In re the Estate of Ziele

In a contested probate proceeding, the objectant appeals from a decree of the Surrogate’s Court, Queens County (Nahman, S.), entered September 16, 1996, which, upon dismissing the objection to probate, admitted the decedent’s will to probate. Ordered that the decree is affirmed, with costs payable by the petitioner. The objectant contends that the testator’s will was not duly executed since the execution ceremony was performed in English and one of the witnesses did not fully understand English at the time the will was executed. The same witness could not recall the events of the execution when he testified at the hearing to determine whether the will was duly executed. The evidence fully supported the Surrogate’s finding that the will was properly executed. Where an attesting witness has forgotten the occurrence or testifies against the execution of the will, and at least one other attesting witness has been examined, the will may be admitted to probate upon the testimony of the other witness and such other facts as would be sufficient to prove the will (see, SCPA 1405 [3]). The attorney-draftsman, who was also an attesting witness, testified that the requirements of EPTL 3-2.1 were complied with. The facts and circumstances surrounding the will ceremony confirmed this testimony. The witness whose memory had failed recognized his signature and demonstrated that, although he did not remember the execution ceremony, he knew about the terms of the will. Moreover, the execution ceremony was supervised by an attorney and therefore it is presumed that the ceremony complied with the essential provisions of the statute (see, e.g., Woolley v Woolley, 95 NY 231; Matter of Esberg, 215 AD2d 655; Matter of Posner, 160 AD2d 943). O’Brien, J. P., Sullivan, Altman and McGinity, JJ., concur. [As amended by unpublished order entered Mar. 9, 1998.]