Surrogate Nora Anderson
Decedent Hirsch’s temporary administrator, Lissner, objected to probate of the propounded will seeking dismissal of the probate petition. Hirsch was a widow with no known survivors, and her home attendant, Hodd, offered a purported will for probate leaving everything to Hodd, and naming her as executor. Lissner was decedent’s friend, and attorney for over 20 years. He drafted a will nominating him executor, that left the bulk of Hirsch’s estate to four charities. Lissner’s objections were based on lack of testamentary capacity, among other things. He claimed Hodd contacted him stating Hirsch wished to revise her will, yet, Lissner was never permitted to speak with Hirsch directly, and upon visiting her, she was naked, disoriented and could not state her name, or the date. The court found the facts affirmed by Lissner were sufficient to set forth a prima facie case Hirsch lacked testamentary capacity at the time the propounded instrument was executed. It noted there was a presumption a person who was incompetent shortly before execution of a will remained incompetent. The record revealed Hodd obstructed Lissner from conducting examinations of the draftsperson and attesting witnesses, entitling him to summary judgment denying probate and dismissing the probate petition.
