Matter of Mery Su Ling Chin

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[*1] Matter of Mery Su Ling Chin 2015 NY Slip Op 51384(U) Decided on September 28, 2015 Surrogate's Court, Queens County Kelly, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 28, 2015
Surrogate's Court, Queens County

In the Matter of the Probate Proceeding, Will of Mery Su Ling Chin, Deceased.



2011-3910



Jeffrey L. Nogee, Esq.

Anna Guiliano, Esq.

Attorneys for Petitioner

Ilene S. Cooper, Esq.

Robert M. Harper, Esq.

Attorneys for Respondent

Scott G. Kaufman, Esq.

Guardian ad Litem
Peter J. Kelly, J.

In this proceeding the Petitioner, Tim Tom, seeks to admit to probate an instrument dated September 15, 2008 as the last will and testament of the Decedent. Objections to probate were filed by Rose Tom-Tsai, a daughter of the Decedent, and by the Guardian ad Litem for Lak Man Tom and Farah Tom, children of the Decedent whose whereabouts are unknown.

The instrument offered for probate was drafted by Deborah Chan, Esq. ("Chan") who also supervised its execution. The instrument contained the signatures of three attesting witnesses. Two, Victor Tsai ("Tsai") and Soo Shang Choy ("Choy"), were examined pursuant to SCPA §1404. The third witness is deceased.

By decision and order dated February 15, 2015, the Petitioner's motion for summary judgment was granted in part and denied in part. The objections alleging lack of testamentary capacity, fraud, undue influence and the eligibility of the nominated fiduciary to serve were dismissed. However, the court held that an issue of fact existed regarding whether the instrument at issue was duly executed in accordance with EPTL §3-2.1, solely due to the testimony that had been provided by Choy at her SCPA §1404 examination where she averred, inter alia, that the instrument offered for probate had [*2]not been properly witnessed or signed.

Upon completion of discovery a note of issue and a statement of issues to be determined at trial, as well as a counter-statement of issues were filed.

The counter-statement of issues, which the parties agreed prior to the commence of trial would be those determined by the court, were as follows:



1.Did Mery Su Ling Chin, the testator, subscribe the papers offered for probate, dated September 15, 2008, at the end thereof in the presence of each of the attesting witnesses, or acknowledge to each of the attesting witnesses, that the subscription appearing on such paper had been made by her?

2.At the time of making such subscription or acknowledgment, did Mery Su Ling Chin declare to the attesting witnesses that the said paper offered for probate was her Last Will and Testament?

3.Were there at least two attesting witnesses, each of whom signed his or her name at the end of the said paper at the request of Mery Su Ling Chin?

Both parties waived their right to a jury and a bench trial was commenced and conducted on June 1 and 8, 2015.

At the outset, contrary to the Objectant's assertion in her post trial memorandum of law regarding the applicable burden of proof, SCPA §1405[3],although undeniably applicable in this case, does not establish a "heightened standard for due execution." That section provides that "[w]here an attesting witness has forgotten the occurrence or testifies against the execution of the will and at least 1 other attesting witness has been examined the will may be admitted to probate upon the testimony of the other witness or witnesses and such other facts as would be sufficient to prove the will."

The Court of Appeals held in In re Estate of Collins, 60 NY2d 466 that the enactment of SCPA §1405 was "minor and clarifying" and not intended to either "revolutionize prior practice" or "sweep away the formidable body of case law that preceded it." The statute solely provides that an examination of an attesting witness can not be dispensed with where another witness either can not recall the events surrounding the execution or testifies against the will. The statutory requirement to "examine" the witness can be fulfilled by the other witness simply taking the stand and recounting their remembrance of the circumstances at issue (Collins, supra at 471 n.3).

The statute "does not impose requirements upon the substance of [the witness'] testimony" (Matter of Buchting, 111 AD3d 1114, 1115). After the witness is examined, "[t]he will may then be admitted to probate if the proof is sufficient to establish the will" (Collins, supra at 472). While the burden of proof does not change when an attesting witness fails to recall the execution or testifies against the instrument, the "care and vigilance" that the court must exercise in deciding whether to admit the instrument to probate is intensified (Collins, supra at 473). During the course of the trial, the following was presented and considered by the court.

As part of his direct case, the Petitioner introduced into evidence, in addition to [*3]the propounded instrument and self proving affidavits, the testimony of Tsai and Chan.

