Surrogate Peter Kelly
Petitioner sought summary judgment on his petition to probate a May 27, 1998 instrument, and dismissal of objections filed by his brother. Objectant cross-moved to compel discovery, or alternatively, to dismiss the probate proceeding. He argued the instrument offered for probate was not the original will, and the drafting of the offered instrument was the product of undue influence exercised by petitioner over decedent. The court noted there was no credible evidence to raise an issue of fact regarding decedent's testamentary capacity, and the statutory requirements for due execution were met. It also found objectant failed to provide any credible evidence to support a claim of fraud, granting dismissal of such allegation. Further, the court ruled there was no evidence the will was the work product of petitioner, that he interfered with the drafting of the will, or even spoke with the attorney-draftsman about the will before its execution. It noted witness affidavits provided that decedent was not under restraint, stating the fact the will left everything to petitioner was not enough evidence to sustain an objection of undue influence. Thus, dismissal of the objection was granted, and objectant's cross-motion to compel discovery or dismiss the probate petition was denied.
