In its decision in In Re Estate Of Walker914N.Y.S.2d 379, the Appellate Division’s Third Department has reminded us just how hard it can be to successfully challenge a will. The court reversed a decision of the Delaware County Surrogate denying a petitioner’s motion for summary judgment dismissing objections to the decedent’s will.

In this action, the decedent had left her entire estate to her grandson in an earlier will but, at his untimely death, executed a new will leaving her estate to her great grandson Anthony Walker. In doing so, she specifically disinherited the respondent who filed objections claiming a lack of testamentary capacity, fraud and undue influence.

The appellate court held that the execution of a self-executing affidavit by attesting witness created a presumption of due execution and prima facie evidence of the facts attested to. Since the standard self-executing affidavit attests to the testator having been of sound and disposing mind and memory, the burden of proof effectively shifted to the objectant at this point. It was found that the respondent was unable to offer any proof that there was fraud or undue influence other than evidence of a speculative nature. This is always insufficient to defeat a motion for summary judgment. Additional evidence offered by the petitioner in the form of an affidavit from a home health aide that the testator, in spite of her illness, was mentally acute at all times and engaged in various daily activities, it was the determination of the appellate court that the petitioner had sufficiently met her  burden and that the lower court should have granted the motion to dismiss initially.