Estate of Windheim v. Huggard — 192 A.D.2d 337

Majority

p. 337

In the Matter of the Estate of Minerva D. Windheim, Deceased. Daniel Rhoades, Appellant, v Elizabeth A. Huggard et al., Respondents.

[596 NYS2d 678]

—Decree, Surrogate’s Court, New York County (Eve Preminger, S.), entered on or about January 15, 1992, which, after a non-jury trial, granted probate of the subject will, unanimously affirmed, without costs.

The proponents of the will met their burden, through the testimony of the subscribing witnesses, of establishing a prima facie case of testamentary capacity (see, Matter of Kumstar, 66 NY2d 691 , 692), thus shifting the burden to the objectant to disprove testamentary capacity (see, Matter of Kaplan, 50 AD2d 429 , 431, affd 41 NY2d 870 ; Matter of Whalen, 87 AD2d 733 , 734). Here, the objectant did not offer sufficient affirmative proof of a lack of testamentary capacity. Accordingly, the will was properly admitted to probate.

We have considered the objectant’s remaining arguments and find them to be without merit. Concur — Murphy, P. J., Milonas, Rosenberger and Wallach, JJ.

Cases cited

In re the Estate of Kumstar 66 NY2d 691 N.Y. 1985-10-15 at 692 p. 337
In re the Estate of Kaplan 50 AD2d 429 N.Y. App. Div. 1976-01-15 at 431 p. 337