Matter of Frame

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[*1] Matter of Frame 2012 NY Slip Op 50929(U) Decided on May 24, 2012 Sur Ct, Dutchess County Pagones, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on May 24, 2012
Sur Ct, Dutchess County

In the Matter of the Estate of John Michael Frame a/k/a JOHN FRAME Deceased.



2010/99122



TIMOTHY J. CURTISS, ESQ.

Attorney for Petitioner

20 Church Street

Carmel, New York 10512

STEPHEN E. DIAMOND, ESQ.

VERGILIS, STENGER, ROBERTS,

DAVIS & DIAMOND, LLP

Attorneys for Objectant

1136 Route 9

Wappingers Falls, New York 12590

James D. Pagones, J.

Objectant Patricia J. Frame moves for judgment pursuant to CPLR R3212 granting summary judgment denying the probate of the instrument propounded as the Last Will and Testament of John Michael Frame, the decedent, on that basis that it fails to comply with the due execution requirements of EPTL §3-2.1. The proponent, Lori Ann Barnard, opposes the objectant's motion and cross-moves for summary judgment admitting the propounded instrument to probate.

The decedent died on July 19, 2010 with a purported Last Will and Testament dated April 11, 2008. The propounded instrument was allegedly signed by the decedent in the Pawling office of Key Bank and was witnessed and attested by Michele Austin and Danielle Marie Svarplaitis, tellers/trainee tellers of Key Bank, and notarized by Vicki Jaromin, an operations supervisor for Key Bank. There is no dispute among the parties that the execution of the propounded instrument was not supervised by an attorney. The alleged witnesses to the propounded instrument also executed a self-proving affidavit.

The objectant conducted depositions of Michele Austin, Danielle Marie Svarplaitis and Vicki Jaromin pursuant to SCPA §1404.

Michele Austin acknowledged her signature appears on the [*2]propounded instrument and testified that she was handed the document and told to sign the same by another employee of the bank. She did not observe the decedent sign the propounded instrument, could not recall whether the propounded instrument was signed by the decedent at the time she signed it, and testified that the decedent was not present when she signed the instrument. According to Ms. Austin, she never met the decedent and did not recognize his name as being a bank customer. Ms. Austin stated she did not hear the decedent identify the document as his Last Will and Testament, that no one read any portion of the document to her, and that a notary was not present when she signed the document.

Danielle Svarplaitis also acknowledged her signature appears on the propounded instrument. While Ms. Svarplaitis could not recall any of the details surrounding the execution of the propounded instrument, she testified that she would not have signed the same if the decedent had not be in her presence.

Vicki Jaromin was able to identify her signature on the propounded instrument, but was also unable to recall any details of the day the instrument was signed. Notwithstanding Ms. Jaromin's inability to remember the execution of the document, she testified that she would not have notarized the signatures of any individuals who did not sign the document in her presence.

In order "to obtain summary judgment, it is necessary that the movant establish his or her cause of action or defense sufficiently to warrant the court as a matter of law in directing judgment' in his or her favor (CPLR 3212[b]), and he or she must do so by tender of evidentiary proof in admissible form." (Friends of Animals, Inc. v. Associated Fur Mfrs., Inc., 46 NY2d 1065, 1067 [1979].) Parties opposing a motion for summary judgment are obliged to lay bare their evidentiary proof in admissible form in order to show that their allegations are capable of being established at a trial. (Albouyeh v. County of Suffolk, 96 AD2d 543 [2d Dept. 1983] aff'd 62 NY2d 681 [1984].) Bare conclusory allegations, expressions of hope or unsubstantiated assertions are insufficient. (Zuckerman v. City of New York, 49 NY2d 557, 562 [1980].)

SCPA §1408 requires the court to "inquire particularly into all the facts and be satisfied with the genuineness of the will and the validity of its execution" before the will may be admitted to probate. The proponent of a will has the burden of proving that the propounded instrument was duly executed in conformance with the statutory requirements. (Matter of Greene, 89 AD3d 941 [2nd Dept. 2011].)

EPTL §3-2.1 provides the specific formal requirements for the execution and attestation of wills. To establish due execution, a proponent must show that "(I) the testator signed at the end of the instrument; (ii) the testator either signed in the [*3]presence of at least two attesting witnesses, or acknowledged his/her signature to them; (iii) the testator declared to each of the attesting witnesses that the instrument was his/her will; and (iv) the witnesses signed at the testator's request." (In re Hirschorn, N.Y.L.J. Nov. 5, 2008, P.36, col.3 (Sur. Ct. Westchester Co.)

It is well settled that where an attorney-draftsperson has supervised the propounded will's execution, there is a presumption of regularity that the will is properly executed in all respects. (Matter of James, 17 AD3d 366 [2nd Dept. 2005].) The proponent in the instant proceeding acknowledges that an attorney did not supervise the propounded instrument's execution. Accordingly, there can be no presumption that the will was properly executed in all respects and the proponent must establish each of the required elements.

A presumption of compliance with statutory requirements also arises where a propounded will contains an executed attestation clause and a self-proving affidavit. Here, the propounded instrument contains an executed attestation clause and a self-proving affidavit. Accordingly, the proponent established her prima facie entitlement to judgment as a matter of law dismissing the objections to probate based on lack of due execution.

In opposition, the objectant has raised a triable issue of fact precluding an award of summary judgment. Danielle Svarplaitis and Vicki Jaromin could not recall the events surrounding the alleged will execution, but both stated that they would not have signed the purported instrument unless the proper procedure was followed. Conversely, Michele Austin affirmatively testified that she did not observe the decedent sign the propounded instrument, that the decedent was not present when she signed the instrument and did not request her to sign the document, that no one published the propounded will to her prior to her signing the same and that she did not execute the same in the presence of a notary public. The conflicting testimony of the attesting witnesses and the notary public creates a triable issue of fact as to whether the specific requirements for due execution set forth in EPTL §3-2.1 were adhered to when the propounded instrument was signed.

Therefore, it is ordered that both the objectant's and the proponent's motions for summary judgment are denied. Counsel for the proponent is directed to submit a decree on notice consistent with the foregoing within ten (10) days of the date of this decision.

Counsel for the parties are directed to appear for a scheduling conference on June 21, 2012 at 9:30 a.m. Adjournments are only granted with leave of the court.

The court read and considered the following documents upon these applications:

[*4]

PAGES NUMBERED

1.Notice of Motion..............................1-2

Affirmation-Diamond......................1-16

Exhibits.................................A-F

2.Notice of Cross-Motion........................1-2

Affirmation-Curtiss......................1-5

Exhibit..................................A

3.Affirmation in Opposition/Support-Diamond.....1-11

Exhibits.................................A-D

The foregoing constitutes the decision of this court.

Dated:Poughkeepsie, New York

May 25, 2012

ENTER

HON. JAMES D. PAGONES, S.C.J.

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