Surrogate John Czygier Jr.
In a contested probate proceeding, an instrument dated March 11, 2012 was offered for probate as the last will and testament of the decedent, Daniel Murphy. Decedent’s surviving spouse, Anita Costa, filed objections to the probate of the will. Costa asserted that the will was not duly executed by the decedent, that at the time of execution the decedent lacked testamentary capacity, and that the execution of the will was the result of fraud and undue influence. The court determined that petitioner has established prima facie that the decedent was of sound mind and memory when he executed the will. The court, however, found the claims that decedent lacked capacity raise a triable issue of fact and issues of credibility of the various witnesses. The court noted the fact that the will is scrawled and almost totally illegible and added that decedent may have spelled his last name incorrectly. The court further noted that absent from the record is any evidence that the will was not executed in conformity with applicable law and, therefore, it dismissed the objection that the will was not duly executed.
