There can be no doubt that the objectants established that on April 26, 1972 the decedent suffered from senile dementia and their expert gave the further opinion that he so suffered on the day he made the will as a matter of pure opinion. Of course, there was no medical evidence to the contrary because the decedent was not given a medical examination on July 17, 1972 and it was established that the impairment was permanent. The psychiatrist, however, also testified that senile people have lucid intervals; that such a person’s content of thought may improve on remission; that a lucid interval changes a person’s judgment; and that to determine a patient’s condition at such a time, a doctor would have to see the patient in a lucid interval. The courts have long recognized that proof of senile dementia does not establish a lack of testamentary capacity at a given time (Matter of Beneway, 272 App Div 463, 467-468). The medical evidence herein established senile dementia but, the question remains as to whether the decedent had a lucid interval at the time the will was made.
In this regard the majority recites that the proponents, through the subscribing witnesses and the attorney who interviewed the decedent on the day in question, drafted the will and supervised the execution thereof, "established a prima facie case of testamentary capacity.” What the majority does not recognize is that the prima facie case establishes a lucid interval in terms of senile dementia and the record is devoid of any proof that the decedent did not enjoy such a lucid interval at the time the will was prepared and executed. The medical opinion of the psychiatrist is immaterial and irrelevant as it is not based upon the fact of a lucid interval on July 17, 1972. In this connection it is noteworthy that the nurse’s notes as reviewed by Dr. Elide in his testimony for July 16, 1972 to July 18, 1972 indicated these were "good” days.
*433The record establishes that the decedent had only nieces and nephews as potential intestate heirs of his estate. The attorney who prepared the will on July 17, 1972 did so in the presence of the decedent and testified that decedent discussed with him the general outline of his assets at that time. The will selects a particular niece and nephew who had accompanied decedent to the attorney’s office to receive the estate and recites a sound reason for their selection in paragraph three thereof.
It should be noted that whatever evidence there is in this record as to delusions or paranoia, the record established that the problem was being controlled by medicine on July 17, 1972 and the record will not support an inference that would connect the particular disposition in the will with such delusions or paranoia as they existed prior to July 17, 1972. (Cf. Matter of Honigman, 8 NY2d 244; Matter of Etoll, 30 AD2d 224.)
The sole evidence in this record is that the decedent had a lucid interval at the time he made the last will and testament and had testamentary capacity. The Surrogate should have so held and the submission of the question to the jury was erroneous as there was no factual issue. The apparent last wishes of a person should not be set aside upon mere speculation that he was then incompetent (Matter of McClear, 214 App Div 683). In any event, the jury finding would be against the weight of the evidence (Matter of Beneway, 272 App Div 463, supra).
The decree should be reversed and the matter remitted to the Surrogate with instructions to admit the will of July 17, 1972 to probate.
Koreman, Main and Reynolds, JJ., concur with Kane, J.; Herlihy, P. J., dissents and votes to reverse in a separate opinion.
Decree affirmed, with costs to all parties filing briefs, payable out of the estate.