In In Re Estate of Edith R. Korn , 2006 Slip Op 117, The First Department of the Appellate Division of the New York State Supreme Court has affirmed a decision of New York County Surrogate Eve Preminger which granted summary judgment an dismissed objections to a probate petition .
The court restated the well-settled principle that summary judgment is appropriate where the proponent of the will establishes a prima facie case and the objectant fails to raise a triable issue of fact. A prima facie case was found to have been established by the the introduction of a self-executing affidavit which creates a presumption that the will was duly executed. In addition, the testimony of the will’s witnesses and attorney draftsman established that the testatrix was not under undue influence and was “bright, intelligent and strong-minded”. It was therefore not possible for the objectants to defeat the will with conclusory and speculative evidence.