Minor Discrepancies No Longer Defeat the Presumption of Regularity in Will Executions – A Detailed Commentary on Matter of Ostrander (2025 NY Slip Op 02382)

1. Introduction

The Appellate Division, Third Department’s decision in Matter of Ostrander (237 AD3d 1444) clarifies and strengthens two core doctrines in New York probate practice: (1) the “presumption of regularity” attaching to wills drafted by attorneys and accompanied by self-proving affidavits; and (2) the evidentiary burden an objectant must satisfy to establish undue influence, especially within a familial context. The dispute pitted Alison M. O. Stark, executor and one of the decedent’s two daughters, against her sister, Carolyn M. Postell, who challenged the 2020 will that left the 210-acre family farm solely to Stark. After Surrogate’s Court granted summary judgment dismissing Postell’s objections, the appellate court affirmed, crystallising important procedural and substantive probate principles.

2. Summary of the Judgment

Execution Presumption: Because the 2020 will was attorney-drafted and accompanied by self-executing affidavits, a strong presumption arose that statutory formalities (EPTL 3-2.1) were satisfied.
No Rebuttal Evidence: Minor inconsistencies in the attestation clause and affidavits (who signed in whose presence) were deemed insufficient “positive proof” to rebut that presumption.
Confidential Relationship & Undue Influence: Objectant failed to demonstrate (a) a confidential relationship with inequality/control and (b) facts showing dominion or coercion by the proponent. Even if such a relationship existed, the record negated any undue influence.
Result: Order admitting the 2020 will to probate affirmed; objections dismissed with costs.

3. Analysis

3.1 Precedents Cited and Their Influence

Matter of Dralle, 192 AD3d 1239 (3d Dept 2021) – Reaffirmed that an attorney-drafted will with self-proving affidavits gives rise to the presumption of due execution. Ostrander relies heavily on this rationale.
Matter of Linich, 213 AD3d 1 (3d Dept 2023) – Provided a recent statement on when summary judgment is proper in contested probate; cited as procedural authority.
Matter of Giaquinto, 164 AD3d 1527 (3d Dept 2018), aff’d 32 NY3d 1180 (2019) – Quoted for the rule that familial ties alone do not create a confidential relationship or presumption of undue influence.
Matter of Kotsones, 185 AD3d 1473 (4th Dept 2020), aff’d 37 NY3d 1154 (2022) – Allocates burdens: objectant must first prove confidential relationship.
Matter of Cameron, 126 AD3d 1167 (3d Dept 2015) – Illustrates that discrepancies in witnessing protocol, absent more, will not invalidate a will.

Together, these authorities created a doctrinal platform that the Third Department in Ostrander merely needed to extend slightly: trivial documentary inconsistencies alone cannot generate an issue of fact.

3.2 Court’s Legal Reasoning

Prima Facie Showing for Probate
- Proponent produced: (a) original 2020 will; (b) attorney and legal assistant’s self-proving affidavits; (c) SCPA 1404 testimony verifying statutory formalities.
- Under Dralle, this satisfied the initial burden.
Rebuttal Attempt by Objectant
- Objectant highlighted mismatched language regarding which witness signed in whose presence.
- Court labelled such discrepancies “insufficient” per EPTL 3-2.1 (a)(4) & corresponding case law, absent evidence the signatures occurred more than 30 days apart or outside each other’s presence.
Confidential Relationship & Undue Influence
- Court applied the two-step burden-shifting framework (Kotsones): (i) Objectant must prove a confidential relationship; (ii) burden then shifts to proponent to prove absence of undue influence.
- Evidence showed decedent was independent: lived separately, managed finances, clear cognition. Petitioner neither drafted nor attended execution of the will.
- Objectant’s proof “largely speculative”: allegations of greed, threats to move farm operations, opinion testimony.
Summary Judgment Standard
- Matter of Lowrey, 225 AD3d 964 (3d Dept 2024): Summary judgment, though “rare,” is proper where no genuine conflicts exist.
- Court found record devoid of triable fact.

3.3 Impact on Future Probate Litigation

Elevated Threshold to Rebut Presumption: After Ostrander, parties attacking execution formalities must marshal direct evidence—mere paperwork inconsistencies will rarely suffice.
Family Farm & Succession Planning: Decision re-emphasizes the validity of a testator’s intent to preserve family land even when it departs from prior trust arrangements.
Encourages Early Summary Judgment Motions: Third Department signals receptiveness to disposing of weak objections at summary stage, trimming costly probate delays.
Clarifies “Confidential Relationship” Test: Reinforces that normal parent-child interactions, even where child assists in business, do not automatically create controlling dominance.

4. Complex Concepts Simplified

Presumption of Regularity: A legal shortcut: when a will is attorney-drafted and each witness signs a sworn affidavit, the law assumes all legal formalities were met. The challenger must supply strong evidence to the contrary.
SCPA 1404 Examination: Pre-trial depositions of the drafting attorney and witnesses. They furnish details of execution, mental capacity, and absence of undue influence.
Confidential Relationship: One where one party trusts and relies heavily on another who might overpower or manipulate them (e.g., legal guardian & ward, caregiver & infirm). Merely being a child or spouse usually is not enough.
Undue Influence: Pressure that overcomes the testator’s free will, making the will reflect someone else’s desires. Courts look for opportunity, motive, and acts of manipulation.
Self-Executing (Self-Proving) Affidavit: A sworn statement signed by each witness at signing or shortly after, confirming the will was executed properly. Eliminates need to locate witnesses later.

5. Conclusion

Matter of Ostrander is not revolutionary but subtly recalibrates New York probate litigation. The Third Department:

Solidified that minor drafting or attestation discrepancies will not by themselves create triable issues; challengers need affirmative, concrete proof.
Clarified that familial closeness and an heir’s business dealings with a parent do not, without more, constitute a confidential relationship or undue influence.
Encouraged courts to apply summary judgment more boldly when probate objections are speculative.

Practitioners should ensure self-proving affidavits accompany every will and gather contemporaneous evidence of testator independence to withstand potential challenges. Objectants, conversely, must conduct rigorous pre-filing investigations—mere suspicions will no longer survive judicial scrutiny in the wake of Ostrander.

Minor Discrepancies No Longer Defeat the Presumption of Regularity in Will Executions – Commentary on Matter of Ostrander (2025)