State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: April 16, 2015 519834 

________________________________

In the Matter of the Estate of 

JOSEPHINE YEN, Deceased.

JENNIFER YEN,

Appellant; MEMORANDUM AND ORDER

ANDREW YEN,

Respondent.

________________________________

Calendar Date: February 18, 2015

Before: Peters, P.J., Lahtinen, Garry and Lynch, JJ.

__________

Whiteman Osterman & Hanna, LLP, Albany (Margaret J. Gillis

of counsel), for appellant.

Miller Mayer, LLP, Ithaca (John Moss Hinchcliff of

counsel), for respondent.

__________

Garry, J.

Appeal from an order of the Surrogate's Court of Tompkins

County (Cassidy, S.), entered June 3, 2014, which granted

respondent's motion for summary judgment dismissing the petition.

Following the death of decedent in October 2013,

petitioner, who was decedent's granddaughter, commenced this

proceeding seeking probate of a 2012 will that named her as the

executor and bequeathed all of decedent's property to her. 

Respondent – who is decedent's son and petitioner's father –

filed objections to the probate of the will alleging that it was

not duly executed, among other things, and thereafter moved for

summary judgment. Following an examination of the attesting
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witnesses pursuant to SCPA 1404, Surrogate's Court granted

respondent's motion and dismissed the petition. Petitioner

appeals.

To be duly executed, a will must be subscribed by the

testator in the presence of at least two attesting witnesses, or

the testator must acknowledge his or her signature to the

witnesses. The testator must also declare to each witness that

the document is the testator's will (see EPTL 3-2.1 [a]). Here,

the subject will contains an attestation clause. However,

Surrogate's Court must nonetheless examine the attendant

circumstances to determine the validity of the will, and it is

well established that the attestation clause standing alone will

not suffice to meet the proponent's burden of demonstrating due

execution by a preponderance of the evidence if affirmative proof

reveals that the required elements were lacking (see Matter of

Turell, 166 NY 330, 337 [1901]; Matter of Falk, 47 AD3d 21, 26

[2007], lv denied 10 NY3d 702 [2008]). In this analysis, "the

testimony of the attesting witnesses is entitled to great weight"

(Matter of Collins, 60 NY2d 466, 473 [1983]).

The subject will was signed while decedent was residing in

an assisted living facility and bears the signatures of two

attesting witnesses who worked at the facility and a third

witness who resided there. Decedent's signature appears on page

27; the attestation clause begins immediately below her signature

and then continues onto the final page, where the witnesses'

signatures appear. In support of his motion for summary

judgment, respondent submitted, among other things, transcripts

of the SCPA 1404 examinations of these witnesses. The first

witness, who worked at the facility as an assistant recreation

coordinator, testified that decedent approached him in a hallway

and asked him to sign a document that she stated was her will. 

The document was folded in such a way that the only page the

witness saw was the page that he signed. He testified that he

signed the page while standing in the hallway, did not look at

any other part of the document, and did not know whether decedent

had signed it before he did. As decedent neither showed her

signature to this witness nor signed the will in his presence,

his signature as an attesting witness does not meet the statutory

requirements (see EPTL 3-2.1 [a] [2]; Matter of Bender, 58 Misc
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2d 324, 325-326 [Sur Ct, Cattaraugus County 1968]; Margaret V.

Turano, Practice Commentaries, McKinney's Cons Laws of NY, Book

17B, EPTL 3-2.1 at 8; compare Matter of Dujenski, 147 AD2d 958,

958 [1989]).

The second attesting witness, who resided in the assisted

living facility, testified that she stopped to chat with decedent

after encountering her in a hallway, and decedent asked her to

sign a paper. The second witness agreed to do so, as she

explained, because "people from foreign countries who immigrate

[are] always signing things."1 As to whether she knew that the

document was a will, she described it as a "handful of papers"

and stated, "I'm not saying that I know that I was witnessing the

signing of a will. Somehow will just didn't enter into it." She

stated that she "skimmed" through the document before signing it

and conjectured that there might have been a title that she could

have seen while doing so. No reasonable reading of this

speculative statement, nor of any other part of her testimony,

establishes that she knew that the document was decedent's will. 

This second witness further testified that she did not recall

seeing decedent's signature on the document or hearing decedent

state that she had signed it. Instead, she stated that the only

page that she examined was the page with witness signatures; as

to this page, she recalled that the first witness was still

nearby and that his signature was already present at the top of

the page when she signed it. As decedent did not tell the second

witness that the document she was signing was her will and the

witness did not see decedent's signature, her signature also

fails to meet the statutory requirements (see Matter of Turell,

166 NY at 337-338; Matter of Mackay, 110 NY 611, 614-615 [1888];

Matter of Pirozzi, 238 AD2d 833, 834 [1997]; Matter of Griffin,

81 AD2d 735, 735 [1981], lv denied 54 NY2d 602 [1981]).

Respondent's submissions provide affirmative proof that two

out of three of the attesting witnesses did not sign the will in

conformity with the statutory requirements; accordingly, he met

his prima facie burden on summary judgment (see Matter of Levy,

169 AD2d 923, 924 [1991]; Matter of Redway, 238 App Div 653, 655

1 Decedent was born in China. 
-4- 519834 

[1933], affd 265 NY 519 [1934]; Matter of Daly, 93 Misc 2d 241,

245-246 [Sur Ct, Albany County 1978]).2 In opposition,

petitioner's submissions consisted solely of affidavits from

individuals who were not present when the will was signed. These

affidavits addressed issues such as the quality of decedent's

relationship with respondent and tended to establish that, before

signing the subject will, decedent had made statements declaring

her intent to write a new will and to alter the provisions of her

prior will. It was further established that decedent had sent

the subject will to petitioner's husband, an attorney, after it

was signed and more than one year prior to her death. However,

petitioner's submissions failed to raise any factual issues

relative to whether the will was duly executed, and failed to

reveal that there is any evidence available that would or could

demonstrate due execution (see SCPA 1405 [3]; Matter of Collins,

60 NY2d at 469). Accordingly, although summary judgment in

contested probate proceedings is unusual, we find that it was

properly granted here (see Matter of Levy, 169 AD2d at 924;

Matter of Daly, 93 Misc 2d at 245-246; Matter of Heaney, 75 Misc

2d 732, 735 [Sur Ct, Nassau County 1973], affd 44 AD2d 828

[1974]).

Peters, P.J., Lahtinen and Lynch, JJ., concur.

2 Although unnecessary for this determination, we note that

there was a self-proving affidavit executed by the third

attesting witness asserting that she had seen decedent's

signature on the will. However, during the SCPA 1404 hearing she

provided testimony to the contrary, stating that she had been

mistaken, and that the signature she had seen was that of the

first attesting witness, not that of decedent. She testified

that the only page of the will that she saw when she signed it

was the page signed by the witnesses, and that she did not see

the page signed by decedent. Her testimony as to whether

decedent told her that she had signed the will was contradictory

and inconsistent.
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ORDERED that the order is affirmed, with costs.

ENTER:

Robert D. Mayberger

Clerk of the Court