The instrument offered for probate is signed at the end by the Decedent and contains an attestation clause which is followed by the signatures of three witnesses. Also attached to that instrument is an affidavit of attesting witnesses in conformity with SCPA §1406 signed by the attesting witnesses and notarized by Chan. The presence of the attestation clause and the self-proving affidavit gives rise to a presumption of due execution (See e.g., In re Estate of Collins, supra; Matter of Templeton, 116 AD3d 781; Matter of Mooney, 74 AD3d 1073). An additional presumption that the instrument was duly executed arises from the testimony from Tsai and Chan which established that the execution of the instrument was supervised by Chan, an attorney licenced to practice law in New York State (See, e.g., Matter of Moskowitz, 116 AD3d 958; Matter of Tuccio, 38 AD3d 791).

The testimony of Tsai and Chan, even considering the escalated "care and vigilance" that must be attended by the court to this case based upon Choy's position against the instrument (SCPA §1405[3]), demonstrated that the instrument was executed in accordance with EPTL §3-2.1, including proper publication and attestation.

The court finds Tsai and Chan's testimony had the force and flavor of



credibility. The inconsistences in their testimony given at trial on direct and cross-examination, as well as discrepancies between their trial testimony and that given at the SCPA §1404 examinations are, in this court's experience, well within the ambit of routine variances found in many probate proceedings (See, Matter of Haber, 33 Misc 3d 1203[A]). This is especially so in this case given the length of time that elapsed from the execution of the will to the trial. While not identical in all respects, the testimony and other proof certainly established to the court's satisfaction that the instrument was properly executed.

On the contrary, the court did not find Choy's trial testimony convincing. Although Objectant's counsel in their memorandum repeatedly vouched for the credibility of Choy by pointing out her status as the Decedent's "longtime friend" without a "personal interest" in the proceeding, Choy was, in fact, the only witness produced at trial who had a personal relationship with a party. As noted in the memorandum of law, Choy taught the Objectant Chinese when she was a child. The continuing nature of the personal relationship between Choy and the Objectant was evidenced by the fact that the Objectant brought Choy to her SCPA §1404 examination, conversed with the Objectant regarding travel arrangements and also spoke to Choy just before her testimony outside the courtroom.

Observation of Choy's demeanor at trial leads this court to conclude she harbored a manifest bias for the Objectant. When questioned by Objectant's counsel, Choy's answers were direct and she was a focused and accommodating witness. When cross-examination began, Choy became a demonstrably less cooperative witness. Shortly after Petitioner's counsel began his exam and less than 30 minutes after taking the stand, Choy claimed she had a headache, needed to use the restroom, could not continue and asked to leave the court. Choy's requests to leave the court continued throughout her testimony and her aversion to providing testimony in response to the questions posed by Petitioner's counsel was obvious.

It is well established that the " credibility of the witnesses, the reconciliation of [*4]conflicting statements, a determination of which should be accepted and which rejected, the truthfulness and accuracy of the testimony, whether contradictory or not, [are] issues for the trier of the facts'" (Lelekakis v. Kamamis, 41 AD3d 662, 665, quoting Healy v Williams, 30 AD3d 466, 468). In this regard, the court finds Choy's testimony regarding her signature, or lack thereof, as well as her description of the execution ceremony were decidedly unconvincing.

Accordingly, the court does not find Choy's testimony concerning her signature, the execution ceremony, publication, attestation and the self-proving affidavits sufficient to rebut Petitioner's prima facie proof. Absent this testimony, the Objectant failed to overcome the presumptions in favor of due execution and to deny admission of the instrument at issue to probate (See generally, Matter of Fenster, 2012 NY Slip Op 33157[U]).

Moreover, upon review of all the evidence, the court is persuaded that the preponderance of the evidence, including the evidence adduced in addition to that provided by the attesting witnesses, demonstrated that all the issues presented for trial must be answered in the affirmative and that the instrument is, therefore, admitted to probate (See generally, In re Estate of Ziele, 242 AD2d 576).

Settle Decree.



Dated: September 28, 2015

SURROGATE



From:Francis A. Kahn



Sent:Wednesday, September 30, 2015 10:04 AM

To:Reporter

Cc:Hon. Peter J Kelly

Subject:Opinions submitted electronically.

Attachments:2011-3910-Chin-Post-Trial.wpd

Attached hereto is the following opinion: Matter of MERY SU LING CHEN, Queens County Surrogate's Court, September 28, 2015, Surrogate Peter J. Kelly, saved as: 2011-3910-Chin-Post-Trial.wpd

The attorneys on this matter were:

Jeffrey L. Nogee, Esq.

Anna Guiliano, Esq.

Attorneys for Petitioner

Ilene S. Cooper, Esq.

Robert M. Harper, Esq.

Attorneys for Respondent

Scott G. Kaufman, Esq.

Guardian ad Litem