The Matter of Lena A. Greene 932N.Y.S.2D 544 which was decided by Dutchess County Surrogate Pagones and subsequently reversed by the Appellate Division of the Supreme Court would seem to be pretty close to the model case for a successful will contest. The Appellate Division rightly points out that since the Will contained a self-proving affidavit attesting to the conditions under which it was executed, the petitioner’s had met their burden of proof to establish a prima facie case that the Will had been duly executed. The Court goes so far as to opine that even though "the record does not indicate that the will execution was supervised by an attorney, or even that an attorney drafted the will" and that there was therefore no "presumption of regularity" the combination of the fact that the Will contained an attestation clause and a self-proving affidavit was sufficient to establish a prima facie case.
That, however, is where things started to unravel for the petitioners. Evidently the objectant –who was not left as much money as petitioners– was able to introduce uncontroverted medical evidence that the decedent was unable to execute documents either before or after the date on which it was alleged that she had signed her will. This medical proof creates a triable issue of fact for a jury to decide just how genuine the decedent’s will might be.
Juries make these decisions after hearing the testimony of all parties and available witnesses. They also may get to evaluate medical records and listen to expert medical testimony. On November 15, 2011, this case was remanded back to the Surrogate’s Court for what will, in all probability be a very expensive trial.
What a jury will do is often impossible to predict and it’s usually a good idea to hedge one’s bets. One would think that sometime before that takes place, the parties will settle their case. Whether or not this sensible solution is reached here , only time will tell.