Surrogate Nelida Malave-Gonzalez
Objectant Reina, a fiduciary of the estate of decedent Bono’s post-deceased cousin and sole distributee, moved for summary judgment denying probate of a propounded will, alleging lack of due execution and lack of testamentary capacity. Bono’s preliminary executors cross-moved for summary judgment dismissing the objections. The court noted records from the nursing home in which Bono resided indicated that on the day of execution of the propounded instrument, she became unresponsive in the morning, and subsequently had what may have amounted to mini-strokes. Also, upon hospitalization, doctors’ notes related that Bono had permanent dementia. The court noted that while the instrument was attorney-drafted in that the attorney typed in the names of charities relayed to him, it was not attorney supervised at the execution. The court found there was substantial compliance with publication requirements and, witnessed by two witnesses, it contained an attestation clause. Thus, dismissal of the lack of due execution claim was granted. Yet, it stated considering the alleged discrepancies in testimony and credibility issues raised by Reina, there were issues of fact for trial regarding Bono’s testamentary capacity. Hence, dismissal on such issue was denied.
