In re the Estate of Brady , 332 N.Y.S.2d 396 ( 1972 )

In a proceeding to probate as the decedent's will an instrument dated November 26, 1968, (1) the contestants appeal from so much of an order of the Surrogate’s Court, Kings County, dated May 20, 1971, as in part granted the proponent’s motion for summary judgment, i.e., as to the objections of improper execution, undue influence and fraud; and (2) the proponent cross-appeals from so much of the order as denied the motion as to the objection of lack of testamentary capacity. Order modified by adding thereto a provision that the proponent’s motion is also denied as to the objections of improper execution and undue influence and that a trial of those issues together with the issue of testamentary capacity shall proceed forthwith. As so modified, order affirmed, with $10 costs and disbursements to appellants-respondents against respondent-appellant personally. In our opinion, the proponent has failed to meet his burden of establishing the nonexistence of any triable issue of fact, except as to the objection of fraud (CPLR 3212, subd. [b]), and the record indicates that some of the proffered objections which are herein directed to be tried may be valid. Hopkins, Acting P. J., Shapiro, Christ, Brennan and Benjamin, JJ., concur.