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Matter of Wilkinson 2010 NY Slip Op 33075(U) September 30, 2010 Surrogate's Court, Nassau County Docket Number: 355006 Judge: John B. Riordan Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication.

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SURROGATE'S COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU ---------------------------------------------------------------------------x In the Matter of the Probate Proceeding of the Last Will and Testament of KENNETH WILKINSON a/k/a KENNETH JAMES WILKINSON, Deceased. --------------------------------------------------------------------------x

File No. 355006 Dec. No. 26633

Before the court is a motion for summary judgment filed by Kerri Consi, a daughter of decedent Kenneth Wilkinson and the objectant to the petition for probate. The probate petition was brought by Barbara Stone, the sister of decedent and the nominated executor under his last will and testament. Preliminary letters issued to Stone by order of this court dated February 25, 2009, and were most recently extended on August 19, 2010. For the reasons set forth below, the motion is denied, and summary judgment is granted to Stone on the issue of due execution. Background Decedent died on February 3, 2009, survived by four children, viz., his three sons, Kevin Wilkinson, Stephen Wilkinson and Jeffrey Wilkinson, and his daughter, Kerri Consi, the objectant and movant herein. The last will and testament of decedent which was offered for probate bears the date November 8, 2007. In his will, decedent directed that his entire estate be distributed to his sister, Stone. The document reflects that the attesting witnesses were (1) George R. Caso, II, who was also the draftsperson of the will and who represented the decedent in his divorce proceeding, and (2) Barbara Deters Kern, who served then and now as Caso's legal assistant.

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Consi's Objections to the Will On December 28, 2009 Consi filed multiple objections to the will, focusing primarily on an alleged lack of due execution. Consi's counsel examined the two attesting witnesses on December 17, 2009. Consi's Motion for Summary Judgment The present motion for summary judgment upon objections to probate and dismissal of the proceeding followed a lengthy delay in which a settlement was reached concerning payment of decedent's non-probate death benefits, but no settlement was reached in connection with the distribution of decedent's probate property, despite extensive efforts. In her affidavit annexed to the motion, Consi alleges that Stone "cannot appropriately demonstrate due execution of the purported last will and testament" (Affidavit of Consi, Paragraph 3). In support of this statement, Consi offers the following: A. One witness cannot recall the will signing ceremony. In Paragraph 8 of her affidavit, movant notes that while Caso testified to his actual recollection of the will ceremony, Kern, despite her memory of decedent, did not testify based upon her recall of the specific execution but relied instead on her personal knowledge of the usual office practice, her recognition of the signatures, and her execution of a self-proving affidavit. B. The self-proving affidavit was improperly notarized. Consi notes that Caso testified that his usual practice was to have his secretary or Kern take the executed self-proving affidavit down the hall to another attorney's office, where Joan

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McDermott, a notary public who was familiar with their individual signatures, would notarize the affidavit, after which the executed will would be returned to the office and given to the client (Deposition of Caso 13:16:02-16). It is McDermott's notarization which appears on the selfproving affidavit attached to the propounded will. Consi asserts that the practice of sending a self-proving affidavit with two signatures down the hall to another law firm, accompanied by one affiant or a secretary, where the two signatures on the affidavit were to be notarized, is improper. Accordingly, she argues, the self-proving affidavit affixed to the propounded will "could not substitute for an actual or refreshed recollection of due execution of a purported testamentary instrument" (Affidavit of Consi, paragraph 14 [emphasis in original]). Consi argues that the

invalidation of the self-proving affidavit due to alleged notary misconduct, when combined with the inability of Kern to recall the will execution, leaves Caso as the sole witness to the will. On this basis, Consi asserts that the court should refuse to admit the propounded will to probate. C. The testator failed to initial each page of his will. Consi references Kern's testimony that it was Caso's usual practice to have the testator initial each page of his will (Deposition of Kern 12:53:30-50), and that decedent's will is only initialed on the first page, without explanation for this departure from usual office practice. D. The proponent's counsel did not produce her for examination. Consi also claims that Caso refused to produce the proponent, Stone, for examination, and that Stone has made admissions to decedent's children which raised the possibility of another will having been executed by the decedent.

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Summary Judgment Summary judgment is a drastic remedy (Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957]), awarded only sparingly (Ronder & Ronder, P.C. v Nationwide Abstract Corp., 99 AD2d 608 [3d Dept 1984]), and only when there are clearly no triable issues of fact presented (NBT Bancorp. v Fleet/Norstar Fin. Group, 87 NY2d 614, 625 [1996]). In a proper case, however, the court's granting of a summary judgment motion is not only appropriate, but denial of such a motion is reversible error, even in a probate proceeding (Matter of Greenspan, 43 AD2d 998 [3d Dept 1974], affd 36 NY2d 737 [1975]). To prevail on a motion for summary judgment, the movant must establish his or her right to a directed verdict as a matter of law (Friends of Animals v Assoc. Fur Manufacturers, Inc., 46 NY2d 1065, 1067 [1979]). If the movant meets this threshold, the burden then shifts to the party moved against to lay bare his or her proof in opposition in evidentiary form (Matter of Bank of New York, 43 AD2d 105, 107 [1st Dept 1973], affd 35 NY2d 512 [1974]). The party moved against may not successfully rely merely on conjecture or surmise (Matter of Rosen, 291 AD2d 562 [2d Dept 2002]); a mere hope that somehow or other the objectant will be able to substantiate his or her allegations at trial is insufficient to deny summary judgment to a proponent who has made out a prima facie case (Jones v Surrey Coop. Apts., Inc., 263 AD2d 33 [1st Dept 1999]; Kennerly v Campbell Chain Co., 133 AD2d 669 [2d Dept 1987]). Issues Raised in Consi's Motion for Summary Judgment The motion for summary judgment presently before the court raises the following issues: 1. Is the self-proving affidavit affixed to decedent's will a nullity for failure of the affirming

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witnesses to personally appear and swear before the notary public? 2. If the affidavit is a nullity, but the will need not be denied probate for lack of a valid selfproving affidavit, must the will then be denied probate on the ground that only one of the two attesting witnesses has an actual recollection of the will ceremony? 3. Can summary judgment be granted, or this matter proceed to trial, on the basis of either of the other assertions made by movant: a. The testator only initialed the first page of the will. b. Caso failed to produce the proponent for examination. Analysis In connection with the motion for summary judgment, the court's analysis of and determination as to each of the above issues is as follows: 1. Is this self-proving affidavit a nullity? SCPA 1406 provides that a witness to a will execution may "make an affidavit before any officer authorized to administer oaths stating such facts as would, if uncontradicted establish the genuineness of the will, the validity of its execution . . . " (SCPA 1406 [1] [emphasis added]). The officer authorized to administer oaths, typically a notary public, certifies that the subscriber appeared before her and swore to the truth of the contents by affixing a clause called a jurat, which is "generally defined as a certificate added to an affidavit stating when, before whom, and where it was made" (Am Jur, Affidavits

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