In a contested probate proceeding, the objectant appeals, as limited by her brief, from so much of a decree of the Surrogate’s Court, Kings County, dated April 11, 1986, as, upon a ruling made after close of all the evidence at a jury trial dismissing all her 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.
The testimony at the trial established that the decedent MB had executed a will in 1977 which would have distributed her estate 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 predeceased her, their shares would go to the objectant, LM, the daughter of one of those sisters. In December 1977MB 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.
Specifically, 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; and the bank statements from the joint accounts were sent to PH’s home although the proxy materials were sent to MB. In addition, PH assisted MB in finding various nursing homes wherein she resided after her 1977 accident and until her death in 1984.
In 1981, PH drafted and typed a new will for MB which named PH as the sole beneficiary and executor of her estate. Although by that time MB’s two sisters had died, 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. He thought MB had changed her will because he had rescued her after her 1977 accident and he was the only relative who visited her 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’s sole argument is that the trial court should have submitted to the jury the issue of whether PH had unduly influenced MB in naming him as sole beneficiary of her estate. We agree. 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 (Matter of Anna, 248 N.Y. 421, 424, 162 N.E. 473, quoting from Rollwagen v. Rollwagen, 63 N.Y. 504, 519). Although 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 (Matter of Collins, 124 A.D.2d 48, 54, 510 N.Y.S.2d 940).
In this case, 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. Specifically, the evidence showed that PH had control over all of MB’s assets and was managing her financial affairs. Although PH had offered an explanation as to why MB had executed a will in his sole favor, such testimony merely created a question of fact for the jury as to whether the proffered explanation was adequate (Matter of Burke, 82 A.D.2d 260, 274, 441 N.Y.S.2d 542; Matter of Elmore, 42 A.D.2d 240, 241, 346 N.Y.S.2d 182).
Since the court erred in removing the question of undue influence by the proponent from the consideration of the jury, the decree must be reversed insofar as appealed from and a new trial held on this issue only.
Accordingly, it is ordered that the decree is reversed insofar as appealed from, on the law, the words and was not under restraint are stricken from the first decretal paragraph thereof and a provision dismissing the appellant’s first and second objections is substituted therefor, the second and third decretal paragraphs thereof are stricken, and the matter is remitted to the Surrogate’s Court, Kings County, for a new trial on the appellant’s third objection consistent herewith, with costs to abide the event payable out of the estate.
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