SAMUEL STEVEN MUHLBAUM v. DORON SAMUEL MILBAUM (2025)

Probate Proceeding, Will of

Michael Milbaum,

Deceased.

 File No. 2631/A/18

Order, Surrogate's Court, New York County (Rita Mella, S.), entered October 7, 2024, which granted the motion for summary judgment of proponent Samuel Steven Mulbaum to admit the will of Michael Milbaum to probate and appoint proponent executor, and denied objectant's cross-motion for summary judgment, unanimously affirmed, with costs.

Objectant challenges whether decedent had testamentary capacity.  As an initial matter, there is a presumption in favor of testamentary capacity in light of the self-proving affidavits of the witnesses to the execution (see Matter of Jacobs, 153 AD3d 622, 622 [2d Dept 2017] ).  In opposition, objectant failed to raise an issue of fact as to capacity (see generally Matter of Kumstar, 66 N.Y.2d 691, 692 [1985] ).

Objectant, decedent's son, asserts that decedent's statement to counsel that he had “no children” shows that decedent lacked capacity.  Objectant concludes that the failure to name his son shows that decedent did not know the natural objects of his bounty.  However, objectant testified that the relationship with decedent had been strained for many years.  He also conceded that proponent, decedent's nephew, who was the sole beneficiary, had a very close relationship with decedent.  In any event, the statement is insufficient to raise an issue of fact.  The fact that objectant is not expressly disinherited, or even mentioned in the will, does not show lack of testimony capacity (see Matter of Timer, 221 AD3d 1103, 1105 [3d Dept 2023] ).

Objectant argues that there was no record or testimony that decedent had knowledge of the assets he was disposing.  However, counsel testified that it was his regular practice to discuss the client's assets, and that he followed his usual practice here.  Counsel identified decedent's apartment and certain accounts as the relevant assets, and objectant fails to point to any significant omission (cf.  Matter of Falkowsky, 197 AD3d 1300, 1303 [2d Dept 2021], lv denied 39 NY3d 915 [2023] ).