WILL OF WARSASKI v. Michael Spiegel, Objectant-Respondent.

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Supreme Court, Appellate Division, First Department, New York.

Probate Proceeding, WILL OF Abraham WARSASKI, Deceased, Proponent-Respondent, v. Marshall SPIEGEL, Objectant-Appellant, Michael Spiegel, Objectant-Respondent.

Decided: February 23, 1999

SULLIVAN, J.P., ELLERIN, WILLIAMS and WALLACH, JJ. Steven E. Rosenfeld, for proponent-respondent. Marshall Spiegel, pro se.

Decree, Surrogate's Court, New York County (Renee Roth, S.), entered on or about October 16, 1997, which, upon, inter alia, the Surrogate's direction of a verdict dismissing the remaining objection to probate premised on the deceased's alleged lack of testamentary capacity objection, admitted the propounded instrument to probate as the Last Will and Testament of the deceased, unanimously affirmed, with costs.

The Surrogate properly refused to admit in evidence the manuscripts offered by the objectant to establish lack of testamentary capacity.   Objectant could not authenticate them due to the strictures of CPLR 4519.   Nor was there any waiver of those strictures effected by the attorney-executor's testimony, since the attorney-executor did not testify to any transactions between the deceased and the objectant, and since, as the attorney who prepared the will, he was permitted to testify about the circumstances surrounding the will's preparation (see, CPLR 4503(b);  Matter of Wood, 52 N.Y.2d 139, 436 N.Y.S.2d 850, 418 N.E.2d 365).   Furthermore, there was no proof of intentional destruction of any relevant documents.

Finally, objectant was given sufficient notice by the Surrogate of the firm trial date to justify the Surrogate's denial of objectant's request for an adjournment by reason of his out-of-State attorney's scheduling conflict.


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