IN RE: Augustine BALDINO (2024)

DECISION & ORDER

In a contested probate proceeding, the objectant appeals from an order and decree (one paper) of the Surrogate's Court, Dutchess County (Michael G. Hayes, S.), entered August 25, 2021.  The order and decree, insofar as appealed from, granted those branches of the petitioner's motion which were for summary judgment dismissing the objections to probate based on lack of testamentary capacity and undue influence and admitted the will to probate.

ORDERED that the order and decree is affirmed insofar as appealed from, with costs.

On September 27, 2018, Augustine Baldino, also known as Augustine Michael Baldino, Sr. (hereinafter the decedent), executed his last will and testament before two disinterested witnesses and under the supervision of the attorney who drafted it.  The will distributed certain collectibles to the decedent's grandson and the remainder of the decedent's property to the petitioner, his “significant other” of 38 years.  The decedent died on October 12, 2018.

The petitioner commenced this proceeding to admit the will to probate.  The decedent's daughter, Barbara Baldino–Murphy, also known as Barbara Murphy (hereinafter the objectant), filed objections to probate on the grounds of lack of testamentary capacity and undue influence, among others.  After discovery, the petitioner moved for summary judgment dismissing the objections.  The objectant, inter alia, opposed the motion.  In an order and decree entered August 25, 2021, the Surrogate's Court, among other things, granted those branches of the petitioner's motion which were for summary judgment dismissing the objections to probate based on lack of testamentary capacity and undue influence and admitted the will to probate.  The objectant appeals.

“The proponent of a will has the burden of proving that the propounded instrument was duly executed in conformance with the statutory requirements” (Matter of Christie, 170 A.D.3d 718, 719, 95 N.Y.S.3d 286;  see EPTL 3–2.1[a];  Matter of Fiorentino, 224 A.D.3d 685, 686, 205 N.Y.S.3d 127).  Here, the petitioner demonstrated her prima facie entitlement to judgment as a matter of law by submitting a transcript of the deposition testimony of the attorney who drafted the will and witnessed its execution, along with a transcript of the deposition testimony of the additional attesting witness, which demonstrated that the statutory requirements for due execution were satisfied (see Matter of Robbins, 206 A.D.3d 739, 740, 167 N.Y.S.3d 832).  Moreover, “[w]here the will is drafted by an attorney and the drafting attorney supervises the will's execution, there is a presumption of regularity that the will was properly executed in all respects” (Matter of Sabatelli, 161 A.D.3d 872, 873–874, 76 N.Y.S.3d 207;  see Matter of Fiorentino, 224 A.D.3d at 686, 205 N.Y.S.3d 127 ).  In opposition, the objectant failed to raise a triable issue of fact (see Matter of Robbins, 206 A.D.3d at 740, 167 N.Y.S.3d 832;  Matter of Martinico, 177 A.D.3d 882, 884, 113 N.Y.S.3d 722).

Contrary to the objectant's contention, the Surrogate's Court properly granted that branch of the petitioner's motion which was for summary judgment dismissing the objection based on lack of testamentary capacity.  “The proponent of a will has the burden of proving that the testator possessed testamentary capacity and the court must look to the following factors:  (1) whether [the testator] understood the nature and consequences of executing a will;  (2) whether [the testator] knew the nature and extent of the property she [or he] was disposing of;  and (3) whether [the testator] knew those who would be considered the natural objects of her [or his] bounty and her [or his] relations with them” (Matter of Robbins, 206 A.D.3d at 740, 167 N.Y.S.3d 832;  see Matter of Kumstar, 66 N.Y.2d 691, 692, 496 N.Y.S.2d 414, 487 N.E.2d 271).  Testamentary capacity need only be shown at the time the will was executed and physical weakness or senile dementia is not necessarily inconsistent with testamentary capacity (see Matter of Robbins, 206 A.D.3d at 740, 167 N.Y.S.3d 832;  Matter of Martinico, 177 A.D.3d at 884, 113 N.Y.S.3d 722).

Here, the petitioner submitted evidence establishing, prima facie, that the decedent possessed testamentary capacity at the time the will was executed in the form of a self-proving affidavit of the attesting witnesses and deposition testimony of those witnesses (see Matter of Armato, 199 A.D.3d 999, 1001, 159 N.Y.S.3d 66;  Matter of Schmidt, 194 A.D.3d 723, 724, 148 N.Y.S.3d 477).  In opposition to the petitioner's prima facie showing, the objectant failed to raise a triable issue of fact (see Matter of Fiorentino, 224 A.D.3d at 687, 205 N.Y.S.3d 127 ).

Further, the Surrogate's Court properly granted that branch of the petitioner's motion which was for summary judgment dismissing the objection alleging undue influence.  The petitioner demonstrated her prima facie entitlement to judgment as a matter of law through the submission of evidence that the will was not the product of undue influence (see Matter of Cianci, 165 A.D.3d 655, 657–658, 85 N.Y.S.3d 117;  Matter of Marra, 123 A.D.3d 1130, 1131, 1 N.Y.S.3d 232;  Matter of Zirinsky, 43 A.D.3d 946, 947–948, 841 N.Y.S.2d 637).  In opposition the objectant failed to raise a triable issue of fact (see Matter of Fiorentino, 224 A.D.3d at 687, 205 N.Y.S.3d 127).

Accordingly, the Surrogate's Court properly granted those branches of the petitioner's motion which were for summary judgment dismissing the objections to probate based on lack of testamentary capacity and undue influence and admitted the will to probate.

BRATHWAITE NELSON, J.P., MALTESE, VOUTSINAS and LOVE, JJ., concur.