An Objectant seeking to block a will’s admission to probate learned the hard way that there is nothing easy about doing this. The Appellate Division, Third Department held in In Re Doody 912 N.Y.S.2d 792(A.D. 3 Dept. 2010) that upon the petitioner making out a prima facie case for valid execution, conclusory allegations were not enough to raise a triable issue of undue influence or fraud.

The court ruled that the affidavits of the attesting witnesses that the decedent was of sound mind, understood what he was doing and executed the will in their presence and under the supervision of a licensed attorney  raised a presumption of testamentary capacity.

Your faithful lawblogger would note  at this juncture that the rite of execution of a will is incredibly important. That little "tap dance" that a competent attorney will do at the execution of a will can make all the difference. It is vitally important to question the testator in front of the witnesses and ascertain that he or she is aware of the will’s contents and wants the two individuals just introduced to act as witnesses. It is vitally important that the will is executed under the supervision and in the presence of the lawyer –and not in the presence of a para legal or secretary. Once it can  be shown that the rite of execution was duly followed, the will becomes far more difficult to set aside.

In this case, the objectant tried to raise an issue as to undue influence and fraud without introducing any hard evidence. Instead, he evidently claimed that it was necessary for the petitioner to introduce medical evidence as to the decedent’s mental capacity. However, the court ruled that the proof offered by petitioner that the will had been duly executed under the supervision of a licensed attorney and in the presence of the attesting witnesses who tendered their affidavits as to this was sufficient and the petitioner was under no obligation to supplement her proof with a doctor’s affidavit.

In fact, it would seem that objectant got it backwards on this one. Doctor’s affidavits, nurse’s notes and hospital records would possibly have done the trick to raise a triable issue of fact if introduced by the objectant. It is well-settled law that mere conclusory statements are not enough to defeat a motion for summary judgment where the movant has satisfied his or her burden of proof. Not coming to play with anything more than empty statements unsupported by hard evidence is always a sure ticket to defeat and disaster.