(dissenting). As the majority notes, a party seeking to invalidate an antenuptial agreement has the burden of coming forward with evidence demonstrating fraud. Such fraud will not be presumed "in the absence of proof of facts from which concealment or imposition may reasonably be inferred * * * [s]uch a presumption must have as its basis evidence of overreaching — the concealment of facts, misrepresentation or some form of deception” (Matter of Phillips, 293 NY 483, 491).
However, the Court of Appeals, in Phillips (supra), found that the Surrogate properly upheld an antenuptial agreement only after trial of the issues presented. The opinion there is replete with references to the "record”. In this matter before us, on the other hand, we are considering a motion for summary judgment, where black letter law posits the court’s function as issue finding rather than issue determination (Esteve v Abad, 271 App Div 725).
Here, the Surrogate justifiably decided that issues were raised on the basis of statements in petitioner’s deposition that he never signed the agreement, did not understand its terms, had little literacy in English and did not recall any occurrence or discussion at any time in which he agreed to waive his right to share in his wife’s estate. Although the majority finds petitioner’s "posture of amnesia” insufficient to raise an issue of fact, it appears that the majority’s characterization of petitioner’s failure to remember events which took place 15 years before his wife’s death is, in effect, a premature decision of an issue of fact.
The majority has decided that petitioner’s claim of overreaching rests on nothing but argument and speculation. The fact remains that in the agreement petitioner waives all rights in decedent’s estate while decedent specifically retains all her rights and claims in his estate. It is also undisputed that petitioner was not represented by counsel at the purported execution of the agreement. These circumstances, taken together with petitioner’s lack of literacy in English and *23the other factors pointed out by the Surrogate, certainly raise an issue as to whether fraud procured and permeated this agreement. This question can only be resolved after a plenary hearing (see, Matter of Van Zandt, 117 AD2d 810, 812, and the cases cited therein). Accordingly, I would affirm the order of the Surrogate’s Court.
Carro, J. P., and Milonas, J., concur with Wallach, J.; Asch, J., dissents in an opinion.
Order, Surrogate’s Court, Bronx County, entered on September 22, 1987, reversed, on the law, and the respondent-appellant’s motion for summary judgment granted, without costs and without disbursements.