Judge Peter Kelly


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Petitioner, a niece-in-law of the decedent, moved for summary judgment dismissing the objections to the decedent’s will that had been filed by her two daughters. The objectant’s counsel cross-moved, claiming that essential discovery was required in order to oppose the motion and that triable issues of fact existed precluding summary judgment. The court first determined that the discovery sought by the objectant was not relevant to the validity of the offered instrument and dismissed the cross-motion. The court then held that petitioner had satisfied her prima facie burden by submission of the will, which included an attestation clause and self-proving affidavit, and the transcripts of the 1404 examinations of the attorney draftsperson and attesting witnesses. The court added that the objectant’s submission of an affidavit from her brother-in-law which stated in general terms that the testator exhibited “signs and symptoms of advancing dementia” was insufficient to create an issue of fact with respect to the decedent’s capacity at the time it was executed. The court further held the claims that the testator was isolated from her daughters by the petitioner were belied by the objectants’ own testimony.