In a contested probate proceeding, upon a ruling made after close of all the evidence at a jury trial, dismissed all objectant’s objections as a matter of law, dismissed her third objection alleging that the will was procured by the undue influence of the petitioner, admitted the will to probate and awarded letters testamentary to the petitioner.
On 11 April 1986, the objectant appealed. The case was brought before the Supreme Court, Appellate Division, Second Department, Kings County.
The Supreme Court ordered the decree reversed insofar as appealed from, on the law, the words “and was not under restraint” were stricken from the first decretal paragraph thereof and a provision dismissing the appellant’s first and second objections was substituted therefor, the second and third decretal paragraphs thereof were stricken, and the matter was remitted back to the Surrogate’s Court, Kings County, for a new trial on the appellant’s third objection consistent with the Supreme Court’s order, with costs to abide the event payable out of the estate.
Sometime in 1977, the decedent, MB, executed a will. Under the will, MB’s estate would be distributed equally to her two sisters, who were then living, and the proponent of the will in question, PH, the surviving son of a third sister. In the event either of MB’s two sisters predecease her, their shares would go to the objectant, LM, the daughter of one of those sisters.
Sometime in December 1977, MB fractured a hip bone and PH came to her aid and assisted her in getting to the hospital. A few days after MB’s accident, PH ended his employment as a tenured college professor and devoted his energies to assisting his aunt in her affairs, primarily acting as her financial advisor. MB executed a power of attorney in favor of PH; MB’s securities were removed from her safe deposit box by PH and he transferred them to a box in his name; MB’s bank accounts were transferred by PH into an account in the joint names of MB and PH, and PH signed MB’s name on the account application at her request; PH arranged for the dividend checks from MB’s securities to be deposited directly into another joint account which was opened in a similar fashion; the bank statements from the joint accounts were sent to PH’s home although the proxy materials were sent to MB; and PH assisted MB in finding various nursing homes wherein she resided after her 1977 accident until her death in 1984.
Sometime in 1981, PH drafted and typed a new will for MB which named PH as the sole beneficiary and executor of her estate. By that time MB’s two sisters were already dead but no provision was made in the new will for LM.
At the trial, PH explained that he had opened the joint accounts, transferred the securities to his safe deposit box and prepared the second will, all at the request of his aunt, MB. According to PH, MB changed her will because he rescued her after her 1977 accident and he was the only relative who visited and cared for her while she was in the nursing homes; albeit, PH admitted that MB’s other relatives visited her infrequently.
On appeal, the objectant, LM, argued that the trial court should have submitted to the jury the issue of whether PH had unduly influenced MB in naming him as the sole beneficiary of her estate.
The Supreme Court agreed.
As discussed in a number of cases, undue influence can be shown by all the facts and circumstances surrounding the testator, the nature of the will, his family relations, the condition of his health and mind, his dependency upon and subjection to the control of the person supposed to have wielded the influence, the opportunity and disposition of the person to wield it, and the acts and declarations of such person. Indeed, the burden of establishing that there has been undue influence in a particular case rests upon the objectant and does not shift, where there is a confidential relationship between the decedent and the beneficiary/drafter of the will, the mere fact of the bequest, standing alone, permits an inference of undue influence, and the drafter then has the burden of offering an explanation, alternative to his influence, for the contested will.
Here, the jury could have found that a confidential relationship did exist between MB, a woman of advanced years, and PH, who drafted her will, in which he was named as sole beneficiary. Based upon the evidence proffered, it was clear that PH had control over all of MB’s assets and was managing all of her financial affairs. While PH offered an explanation as to why MB executed a will in his sole favor, such testimony merely created a question of fact for the jury as to whether the explanation was adequate.
Considering the foregoing, since the court erred in removing the question of undue influence by the proponent from the consideration of the jury, the Supreme Court ruled that the decree must be reversed insofar as appealed from and a new trial must be held on this issue only.
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