                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: January 8, 2015                   518557
________________________________

In the Matter of the Estate of
   ANDREW WALKER, Also Known
   as ANDREW S. WALKER,
   Deceased.

NORA WALKER, Individually and               MEMORANDUM AND ORDER
   as Executor of the Estate
   of ANDREW WALKER, Deceased,
                    Appellant;

MARK WALKER et al.,
                    Respondents.
________________________________


Calendar Date:   November 13, 2014

Before:   Peters, P.J., Lahtinen, Garry, Rose and Egan Jr., JJ.

                             __________


      Meagher & Meagher, Binghamton (Frederick J. Meagher Jr. of
counsel), for appellant.

      Levene, Gouldin & Thompson, LLP, Binghamton (Gary Farneti
of counsel), for respondents.

                             __________


Peters, P.J.

      Appeal from a decree of the Surrogate's Court of Broome
County (Guy, S.), entered September 13, 2013, which denied
probate to an instrument purporting to be the last will and
testament of decedent.

      On January 19, 2012, Andrew Walker (hereinafter decedent),
who had been experiencing respiratory difficulties caused by
asbestosis, was discharged from a hospital in order to spend his
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last days at home. On January 25, 2012, decedent executed a will
that altered the disposition of a parcel of property from that
directed in his two prior wills by, among other things, devising
half of the property to petitioner, his wife.1 A few days later,
decedent passed away. In March 2012, petitioner commenced this
proceeding seeking to probate the January 2012 will. After a
hearing pursuant to SCPA 1404 at which the two witnesses to the
will testified, respondents, decedent's children from a prior
marriage, filed objections to the will, arguing that it was not
properly executed, decedent lacked capacity and petitioner
exercised undue influence over decedent. Following petitioner's
unsuccessful summary judgment motion to dismiss the objections,
preliminary letters testamentary were issued to petitioner and
the matter proceeded to a bench trial. Thereafter, Surrogate's
Court denied the admission of the will to probate and revoked the
preliminary letters, finding that petitioner had failed to
establish due execution because there was no competent evidence
linking the proffered instrument to decedent's intentions.
Petitioner now appeals and we affirm.

      "In order for a will to be duly executed and attested in
New York, the testator must sign the document at the end; the
testator must sign or acknowledge the signature in the presence
of the attesting witnesses; the testator must declare to each of
the attesting witnesses that the instrument is his or her will;
and there must be two attesting witnesses who shall, within 30
days, attest the testator's signature and, at the request of the
testator, sign their names and affix their residence addresses"
(Matter of Lewis, 114 AD3d 203, 211 [2014], lv granted 23 NY3d
906 [2014]; see EPTL 3-2.1). Before admitting a will to probate,
Surrogate's Court must be satisfied that the will has been
validly executed (see SCPA 1408 [1]; Matter of Doody, 79 AD3d


    1
        The two prior wills were executed in December 2007 and
March 2011. The 2007 will gave the property in fee to two of his
three children, respondents Mark Walker and Michelle Peters. The
2011 will gave the property in fee to Walker, Peters and the
daughter of respondent Andrea Knox, his third child. All three
wills granted a "life use" of said property to petitioner.
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1380, 1381 [2010]; Matter of Halpern, 76 AD3d 429, 431 [2010],
affd 16 NY3d 777 [2011]; Matter of Pirozzi, 238 AD2d 833, 834
[1997]), "that the mind of the testator accompanied the act, and
that the instrument executed speaks his [or her] language and
really expresses his [or her] will" (Rollwagen v Rollwagen, 63 NY
504, 517 [1876]; accord Matter of Watson, 37 AD2d 897, 898
[1971]; see Matter of Minervini, 297 AD2d 423, 424 [2002]; Matter
of Salvan, 132 AD2d 662, 663-664 [1987]; Matter of Simone, 53
Misc 2d 314, 317 [1967]; Matter of De Castro, 32 Misc 193, 194
[1900]). The proponent of a will bears the burden of proving its
validity by a preponderance of the evidence (see Matter of
Moskowitz, 116 AD3d 958, 959 [2014]; Matter of Pirozzi, 238 AD2d
at 834).

      Petitioner testified that, sometime between January 20,
2012 and January 25, 2012, decedent decided that he wished to
change the provision of his will devising his real property;
accordingly, petitioner wrote down decedent's wishes and
delivered them to the office of attorney Frederick J. Meagher Jr.
On January 25, 2012, Gerald Collins, decedent's longtime friend,
retrieved the new version of the will from Meagher's office and
brought it to petitioner and decedent's home for decedent to
execute. Meagher, who is representing petitioner in this
proceeding, informed Surrogate's Court that the drafting of the
2012 will was "done jointly" by himself and his secretary. The
court described the will as having been prepared by an attorney.
At oral argument on this appeal, however, Meagher denied that he
represented decedent or that he had drafted either the 2011 will
or the 2012 will. With respect to the 2012 will, Meagher
acknowledged that his secretary typed the will but stated that he
never reviewed or approved it. He asserted that his office was
involved in only a "ministerial capacity," likening the activity
to "LegalZoom."

      As to execution of the will, petitioner admitted that she
did not confirm whether the will presented to decedent conformed
to the instructions that decedent had given to her. Collins
testified that decedent did not discuss the will changes with
him, nor did he specifically request Collins to witness the will.
Rather, Collins indicated that, because he had been a witness to
decedent's prior will, it was "assumed" that he would act as
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such. He noted that he was "surprised" that decedent altered the
will provision devising his real property, as it was always his
understanding that decedent wished for respondents to have the
property. Robert Wilcox, another of decedent's friends, happened
to be visiting decedent at that time and Collins requested that
Wilcox act as a witness to the will's execution. Collins
explained that he and Wilcox each sat next to decedent, he held
the will in front of decedent and read it aloud twice to
decedent. Collins stated that he asked decedent, "do you know
what the changes are," "you are leaving [petitioner] half the
cottage,"2 and that decedent responded affirmatively to these
questions and indicated that he did not want to discuss the will
further. Collins handed the will to decedent, who signed it, and
then Collins and Wilcox each signed it as witnesses. While
Wilcox's testimony regarding the will execution was substantially
similar to that of Collins, he admitted that decedent did not
declare that the will was his own, but that decedent signed the
document after being asked if he understood its contents.3

      The evidence revealed that decedent never personally
communicated with Meagher or the secretary at the law office
where the will was drafted, and it was undisputed that no one
from that office was present for the execution of the will.
Meagher admitted that he never saw the notes that petitioner
delivered to his office and could not produce any such notes that
petitioner was able to identify as her own. In light of the
uncertainty surrounding the drafting and execution of this will,
we decline to disturb the decree of Surrogate's Court denying
admission of the will to probate (see Rollwagen v Rollwagen, 63
NY at 517-519; Matter of Salvan, 132 AD2d at 663-664; compare
Matter of Minervini, 297 AD2d at 424).



     2
        The changes were in fact more substantial than
articulated by Collins.
     3
        The witness affidavit executed by Collins and Wilcox is
inconsistent with this testimony in that it represents that
decedent "declared the same to be his last [w]ill and
[t]estament."
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Lahtinen, Garry, Rose and Egan Jr., JJ., concur.



ORDERED that the decree is affirmed, with costs.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
