Clearly mere allegations with respect to the raised objections will no longer be enough to defeat a motion for summary judgment made by the will's proponent at the conclusion of discovery. Admissible evidence in support of the motion, as well as in opposition thereto must be submitted, and as an advocate, you must lay your case and your proof bare such that summary judgment can be decided in your client's favor, keeping in mind the shifting burdens of proof and the standard of proof required on particular objections.
One can speculate that perhaps the current state of the economy and the consequent severe cutback in judicial resources has made it only natural that the Surrogate's Courts would utilize both the burden of proof that one must bear in making a motion for summary judgment, and the quality of the proof relied upon by all parties, to limit the matters that are tried to those with legitimate, material issues of fact.
Whatever the reason behind this shift in judicial temperament, while a motion for summary judgment clearly remains a tool in one's arsenal when seeking to avoid or limit issues for trial, it is clear that change is upon us. That change must be carefully considered when deciding whether or not to recommend to a client that a summary judgment motion be brought prior to trial of a will contest.
Mary E. Mongioi is counsel to Forchelli, Curto, Deegan, Schwartz, Mineo & Terrana, where she practices in the tax, trust and estates department.
1. The burden of proof for a movant on summary judgment is that he or she must make a prima facie showing of entitlement to judgment as a matter of law, submitting sufficient evidence to demonstrate the absence of any material issues of fact. Once that burden has been satisfied the burden shifts to the opposition, which must then show that questions of fact exist with respect to the movant's claims which preclude the granting of the motion for summary judgment. See Alvares v. Associates Fur Mfrs., 46 N.Y.2d 1065 (1979).
2. Matter of Feller, 2010 N.Y. Slip. Op. 50001(U).
3. Id. (in reliance on In re Douglas' Will, 193 Misc. 623, 631-32 (1948)).
5. See Matter of Malone, 46 A.D.3d 975 (2007); Matter of Fiumara, 47 N.Y.2d 845, 846 (1979); Matter of Panek, 237 A.D.2d 82, 84 (1997).
6. Matter of Feller, 2010 N.Y. Slip. Op. 5001(U); see also In re Minasian, 149 A.D.2d 511 (1989); In re Schaffer, 148 A.D.2d 540 (1989).
7. In re Capuano, 93 A.D.3d 666, 939 N.Y.S.2d 553 (2d Dept. 2012).