After proponent petitioned for admission of the will to probate, 12 of decedent’s distributees filed objections, alleging lack of due execution and testamentary capacity, undue influence and fraud. Proponent moved for summary judgment dismissing the objections and admitting the will to probate. Surrogate’s Court erred in denying the motion.
Summary judgment in contested probate proceedings, while rare, should not be withheld where, a's here, proponent makes[*902] out a prima facie case for probate and objectants fail to raise a material issue of fact (see, Matter of Parravani, 211 AD2d 965, 966). The record establishes that the will was duly executed pursuant to the formal requirements of execution and attestation set forth in EPTL 3-2.1. There is a presumption of regularity because the attorney-draftsman supervised the will’s execution (see, Matter of Kindberg, 207 NY 220, 228; Matter of Esberg, 215 AD2d 655), and objectants failed to overcome that presumption.
The record further establishes that at all relevant times, including the time when the will was executed, decedent possessed the capacity required by EPTL 3-1.1 to make a will. He knew the nature and extent of his property and “those who would be considered the natural objects of [his] bounty”, and he understood the nature and consequences of executing the will (Matter of Kumstar, 66 NY2d 691, 692, rearg denied 67 NY2d 647). The proof establishes that decedent, despite his age and reclusiveness, was “of sound mind and memory” when he executed the will (EPTL 3-1.1; see, Matter of Tabaczynski, 217 AD2d 965, 966; Matter of O’Brien, 182 AD2d 1135; cf., Matter of Warsaski, 228 AD2d 275).
Lastly, the record establishes that the will was not the product of undue influence or fraud on the part of proponent (see, Matter of Tabaczynski, supra, at 966). A mere showing of opportunity and motive to exercise undue influence is insufficient to present a triable issue of fact, without evidence that undue influence was actually wielded (see, Matter of Walther, 6 NY2d 49, 55). Unsubstantiated and conclusory allegations are also insufficient to raise a triable issue of fact whether proponent knowingly made a false statement that caused decedent to execute a will that disposed of his property in a manner different from the disposition he would have made in the absence of that statement (see, Matter of Bianco, 195 AD2d 457, 458).
In view of our determination, we need not address the issue raised by proponent. (Appeal from Order of Jefferson County Surrogate’s Court, Schwerzmann, S.—EPTL.) Present—Green, J. P., Pine, Wisner, Balio and Fallon, JJ.