Summary judgment: It might be the most prevalent of motions, in support of which even the most inexperienced among us likely can, without a second thought, quote the prevailing case law. But, as with anything that becomes rote, are we correct in our understanding of the law and have we kept current with respect to the likelihood of success in the bringing of a summary judgment motion in the context of a will contest?
The basic premise for the bringing of a motion for summary judgment is no different in the Surrogate’s Court than in any other trial courtin sum, if it can be proven to the court that no genuine issue of material fact exists, a trial can be avoided.1 Historically however, Surrogates have for the most part, been unwilling to grant such a drastic remedy in the context of a will contest, a proceeding which, by its very nature, is fact driven. Given this seeming predisposition, and the fact that the grant or denial of summary judgment is inherently within the sound discretion of the court, it has been a motion that many members of the trusts and estates bar have been hesitant to bring. The state of the law was such that it was perceived that any question of fact, material or not, could be a sufficient basis for denial. Thus, it was commonly thought that the risk in bringing the motion, given the necessity of laying bare one’s theory of the case and the supporting evidence, was not worth the possible, but highly unlikely, reward.
