Surrogate L�pez Torres

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OBJECTANTS, decedent’s cousins, sought dismissal of the probate petition alleging decedent lacked testamentary capacity when she executed the will. Petitioner executor cross-moved for summary judgment dismissing the objections and granting probate to the will. Objectants argued petitioner was precluded from asserting decedent had testamentary capacity under the doctrine of judicial estoppel. They argued petitioner, in a guardianship proceeding, alleged decedent suffered a stroke in 1995 resulting in sensory and expressive aphasia requiring appointment of a guardian. The court stated the assertion that decedent needed a guardian was not inconsistent with the assertion that she possessed testamentary capacity, noting less mental capacity was required to execute a will than to execute and other legal document. It stated the fact petitioner believed it was prudent to have a guardian for decedent did not establish decedent lacked testamentary capacity. The court denied objectants’ motion to dismiss.