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In re Probate of the Last Will and Testament of Iwachiw

Surrogate's Court of New York, Queens

June 21, 2013

In the Matter of the Probate of the Last WILL and Testament OF Josefa IWACHIW, Deceased. No. 2011-1678/A.

Editorial Note:

This decision has been referenced in a table in the New York Supplement.

Paul Kerson, Esq., Marc Crawford Leavitt, Esq., for petitioner.

Walter N. Iwachia, respondent pro-se.


Petitioner seeks leave to renew his motion for summary judgment seeking probate of an instrument dated May 27,1998 and dismissal of the objections filed by Walter Iwachiw, a distributee and petitioner's brother. Objectant, pro se, cross-moves, inter alia, to compel discovery, or in the alternative, to dismiss the probate proceeding and for an order appointing him administrator of decedent's estate.

Prior motions for identical relief were denied on the basis that the papers were procedurally deficient and the parties were given leave to bring motions for summary judgment in proper form. Accordingly, the Court will treat petitioner's motion as a motion for summary judgment and not one for renewal.

The relevant objections consist of the following: that the instrument offered for probate is not the original will and that the drafting of the instrument offered for probate was a product of undue influence exercised upon the decedent by the petitioner, Michael Iwachiw (who is decedent's son and objectant's brother), to wit, " the language of the will was the work product of Michael Iwachiw as the person who prepared the will." The balance of the objections consist of nonsensical assertions and address proceedings brought in other courts that are irrelevant to this probate proceeding.

Summary judgment may be granted only where it is clear that no triable issue of material fact exists ( see, Alvarez v. Prospect Hosp., 68 N.Y.2d 320; Phillips v. Joseph Kantor & Co., 31 N.Y.2d 307). Although summary judgment must be exercised cautiously, it is proper in a contested probate proceeding where the proponent submits a prima facie case for probate and the objectant fails to raise any genuine factual issues ( Matter of Minervini, 297 A.D.2d 423; Matter of Coniglio, 242 A.D.2d 901). Summary judgment may also be granted even where such proceedings involve issues of a fact-sensitive nature, such as fraud and undue influence ( see, Matter of Neuman, 14 A.D.3d 567; Matter of Goldberg, 180 A.D.2d 528). It is incumbent upon the movant to make a prima facie showing that he or she is entitled to summary judgment as a matter of law (CPLR § 3213[b]; Zuckerman v. City of New York, 49 N.Y.2d 557; Friends of Animals v. Associated Fur Mfrs., 46 N.Y.2d 1065; Matter of Coniglio, 242 A.D.2d 901; Matter of Parravani, 211 A.D.2d 965).

To defeat a motion for summary judgment, the opponent must assemble and lay bare affirmative proof to demonstrate the existence of a genuine triable issue of fact ( Stainless, Inc. v. Employers Fire Ins. Co., 69 A.D.2d 27, affd 49 N.Y.2d 924).

Allegations must be specific and detailed, substantiated by evidence in the record; mere conclusory assertions will not suffice ( Iselin & Co. v. Mann Judd Landau, 71 N.Y.2d 420; Matter of Newman, 14 A.D.3d 567). The papers submitted in support of and in opposition to the motion are scrutinized in a light most favorable to the party opposing the motion. If there is any doubt as to the existence of a triable issue of fact, then the motion must be denied ( Robinson v. Strong Memorial Hosp., 98 A.D.2d 976).

The proponent has the burden of proof to establish the validity of the will although no objection was raised with regard to due execution and testamentary capacity (see Matter of Cameron, 47 A.D. 120, affd 166 N.Y. 610). Petitioner has the burden of proving that the propounded instrument was duly executed in conformity with the statutory requirements ( see EPTL § 3-2.1[a]; Matter of Collins, 60 N.Y.2d 466; Matter of Rosen, 291 A.D.2d 562), and that the testator possessed testamentary capacity ( see Matter of Kumstar, 66 N.Y.2d 691; Matter of Hinman, 242 A.D.2d 900). Where the attestation clause is full and the signatures genuine and the circumstances corroborative of due execution, there is a presumption that all the provisions of the statute were complied with, even where the witnesses are unable to recollect the execution or what took place at the time ( In re Estate of Collins, 60 N.Y.2d 466; Matter of Kellum, 52 N.Y. 517). Additionally, as the execution ceremony was supervised by an attorney, there is a presumption of due execution ( see, Matter of Tuccio, 38 A.D.3d 791).

Petitioner annexed to his motion papers the transcripts of the SCPA § 1404 examinations of the two attesting witnesses, one of whom is the attorney who drafted the instrument and supervised its execution. Also annexed to the petitioner's motion papers is a copy of the instrument offered for probate, which contains an attestation clause indicating that, on May 27, 1998, the instrument was subscribed, sealed, published and declared by the decedent as her last will and testament in the presence of the witnesses, and that the witnesses, at the testator's request and in her presence and in the presence of each other, subscribed their names as witnesses. Additionally, attached to the instrument offered for probate is an Affidavit of Witnesses which reiterates the witnesses' testimony.

Objectant provided no credible evidence to raise an issue of fact with regard to due execution.

Accordingly, based on the above and there being no objection alleging lack of due execution, the Court finds that the statutory ...

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